Anderson v The Queen

[2004] NZCA 95

IN THE COURT OF APPEAL OF NEW ZEALAND

CA27/04

THE QUEEN

v

MATHEW THOMAS ANDERSON

Hearing:17 June 2004

Coram:Glazebrook  J
Paterson J
Doogue J

Appearances:  B S Yeoman for Appellant

K G Stone for Crown

Judgment:23 June 2004 

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

[1]       Mathew Thomas Anderson appeals against conviction and sentence.  He was convicted along with other persons following a jury trial in the Wellington High Court of cannabis cultivation, possession for supply and participating in a criminal group.  He was found not guilty of a count of possession of a precursor substance, pseuodoephedrine.  He was sentenced on 18 December 2003 by Frater J, the trial Judge, to three and a half years imprisonment.

Background

[2]       The appellant was charged along with five other people.  The offence relating to the cultivation of cannabis referred to a Wainuiomata address.  The offence relating to possession for supply related to a Naenae address.  The police had been watching the Naenae address in November 2002.  On 19 November 2002 the police arrested the appellant and a co-accused, Terence Toman, as they left the premises.  The police found more than 20 kilograms of cannabis within the premises drying on racks.  An oil heater had been purchased about a month before for the purpose of drying the cannabis.  The appellant’s fingerprints were found on the heater in the drying room in the premises adjacent to the cannabis that was being dried.  Eight ounce (28 grams) plastic bags of cannabis were found in the drying room fully dried, along with eight tinfoil packages of cannabis.  There was a jar of methanol, which also contained pseudoephedrine, and another container which had pure paracetamol in it, that being a waste product of cold tablets to make pseudoephedrine. 

[3]       There was evidence of a connection between the Naenae premises and the property at Wainuiomata.  The appellant lived in the Wainuiomata property.  When the police went there after arresting the appellant they found that the house had been used for the purposes of growing cannabis.  There had been alterations to electrical supply, with holes cut in walls and ceilings.  There were remnants of ducting, aluminium foil and some small amounts of cannabis plant lying about.  The property had clearly been vacated in a hurry. 

[4]       There was evidence that all of the accused were in some way or another associated with the Mongrel Mob gang and well known to each other.  The Crown case was that the Naenae premises were being used for an unlawful purpose, and for little if anything else, namely, as a factory of storage facility for illicit drugs that were to be sold and that this was a large scale commercial operation.

Appeal against conviction

[5]       The appellant was the only one of the accused to give evidence at the trial.  The effect of his evidence was that he had indeed been growing cannabis at the Wainuiomata property but he maintained his plea of not guilty.  On the possession for supply charge he claimed that the cannabis was all for his own use and that he had taken cannabis still not fully dried from the Wainuiomata to the Naenae property.  The jury by their verdict rejected the explanation the cannabis was for the appellant’s own use, as they are entitled to do.  As the Crown submits, the total quantity of cannabis, the presence of packaged bags and the extent of the operation in the Wainuiomata house all pointed to a commercial operation. 

[6]       The appellant went on to say in his evidence that he believed that he had the right to use cannabis as this was attributable to the tenets of his religious belief as a member of the Nazarite sect of the Rastafarian religion. At trial he attempted to justify his belief by reference to an extract from the book of Genesis.  In support of this appeal it is said that the particular sect believed that the smoking of cannabis enhances spirituality and brings people closer to God.

[7]       It is submitted by the appellant that a failure by the learned trial Judge to direct the jury of the significance of his belief constituted a breach of his religious rights as enshrined in s15 New Zealand Bill of Rights Act 1990 and s21(1)(c) Human Rights Act 1993.   In particular he says there is a breach of his right to observe and practice  his religious beliefs in respect of the consumption of cannabis.

[8]       The trial Judge in his summing up made clear that the appellant did not see that having and consuming cannabis was wrong and that it was for his own use. 

[9]       The appellant seeks to avoid conviction by reliance on beliefs that are in conflict with the law.  There is nothing in the Bill of Rights Act and the Human Rights Act or elsewhere in the law that enables the appellant to set up his beliefs as a defence to particular crimes.  He is entitled to hold these beliefs but he is obliged to abide by the law.  As is made clear in R v Taylor (Paul) [2002] 1 CR AWP R 37, prohibitions contained in an act such as the Misuse of Drugs Act do not amount to interference with rights such as those relied upon by the appellant here.  The prohibitions contained in the Misuse of Drugs legislation are part of a policy to combat the dangers of narcotic drugs to public health and have to be distinguished from the prohibition of conduct because it is related to or motivated by religious belief. 

[10]     The appellant submits that a failure by the trial Judge to properly instruct and direct the jury of his religious beliefs and practices resulted in a miscarriage of justice.  However, as already noted the appellant’s beliefs cannot provide a defence in respect of a breach of the Misuse of Drugs Act.  His beliefs are not even relevant to the appropriate sentence to be passed upon him let alone to whether or not he was guilty of an offence: see  R v Daudi and Daniels (1982) 4 CR App R (S) 306.  It was noted in this case that it would be contrary to justice to say “because you are a Rastafarian you are entitled to be treated entirely differently from other members of the community if you choose to break the law relating to the supply and distribution of cannabis” (307).

[11]     The appellant further submits that the trial Judge erred in that she misunderstood the significance of his religious beliefs.  However this relates to comment by her in her sentencing notes and it cannot be relevant to the appellant’s conviction.  In fact the passage the appellant relies upon as indicating a misunderstanding came direct from the pre-sentence report which purported to be quoting the appellant himself.

[12]     There is therefore no substance whatever in the appeal against conviction and it must be dismissed.

The sentence appeal

[13]     The case for the appellant is that the sentence imposed is manifestly excessive and should be reduced to reflect the fundamental importance of his religious beliefs and practices.  We have already referred above to the fact that his religious beliefs and practices have no relevance in determining either his guilt or the appropriate sentence.  The only issue can be whether the sentence of three and a half years imprisonment imposed upon the appellant is manifestly excessive in all the circumstances of the case.

[14]     It is submitted for the appellant that the starting point taken by the Judge of four years imprisonment was manifestly excessive when viewed in the light of the decision in R v Terewi [1999] 3 NZLR 62. It was submitted a much lesser starting point should have been taken before credit was given for the mitigating circumstance acknowledged by the Judge.

[15]     The sentencing Judge took the view that the appropriate starting point for the criminality involved was at the top of the second category identified in Terewi or at the beginning of the third.  It was the evidence of the appellant that when dried the cannabis would reduce to approximately 4lbs dry weight.  However, it was not incumbent upon the trial Judge to accept that assessment in respect of the quantity involved.  She was fully entitled to take the view on the material before her that this was a substantial commercial cannabis operation.  The evidence relating to the Wainuiomata premises was of itself sufficient to support that proposition.  There were several people involved.  The quantity actually found at the time of the arrest was simply the amount then in the hands of the individuals arrested.  The appellant had acknowledged that a number of crops could be grown in the year and that there was a 12 to 14 week growing cycle.  It was at least open to the Judge to take the view that the amount found at the time of the arrests was not the first cultivation.  The appellant had occupied the Wainuiomata premises for a considerable period and the plants found were still in the process of drying.

[16]     We therefore regard the four year starting point as well within the Judge’s discretion when all the circumstances are taken into account.

[17]     The appellant could perhaps regard himself as fortunate that having taken a starting point of four years the Judge gave him some credit for admitting his guilt, albeit at trial.  The appellant’s admission during the course of trial to the cultivation of cannabis furthered his defence that the cannabis was for his own use.  He did not in fact plead guilty.  The admission of guilt also took responsibility away from his co-accused.  In those circumstances there was little or no public benefit to be gained from the admission.

[18]     The appellant could also regard himself as fortunate that the Judge did not treat the discount she allowed as being more than outweighed by the aggravating circumstances relating to the appellant.  He was aged 32 years at the time of sentencing.  He had a long list of previous convictions extending over some 18 years, including drug offending.  The pre-sentence report made clear there was a high risk of re-offending.  In addition the Judge imposed a concurrent rather than a cumulative sentence in respect of the offence of being a member of an organised criminal group.  She recognised it as an aggravating feature of the offending.  Overall, therefore, the appellant is fortunate that the Judge did not increase the sentence to be imposed from the starting point for the aggravating features. 

[19]     However we approach the matter we could not regard the sentence of three and a half years imprisonment imposed upon the appellant for his part in the offending as being manifestly excessive.  As already indicated the appellant could perhaps think himself lucky that a heavier sentence was not imposed.

Result

[20]     Both the appeal against conviction and the appeal against sentence are dismissed.

Solicitors:
B S Yeoman, Lower Hutt for Appellant
Crown Solicitor, Wellington