Auton v Police
[2021] NZHC 1510
•23 June 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-409-000060
[2021] NZHC 1510
BETWEEN ANDREW MYERS AUTON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 22 June 2021 Appearances:
P N Allan for Appellant
S M H McManus for Respondent
Judgment:
23 June 2021
JUDGMENT OF GENDALL J
This judgment was delivered by me on 23 June 2021 at 3:30 p.m. pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
AUTON v NEW ZEALAND POLICE [2021] NZHC 1510 [23 June 2021]
Introduction
[1] On 5 March 2021 Judge Brandts-Giesen in the District Court dismissed the appellant Mr Auton’s application for a discharge without conviction in respect of one charge of cultivating cannabis.
[2] Following this, Mr Auton was then convicted and sentenced to 12 months’ supervision and ordered to pay a $750 fine and court costs.1 He now appeals that conviction and sentence and says he should have been discharged without conviction.
Background
[3] On 28 May 2020 police executed a search warrant at the address Mr Auton was occupying. When police searched this address, they located a cannabis cultivation inside the house.
[4] There were grow tents in various locations throughout, including the front hallway, kitchen, bathroom and a cupboard by the toilet. Each grow tent was fully sealed with a temperature regulator and ventilation system. In total there were 32 cannabis plants and 46 seedlings located. Scattered throughout the house were a significant number of grow nutrients and supplies. Overall a non-trivial operation.
[5] In explanation Mr Auton stated his flatmate started growing cannabis in the house but he accepted half were his, however.
[6] At the hearing of the District Court proceedings, it seems from Judge Brandts- Giesen’s remarks that Mr Auton interrupted the lawyers and the Judge on various occasions to put forward his story that the plants belonged to the flatmate who had moved out and that he had to take care of them during lockdown. He said the former flatmate and associates returned to the flat to harass him to ensure he was still cultivating the plants. Mr Auton also said he never personally used the cannabis. This was all unsworn evidence given from the dock.
1 Misuse of Drugs Act 1975 s 9(1); maximum penalty 7 years’ imprisonment.
[7] His counsel, Mr Allan, submitted the basis on which Mr Auton had pleaded was that he accepted he had cultivated the plants but that he did so because he felt he had no choice. The prosecutor, Mr Burdes, referred to Mr Auton’s DVD interview and noted he was maintaining the grow for at least two months and had plenty of opportunity to withdraw.
[8] The Judge began his decision by recording the fact no application for discharge was filed in advance of the hearing. Mr Allan instead advanced this by way of an oral application. The Judge commented this was unsatisfactory, as, he said, were Mr Auton’s inappropriate interruptions to “rectify what he considers to be inaccuracies in his own counsel’s submissions, and also in remarks made by Mr Burdes for the police”.
[9] The Judge did acknowledge the gravity of the offending here was low but found Mr Allan had not pointed to any particular circumstances that justified a discharge other than the usual stigma that follows a conviction. He therefore could not find the consequences of conviction were out of all proportion to the offending.
[10] Judge Brandts-Giesen then proceeded to sentencing. He placed the cultivation in the lowest band of R v Terewi because there was no evidence of commerciality.2 Then he considered Mr Auton’s statements from the dock. The Judge found Mr Auton was clearly more involved in the cannabis grow than he claimed and agreed with Mr Burdes that he had plenty of opportunities to withdraw. The Judge determined he could not grant a discharge without conviction on the evidence before him.
[11] The Judge was informed Mr Auton could not complete community work, so fined him $750 to be paid at the rate of $20 per week. The Judge also placed him on supervision for 12 months to “address any issues probation may identify, especially with respect to drugs and interpersonal relationships”.
2 R v Terewi [1999] 3 NZLR 62, (1999) 16 CRNZ 429.
Principles on appeal
[12] Section 107 of the Sentencing Act 2002 states an offender should only be discharged without conviction if the Court is satisfied the consequences of a conviction would be out of all proportion to the gravity of the offence. There must be a “real and appreciable” risk that any given consequence will occur.3 The gravity of the offence is informed by the aggravating and mitigating factors of the offending and the offender.4 A discharge without conviction may only be considered if this test is satisfied.
[13] An appeal against a discharge without conviction is dealt with as an appeal against conviction.5 The appeal will only be allowed if the Court is satisfied the Judge erred in their assessment of the evidence such that a miscarriage of justice has occurred or that a miscarriage of justice occurred for any other reason.6
[14] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.8 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.9
Grounds of appeal
[15]Mr Auton’s stated grounds of appeal are:
3 DC (CA47/2013) v R [2013] NZCA 255 at [43].
4 R v Taulapapa [2018] NZCA 414 at [22].
5 Jackson v R [2016] NZCA 627.
6 Jackson v R, above n 5, at [12].
7 Criminal Procedure Act 2011, ss 250(2) and 250(3).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Ripia v R [2011] NZCA 101 at [15].
1.I ought not have been convicted of this offence given my lack of previous convictions and my low level of culpability; and
2.The sentence imposed was manifestly excessive as the Judge effectively sentenced me and then added supervision on to [it] without it being either recommended by Probation or discussed with Counsel
[16] I take this to mean Mr Auton is saying he ought to have been granted a discharge without conviction rather than seeking to retract his guilty plea and appeal his conviction.
[17] Mr Auton filed his notice of appeal out of time, but the Crown does not oppose an extension of time being granted, accepting there is no prejudice to the Crown here. Leave to bring the appeal out of time is granted. I will now consider the appeal and its merits.
Submissions
Appellant’s submissions
[18] Mr Allan submitted Mr Auton should be discharged without conviction. He summarised his points thus:
(a)Mr Auton has no previous convictions;
(b)the offending only came to light as a result of the Police happening on it rather than an investigation;
(c)the offending did not involve harm or loss to any person;
(d)notwithstanding the maximum penalty for the offence the gravity of this type of offending is low;
(e)the offending came at a time shortly prior to a referendum as to legalization of cannabis;
(f)Mr Auton’s explanation for performing acts of cultivation related to being subject to intimidation and of having little alternatives available; and
(g)while no particular circumstances are made out Mr Auton would have a “blotting of his copybook” and the resultant stigma of conviction.
[19]Overall, Mr Allan contended the gravity of the offending here was very low.
[20] In the alternative, Mr Allan submitted the supervision component of Mr Auton’s sentence was manifestly excessive. He said the Judge did not have the benefit of a pre-sentence report or indeed any material suggesting Mr Auton had rehabilitative needs. He noted, first, that the Judge set supervision at its maximum length to “address any issues probation may identify [emphasis added]”. Secondly, he said supervision was not contended for by the prosecutor or raised by the Court as a possible sentence.
[21] Mr Allan submitted the appropriate sentence was instead a $750 fine to be paid in instalments if Mr Auton was not to be discharged without conviction.
[22] I also note for completeness two further matters. First, at the conclusion of the appeal hearing before me, Mr Auton asked whether he could make a statement to the Court. I agreed and Mr Auton then spoke for a short time regarding matters he wished to put before the Court. I have taken those matters raised into account in reaching my decision on this appeal.
[23] The second matter occurred this morning, 23 June 2021, when the Registry office in this Court received from Mr Auton an email raising a number of other matters which he wished me to consider relating to his appeal.
[24] I have also had an opportunity now to consider these additional matters which Mr Auton has raised in his email today, and I confirm that I have carefully taken into account all matters he has raised which are relevant to this appeal.
Respondent’s submissions
[25] Ms McManus for the respondent, first, made submissions on the application for discharge without conviction. She said points (b) and (e) at para [18] above, raised by Mr Allan do not mitigate the gravity of the offending. Ms McManus maintained that this was a relatively sophisticated cultivation operation, there was no evidence to support Mr Auton’s statements and claims from the dock, and the gravity of the offending in reality was at a greater level than Mr Allan suggested, being low to moderate.
[26] Ms McManus submitted the natural consequences of a conviction referred to by Mr Allan were not out of all proportion to the gravity of the offending. Overall, she said no evidence had been provided that could convince this Court there was a miscarriage of justice.
[27] On the sentence appeal, Ms McManus contended that the Judge had not accepted Mr Auton’s evidence from the dock and was entitled to do so. He maintained the sentence of supervision in addition to a fine was within the range available and was not manifestly excessive.
Analysis
[28] The tariff case on cannabis cultivation is R v Terewi.10 There the Court of Appeal divided cannabis cultivation offending into three broad categories. Only category one is relevant here:11
Category 1 consists of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence.
[29] I accept this was a non-trivial operation. The grow was relatively sophisticated with a number of sealed growing tents which were temperature regulated and ventilated. But, as has been generally accepted by the Crown, there is no evidence the cannabis was intended for sale. It is therefore category one offending.
10 R v Terewi, above n 2.
11 At [4].
[30] I agree with Ms McManus that the fact the offending was discovered without significant investigation and this occurred just prior to the cannabis referendum, does not reduce the gravity of the offending. Offending is not necessarily more serious because it is the target of a police operation, and cannabis cultivation remained an offence at the relevant time notwithstanding the upcoming referendum. For similar reasons I do not accept Mr Allan’s submission that the gravity of this type of offending is especially lower than the maximum penalty for the offence.
[31] I do, however, consider Mr Auton’s lack of previous convictions and the fact there is no evidence of harm or loss to another person as generally reducing the gravity of the instant offending.
[32] Mr Auton’s pleas in mitigation from the dock and those raised by Mr Allan are a different matter, however. The Sentencing Act states that if a disputed fact in mitigation is raised at sentencing the prosecution must disprove it beyond reasonable doubt unless it is wholly implausible or manifestly false.12 The reverse onus does not apply because the facts raised are related to the nature of the offence and Mr Auton’s part in the commission of the offence.13
[33] The mitigating facts raised are that Mr Auton was subject to intimidation and had little by way of an alternative available. I find the suggestion that he had little alternative available manifestly false. He did not have to maintain the grow for the two months he did. And it seems, given the level of sophistication and comment in the summary of facts that the plants appeared of good quality, he was maintaining the grow with some care and attention.
[34] In addition, Mr Auton pleaded guilty to the police summary of facts which notes his comment that his flatmate started growing the plants, but he acknowledges half were his. Given this plea he cannot now say all of the plants were his flatmates. That admission must cut across any plea in mitigation that he had little alternative available.
12 Sentencing Act 2002, s 24(2)(c).
13 Sentencing Act, s 24(2)(d).
[35] The suggestion he was subject to intimidation, however, has not been disproven beyond reasonable doubt on the evidence I have reviewed. Nor can I say it is wholly implausible. In the District Court proceedings Mr Allan recounted what seems to have been a perfect storm of circumstances that led Mr Auton to be residing at the address where the cultivation occurred. Within those circumstances it is at least plausible Mr Auton may have been intimidated into continuing cultivation. That mitigating fact must go some way to reducing the gravity of his offending.
[36] Having said that, I reject Mr Allan’s characterisation of the gravity here as “very low”. It was still a non-trivial number of plants that were maintained in a somewhat sophisticated manner. And this is an offence punishable by a maximum penalty of 7 years’ imprisonment. The gravity of the offending was perhaps moderate or even low, but not very low.
[37] Following that finding, and the fact Mr Allan has not referred to any particular consequences of a conviction, it cannot be said that the consequences of conviction are out of all proportion to the gravity of the offending. Indeed, Mr Allan seemed to accept in the District Court proceedings that this offending could rightly be punished by a fine at least. No miscarriage of justice has occurred here, therefore, and the appeal against conviction is dismissed. It is also worth noting, though I did not give it any weight, that Mr Auton has twice previously been discharged without conviction.14
[38]I turn now to the appeal against sentence.
[39] Section 46 of the Sentencing Act states a sentence of supervision may be imposed:
only if the court is satisfied that a sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
[40] Judge Brandts-Giesen in the District Court was clearly satisfied as such or he would not have imposed the sentence.
14 Indeed, as to one of these, in a relatively recent decision of Clark J in this Court on 4 December 2019 (Auton v Police [2019] NZHC 3178) her Honour allowed an appeal and discharged Mr Auton under s 106 Sentencing Act on charges relating to his estranged partner of discharging a firearm, wilful damage and breach of a protection order.
[41] The hierarchy of sentences and orders in the Sentencing Act places supervision one step higher (alongside community work) than a fine or reparation.15
[42] I do not give great weight to Mr Allan’s submission relating to the unexpectedness of the supervision sentence. The Judge clearly signalled when he began his remarks that he would have considered community work and in any event was not restricted by the submissions of either party. The question for this court is whether the sentence imposed was manifestly excessive.
[43] The Sentencing Act includes a presumption in favour of a fine unless the offender does not have the means to pay it or the purposes and principles of sentencing cannot be achieved by imposing a fine.16
[44] In Riches v Police, Nation J, on appeal, imposed a fine of $1,700 and 12 months’ supervision for the cultivation of six mature cannabis plants and two smaller plants.17 The offender there was a first offender and pleaded guilty promptly. At first glance, Mr Auton’s offending was more severe, given it involved 26 more plants and 46 seedlings. Even considering the mitigating factor that Mr Auton may have been intimidated into continuing the cultivation, the cases must be regarded as of at least comparable gravity. The fine in Riches was more than twice the fine imposed by the Judge here, and the supervision the same. The present sentence was therefore clearly within range.
[45] Having regard to this comparable case and the purposes and principles of sentencing generally, in my view, it cannot be reasonably said that this sentence was excessive, let alone manifestly so. In all the circumstances prevailing in the present case, I am satisfied a fine, together with supervision, was the appropriate sentence.
15 Sentencing Act, s 10A(2).
16 Sentencing Act ss 13(1) and 14.
17 Riches v Police [2017] NZHC 2035.
Conclusion
[46] For all these reasons, I conclude that Judge Brandts-Giesen did not err in any way in his assessments here. This appeal is dismissed.
...................................................
Gendall J
Solicitors:
Crown Solicitor’s Office, Raymond Donnelly & Co, Christchurch
Copy to:
Phillip Allan, Barrister, Christchurch
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