Baker v The Queen

[2005] NZCA 41

IN THE COURT OF APPEAL OF NEW ZEALAND

CA354/04

THE QUEEN

v

SELWYN WALTER BAKER

Court:McGrath, Glazebrook and William Young JJ

Counsel:R L Thomson for Appellant

S E McKenzie for Crown

Judgment (On the Papers):     14 March 2005 

JUDGMENT OF THE COURT

The appeal is allowed.  The sentence is reduced to 100 hours community work.

REASONS

(Given by William Young J)

Introduction

[1]       On 28 June last year, the appellant was sentenced by Judge Morris in the District Court at Auckland to 330 hours community work.  He had earlier pleaded guilty to a charge of possessing equipment capable of being used in the cultivation of a prohibited plant with the intention of using it for that purpose. 

[2]       He now appeals against sentence.

[3]       This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions from the appellant and the Crown, which have been received in accordance with r 29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

The facts

[4]       The facts lie within a narrow compass.

[5]       The equipment in question was found in a partitioned growing room in a bedroom in the house the appellant was living in.  It consisted of growing lights, a reflector shield, an extractor fan, electric pumps, a transformer and a heater unit.

[6]       Approximately 850 grams of cannabis plant material was also found.

[7]       Additionally, the police found equipment which was apparently intended to be used for the manufacture of methamphetamine. 

[8]       The appellant was initially charged in respect of both sets of equipment (and indeed in other respects as well).  But in the end the Crown accepted a plea of guilty in relation to the cannabis growing equipment.

The appellant

[9]       The appellant is now 37.  He has a significant number of previous convictions going back to 1981, including two for cultivating cannabis and four in relation to more minor cannabis offences.  It is right to say that in recent years his offending has diminished in seriousness and frequency.

[10]     At the time of his sentencing he was in full time employment and living with his teenage son and daughter in the rented accommodation in which the equipment was found.

The approach of the Judge

[11]     In his sentencing remarks the Judge said that it was quite clear that the appellant was about to embark on “what could well be categorised as a professional drug crime”.  Later he put it slightly more strongly, saying that the appellant had been “tooling up as it were to get into, what I have already described as professional drug crime.”  He went on:

It is quite clear that it is lucky for him that he was caught when he was because if he had fully tooled up an operation he would be going to prison, and would be going to prison for somewhere between three and six years.

[12]     In the end the Judge stepped back from imposing a prison sentence.  In this he was influenced by concessions made by the prosecutor and a favourable recommendation from the pre-sentence report writer.  As noted already, the sentence imposed was 330 hours community work.

The arguments on appeal

[13]     In her submissions for the appellant, Ms Thomson made two important points:

(a)Following his initial arrest, the appellant was in custody for some 23 days before being granted bail.  This was not referred to by the Judge.

(b)The Judge’s conclusion that the cannabis growing operation envisaged by the appellant would have involved “professional drug crime” which if carried into execution might have warranted a sentence in the order of three to six years imprisonment was inappropriate and went beyond the Crown submissions.

[14]     The Crown notes that the offence carries a maximum sentence of five years imprisonment.  While accepting that the appellant ought to have been sentenced on the basis that he intended to grow cannabis for personal use only, the Crown contends that the sentence imposed was within range and that “the appellant could think himself fortunate not to have received a short sentence of imprisonment.”

Evaluation

[15]     The 23 days which the appellant spent in prison on remand is the equivalent of a prison sentence of around six or seven weeks. This consideration was not referred to by the sentencing Judge and may not have been brought to his attention (which in effect is what was said in the notice of appeal).

[16]     In a context in which the Crown accepts that the appellant should have been sentenced on the basis the proposed offending was not commercial, the remarks by the Judge about “professional drug crime” were unfortunate. 

[17]     Had the appellant been on bail throughout, from arrest to sentencing, we would have seen the 330 hour sentence as stern although just in the available range given the appellant’s prior convictions.  But in light of the apparent non-allowance for the period spent in custody on remand, we are satisfied that the sentence is excessive and must be reduced.

[18]     The case was originally directed to be heard on the papers because, at that time, it was seen as having no substantial prospects of success.  As is apparent, having seen the arguments, we take a different view.  Had the case been of more moment or more closely balanced, we might have been inclined to direct an oral hearing.  Being, however, of the view that the appeal ought clearly to be allowed we consider that it is appropriate to determine the case on the papers.

Result

[19]     The sentence is reduced to 100 hours community work.

Solicitors:
Crown Law Office, Wellington