Braun v The Queen

[2005] NZCA 171

IN THE COURT OF APPEAL OF NEW ZEALAND

CA100/05

THE QUEEN

v

MARK STUART BRAUN

Hearing:28 June 2005

Court:Anderson P, Williams and Doogue JJ

Counsel:D J Allan for Appellant

H D M Lawry for Crown

Judgment:29 June 2005 

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS

(Given by Doogue J)

Introduction

[1]       Mark Stuart Braun appeals against a sentence of two and a half years imprisonment imposed upon him by Judge Maze following a jury trial in the District Court at Hamilton for the offence of cultivation of cannabis.  The appeal is brought upon the ground that the sentence imposed is manifestly excessive.

[2]       There were two other people sentenced in respect of the same cultivation.  The cultivation of the cannabis involved was at a property under the control of a man named James Brown.  He pleaded guilty to the offence and was sentenced by a different Judge to four years imprisonment.  A five year term of imprisonment was taken as a starting point in that instance, with a discount of one year for the plea of guilty.  The other co-offender, Lisa May Brown, stood trial with the appellant.  It is common ground that her position is so different that the particulars relating to her sentence are irrelevant. 

Background

[3]       The cannabis cultivation involved came to light on the execution of a search warrant.  At the end of March 2003 the police found an elaborate hydroponics cannabis growing operation inside a house at Cambridge.  The operation involved a carbon dioxide ventilation system along with other sophisticated aids.  The extent of the cultivation was considerable.  Mr Brown was sentenced upon the basis that because of the ability to harvest the crop every 12 weeks, there was an estimated annual revenue for the crops found of the order of $267,000.  That was not challenged at the sentencing of the appellant.

[4]       The extent of Mr Brown’s cultivation was indicated by the fact that in one room there were some 42 plants; in another room 24 plants; and in a third room 20 plants.  In addition the police at the time of the search found 115 heads of cannabis in the lounge in the property.

[5]       The appellant’s involvement in this cultivation related to assisting Mr Brown obtain carbon dioxide cylinders.  There was evidence from a carbon dioxide supplier that it had refilled cylinders on Mr Brown’s account 15 times during the years 2001 to 2003.  There was further evidence that the appellant had uplifted full cylinders of carbon dioxide from the supplier on eight occasions over nine months. 

[6]       It appears that the appellant agreed to deliver the cylinders to Mr Brown because the latter had a hernia.  The appellant would go to Cambridge, pick up a trailer, put the empty cylinder on it at Mr Brown’s premises, drive to the Hamilton supplier of the carbon dioxide, exchange the bottles and drive back to Cambridge and unload the full bottle of carbon dioxide at the corner of the woodshed on Mr Brown’s property. 

[7]       At trial the appellant denied that he had any knowledge of what Mr Brown required the carbon dioxide for.  However, the jury clearly rejected that denial having regard to the conviction.  That was understandable given that there was similar fact evidence of the appellant’s previous conviction for the cultivation of cannabis involving the use of carbon dioxide.

Sentencing

[8]       The 42 year old appellant has 12 previous convictions, five of which are for drug offending.  The most significant of those was for the cultivation of cannabis and the possession of the equipment for its production for which he was sentenced to two and a half years imprisonment in August 1999.  In 1995 he had been convicted and sentenced for manufacturing cannabis oil.  On that occasion a conviction for cultivating cannabis resulted in a conviction and discharge.

[9]       The Judge traversed the background to the offending and the appellant’s circumstances.  She noted that in the sentencing of Mr Brown the Judge had accepted that the cultivation involved fell within the category 3 of the R v Terewi [1999] 3 NZLR 62 classification. She accepted that the appellant’s involvement was more limited than that of Mr Brown. She sentenced the appellant upon the basis of his delivering the carbon dioxide cylinders on eight occasions in nine months.

[10]     The Judge rejected a submission that the appellant had no idea of the size of what was going on because he did not go into the house.  She said:

Plainly, the trouble and expense of what you were doing and the repetition of it, almost monthly, would have told you something about the size and scale of the operation.

[11]     The appellant’s mother died of cancer in 2002 with the appellant nursing her through the last couple of years of her life.  The appellant is a qualified mechanic who has owned various businesses and more recently began a plant business.  He admitted to being an occasional cannabis user. 

[12]     The Judge went on to record the limited influence of personal factors in respect of drug offending.  She then said:

Nevertheless, having regard to those mitigating factors and having regard to the fact that you were involved to a lesser degree than Mr Brown, I take a starting point of half that used by Judge Wolff, two years six months.  I am unable to take any other credit into account because this matter proceeded to trial.

[13]     The Judge went on to impose the sentence under appeal.

The appeal

[14]     It is properly accepted for the appellant that the cultivation was within category 3 in the Terewi classification and that the appellant’s previous drug conviction history was a serious aggravating factor.

[15]     It is, however, submitted for the appellant that if due weight had been given to his limited involvement as a party to the cultivation, the appropriate sentence should have been two years imprisonment, being two fifths of the starting point taken for Mr Brown.

[16]     The appellant takes issue with two of the statements by the Judge in her sentencing remarks.  First, the Judge incorrectly said that the appellant had established the account with the supplier for the carbon dioxide.  That may be, but it is apparent that the Judge placed no emphasis on this in respect of her sentencing – it was the delivery that she concentrated upon.  We say no more about it. 

[17]     Second, the Judge said that the repetition almost monthly of supplying the carbon dioxide would have told the appellant “something about the size and scale of the operation”.  The appellant denies this but, having regard to both his previous offending when the same type of cultivation was used and the jury’s verdict, the Judge was fully entitled to say what she said.

[18]     It was submitted for the appellant that he can only be sentenced on the basis that on eight occasions he aided the principal offender by delivering carbon dioxide to Mr Brown in a nine month period.  However, that is precisely the basis upon which the Judge sentenced the appellant, as is noted in her sentencing remarks.

[19]     It was submitted the fact that the appellant received a similar sentence in 1999 does not weaken the appellant’s argument on this appeal as the earlier offending was more serious and distinguishable because on that occasion the appellant was the principal offender.  However, the Judge did not directly refer to the earlier sentencing at all for the purpose of making her own assessment of the appropriate sentence.

[20]     The nub of the appellant’s submissions was that having regard to his limited involvement as a party, a sentence of half of the starting point taken for Mr Brown is manifestly excessive and that a sentence of two years imprisonment would in all the circumstances have been appropriate. 

[21]     The Judge in making her assessment of comparative culpability had clearly taken into account the different nature of the involvement of Mr Brown and the appellant in the offending and the appellant’s exact role in it.  When sentencing the appellant she had not taken into account her error relating to the appellant setting up the carbon dioxide account.  She had taken into account the appellant’s personal circumstances, at least to some limited extent.  On the other hand, she had not placed any emphasis whatever on the serious aggravating circumstances of the appellant’s prior offending, notwithstanding that she had traversed that and the appellant’s use of carbon dioxide for that cultivation, in her sentencing remarks.

[22]     In essence, the Judge was faced with sentencing the appellant for a lesser but significant involvement in the cultivation of cannabis within category 3 in the Terewi classification.  A serious aggravating circumstance relating to that offending was the appellant’s previous conviction for similar cultivation.  In those circumstances it cannot possibly be said that a sentence of half that taken as the starting point for the principal offender was excessive, let alone manifestly excessive.  Indeed, the appellant could perhaps regard himself as fortunate that the Judge did not think it appropriate to impose a greater sentence having regard to the 1999 sentence imposed upon the appellant. 

[23]     We have no doubt, therefore, that the appeal must be dismissed. 

Result

[24]     The appeal is dismissed.

Solicitors:

Meredith Connell, Auckland