Campbell v The Queen
[2015] NZCA 105
•31 March 2015 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA469/2014 [2015] NZCA 105 |
| BETWEEN | DAVID MAURICE CAMPBELL |
| AND | THE QUEEN |
| CA471/2014 | |
| AND BETWEEN | DAVID JOHN CORK |
| AND | THE QUEEN |
| Hearing: | 12 March 2015 |
Court: | Stevens, Asher and Williams JJ |
Counsel: | N G Cooke for Appellants |
Judgment: | 31 March 2015 at 11.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
David Campbell and David Cork appeal against the sentences imposed on them following their guilty pleas to charges of cultivating cannabis. They were jointly charged with cultivating 220 plants in six separate plots in the Aupouri Forest. On the day of their arrest in the forest, they were also found carrying two chilly bins containing 141 seedlings in total. There was also a nearby hothouse area containing an additional 56 seedlings.
In addition, Mr Campbell was convicted of cultivating cannabis at his home at Coopers Beach. A search of that property revealed 172 freshly-cloned cannabis plants in one room lit by specially-placed fluorescent lights. In another room there were 56 plants, approximately 40 centimetres in height, in which there were high pressure sodium lights. A further 12 plants of approximately 30 centimetres in height were located outside the house.
Messrs Campbell and Cork were sentenced by Judge McDonald on 22 May 2014.[1] The Judge considered that the Aupouri Forest offending fell within category two of those referred to in the guideline judgment of R v Terewi, towards the upper end of that band.[2] He fixed a starting point of three years and five months for both of them. There was an uplift of nine months for Mr Campbell because of the Coopers Beach offending. The Judge then allowed both a 20 per cent discount for their guilty pleas, and Mr Cork an additional 10 per cent discount for good character and time spent on restrictive bail. In the end Mr Campbell was sentenced to two years and 10 months’ imprisonment and Mr Cork to two years and three months’ imprisonment.[3]
The starting points
[1]R v Campbell DC Kaikohe CRI-2012-029-1152, 22 May 2014.
[2]R v Terewi [1999] 3 NZLR 62 (CA) at [4].
[3]R v Campbell, above n 1, at [12]–[13].
Mr Cooke for Messrs Campbell and Cork submitted the Judge’s starting point in each case was too high. He argued that the Judge had over-estimated the potential yield from the cannabis seedlings and had wrongly placed the offending towards the upper end of category two, when it should have been towards the lower end. It is necessary therefore to consider culpability.
Category two of R v Terewi encompasses small scale cultivation of cannabis plants for a commercial purpose, that is, with the objective of deriving profit. The starting point for sentence is generally between two and four years.[4] Category three is the most serious category for such offending. It involves large scale commercial growing, usually with a considerable degree of sophistication and organisation. The Court also stated that:[5]
It will be helpful to sentencing Judges if prosecutors bring evidence of the likely amounts of annual gross revenues, or turnover, obtained by the offender from a cannabis growing operation or which the offender must have anticipated deriving from the activity. That will reflect crop cycles and yields and will be a better measure of the size of an operation than simple reference to the number of plants which have been found. The sentence should also take into account the period over which the offending has continued.
The Court considered that in 1999 values, annual revenues of more than $100,000 in cash would place the cultivation operation clearly within category three.[6]
[4]R v Terewi, above n 2, at [4].
[5]At [6].
[6]R v Terewi, above n 2, at [11].
Mr Cooke was right to submit that the Aupouri forest offending was not particularly sophisticated. The operation featured a hothouse with 26 female cannabis plants dug into a mixture of sand and soil, with each plant having cloth grow-bags around its roots.[7] Green fertiliser balls and lime chalk fertiliser were on the ground around the plants. The hothouse was covered with plastic and had tree branches over the top to conceal it. Black plastic sheets covered the ground inside the structure. There was a water source near the hothouse which had been dug into the ground and which was lined with black plastic to hold water. Inside the water source were plastic bottles used to fill the pressure sprayer.
[7]Only female cannabis plants produce buds.
The Police estimated that if all the plants in the forest grew to maturity and the cannabis was sold, the potential value of the yield was between $390,000 and $1,320,000.
The offending by Mr Campbell at Coopers Beach was more sophisticated. Equipment located included power-lighting control gear, a roof-mounted exhaust fan, an analogue timer, light shades, lighting ballasts and high wattage lightbulbs. There was artificial lighting to promote growth in two rooms. If grown to maturity the 56 plants growing under lights would have had a potential yield of between $17,500 and $84,000; more if sold in smaller quantities. The potential yield would have been much higher if the freshly cloned plants and those plants located outdoors grew to maturity.
There was therefore a sound argument that the potential yield placed the offending into category three. The Judge refused to do that. He noted that the potential yields might not be achieved for a whole variety of reasons, including natural attrition.[8] We do not accept Mr Cooke’s submission that the Judge should not have taken into account potential yields, given that the plants were young, and there were many reasons why they might not grow to maturity. The Judge was carrying out the prospective analysis approach in R v Terewi and very clearly was aware of the possibility of attrition.[9]
[8]R v Campbell, above n 1, at [10].
[9]At [4]–[5].
We think the Judge was right to place the offending at the top end of category two, given the uncertainty as to what yield would have been ultimately achieved. We do not agree with Mr Cooke that it should be towards the bottom end of category two. The multiple plots and hothouse showed a considerable enterprise involving considerable work. The potential was for a very good profit. So also with the Coopers Beach operation, although the potential quantities were less.
Mr Cooke sought to rely on other sentencing decisions, but we do not consider any of them to be helpful, particularly where there is a guideline judgment of this Court. Each case must be considered on its merits, in the light of the guideline indications in R v Terewi. Applying that case we conclude that the Judge reached the correct starting points.
We turn to the discounts allowed by the Judge. The case against the defendants was very strong. Mr Cooke did not seriously challenge the 20 per cent discount allowed for the guilty plea. He did draw our attention to the differential between Messrs Campbell and Cork, where Mr Cork was given an approximate 10 per cent discount for good character, and Mr Campbell was not.
We consider that the differential accurately reflected the difference in the personal factors relating to each defendant. Although both could claim the same 20 per cent discount for the guilty plea, Mr Campbell had previous convictions for cultivating cannabis in 2008 and 2004. He also had a record of other offending including possession of cannabis plants and cannabis seed, and some driving and dishonesty offending. The Judge could not have given Mr Campbell any discount for good character. Mr Cork on the other hand had a much better record, and in particular no previous record of cultivating cannabis. The discount he was given was within the Judge’s discretion.
While both Mr Campbell and Mr Cork are in stable relationships and employment, no further discount was available for such personal circumstances. We can see no error, in principle or arithmetic, on the part of the learned Judge. The end sentences were not manifestly excessive.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent