Campbell v The Queen - [2015] NZCA 105

IN THE COURT OF APPEAL OF NEW ZEALAND

CA469/2014
[2015] NZCA 105

BETWEEN	DAVID MAURICE CAMPBELL Appellant
AND	THE QUEEN Respondent

CA471/2014
AND BETWEEN	DAVID JOHN CORK Appellant
AND	THE QUEEN Respondent

Hearing:	12 March 2015
Court:	Stevens, Asher and Williams JJ
Counsel:	N G Cooke for Appellants W P Cathcart for Respondent
Judgment:	31 March 2015 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Campbell v The Queen

Details

AGLC: Campbell v The Queen [2015] NZCA 105
Case: [2015] NZCA 105
Decision Date: 31 March 2015 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, David Maurice Campbell and David John Cork appealed against their sentences for cultivating cannabis plants. The appellants were jointly charged with cultivating 220 plants in six separate plots in the Aupouri Forest, and Mr. Campbell was additionally charged with cultivating cannabis at his home in Coopers Beach. The Court of Appeal needed to determine whether the trial judge's assessment of the starting point for the sentence was correct and whether the discounts applied to the appellants' sentences were appropriate.

The Court of Appeal found that the trial judge was correct in assessing the starting point for the sentence. The appellants' operation was not highly sophisticated, but it involved multiple plots and a hothouse, indicating a considerable enterprise. The potential profit from the operation was significant, leading the trial judge to place the offending towards the upper end of category two. The Court of Appeal found that the trial judge had adequately considered the potential yields and the possibility of natural attrition. The Court of Appeal also found that the discounts applied to the appellants' sentences were appropriate, considering their criminal records and personal circumstances. The Court of Appeal concluded that there was no error in principle or arithmetic on the part of the trial judge, and the end sentences were not manifestly excessive. The appeal was dismissed.

Orders