Coleman v The Queen

[2005] NZCA 225

IN THE COURT OF APPEAL OF NEW ZEALAND

CA80/05

THE QUEEN

v

DEAN WILLIAM COLEMAN

Hearing:16 August 2005

Court:Anderson P, Randerson and Williams JJ

Counsel:M I Sewell for Appellant

M T Davies for Crown

Judgment:31 August 2005 

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS

(Given by Randerson J)

Introduction

[1]       On 25 February 2005 Panckhurst J sentenced the appellant to 25 months imprisonment on one count of cultivation of cannabis and one of possession of cannabis for supply.  The appellant had pleaded guilty to the first but was convicted on the second after a trial before Panckhurst J and a jury which concluded on 10 February 2005.  The appellant was found not guilty of a specific count of selling cannabis and was discharged under s 347 Crimes Act 1961 on a further count of cultivating cannabis at another address. 

[2]       The charges brought against the appellant were part of a large Christchurch police operation known as Operation Crusade but the appellant’s trial was severed from the trial of other accused. 

[3]       In this appeal, the appellant contends that his sentence was manifestly excessive on the grounds that it was based on findings of fact which were not sustainable on the evidence or were inconsistent with the jury’s verdict and on the further ground of disparity in relation to the sentencing of a Mr Nisbet on similar charges.

The sentencing notes

[4]       The facts were succinctly stated by Panckhurst J in these terms:

Your involvement came to light as a result of intercepted telephone conversations principally between Lisa Howie and a Mr Shand which commenced in late July and ran through August of 2003.  Those telephone conversations I am in no doubt established that Ms Howie was purchasing cannabis from Shand as a middle man and that he in turn was sourcing such cannabis from a number of growers of whom you were one.

A search warrant was executed at your home on 3 September 2003 when the operation terminated.  You had growing at that time some 42 semi mature plants.  The police also found the remnants of a harvest which you said in evidence you had made just a few days earlier on a Friday night when the search itself was I think the following Wednesday.  Those remnants had resulted in your obtaining a yield of just over 1 kilogram, 1,015 grams, of good quality head.  Put in another way there was 36 ounces of head which at $300 an ounce, the going rate according to the evidence, had a value of $10,800.  The other obvious and clear inference to be drawn from the evidence of the search is that you were in the practice of growing cannabis in a staggered way so that the plants came to maturity from time to time in order to secure continuity of supply.

[5]       In her submissions before the sentencing Judge, Ms Sewell on behalf of the appellant urged the Judge to view the appellant’s case as similar to that of the appellant in R v Edmonds  CA 23/02 28 May 2002.  In distinguishing that case, the Judge observed that this Court had described Mr Edmonds’ operation as “basic and relatively unsophisticated”.  The Judge took the view that this was not a description which could be applied to the appellant’s case.

[6]       In dealing with the pre-sentence report, the Judge noted that the appellant was 37 years of age and that he had kept out of trouble after making a conscious decision to shift to Christchurch from Auckland where he had gathered a number of convictions. Panckhurst J observed that the previous convictions had occurred 10 years before and that none was of direct relevance to drug dealing.  He accepted that the appellant had worked hard, gathered some assets and established a demolition contracting business.  The Judge also accepted that the appellant was not unintelligent and considered he had become involved in the cultivation of cannabis for the purposes of making money from it. 

[7]       The Judge went on to compare the appellant’s case with that of Mr Nesbit whom he described as a workmate of the appellant.  The Judge stated:

There were very obvious similarities between the growing set-ups which you and he had.  That indicated to me you had compared methods as you went along, at the very least, although I did not accept that you were necessarily thereby a party to his growing activity.  In his case a search warrant was executed on the same day and he was growing 36 mature plants, or near to mature plants, with another 36 which were about half mature, but unlike you he did not have a significant quantity of cannabis head in his possession which was ripe for on-sale to a middleman.

[8]       As to the period of time in which the appellant had been growing cannabis, the Judge acknowledged that he must accept for sentencing purposes the appellant’s evidence that he had commenced growing in January 2003, there being no hard evidence to the contrary.  However, he did not accept counsel’s submission that the harvest found upon the execution of the search warrant was the appellant’s “first ever harvest”.  The Judge reiterated that the intercepted conversations clearly conveyed to him that the appellant had an established supply relationship with      Mr Shand.

[9]       Panckhurst J then went on to consider how long that relationship had persisted and what scale of selling occurred during that period.  He concluded that the appellant had a committed relationship with Mr Shand for at least six weeks before 3 September 2003 and accepted there was no firm evidence of the amounts supplied.

[10]     The Judge concluded that the appellant fell squarely within category two of R v Terewi [1999] 3 NZLR 62. Category two would encompass small scale cultivation of cannabis plants for a commercial purpose and would attract a starting point in the range of two to four years. The Judge concluded that it was appropriate to adopt a starting point a little below the level in Mr Nisbet’s sentence because, in his case, there was evidence in the form of electricity consumption which demonstrated the duration of his cultivating activity. In the appellant’s case Panckhurst J adopted a starting point of two and a half years.

[11]     The Judge noted that, unlike Mr Nisbet, the appellant could only expect very limited credit for a plea of guilty.  He said the appellant had entered the plea very late in the day, almost 18 months after his arrest and almost 12 months after the preliminary hearing.  He added that the conviction on the cultivation charge was inevitable. 

[12]     Panckhurst J concluded that, giving the appellant less credit than he gave to Mr Nisbet, the ultimate sentence should nevertheless be the same as Mr Nisbet’s.  Accordingly, concurrent sentences of 25 months imprisonment were imposed on each count. 

The appellant’s submissions

[13]     In relation to the first ground of appeal, Ms Sewell submitted that the Judge had erred in finding that by the date of his arrest, the appellant had already been in the practice of growing cannabis in a staggered way.  She also submitted that the Judge had erred in finding that the appellant had an established supply relationship with Mr Shand for a period of six weeks prior to that date.

[14]     On the first point, we consider the facts spoke for themselves.  The appellant admitted cultivating cannabis from January 2003 and, at the time of execution of the warrant, the appellant was found to have some 42 semi-mature cannabis plants growing at his home.  Importantly however he was also found to be in possession of remnants of a prior harvest yielding over 1 kilogram of good quality cannabis head with a market value of over $10,000.  In our view, there were ample grounds for the Judge to conclude that the appellant was cultivating cannabis plants in a way which would enable him to have batches available for supply on a progressive and on-going basis. 

[15]     As to the second point about the length of the supply relationship, we have reviewed the transcripts of the intercepted conversations between the appellant and Mr Shand to which Ms Sewell drew our attention.  We are not disposed to question Panckhurst J’s assessment of the length and nature of the supply relationship he identified.  Panckhurst J had the advantage of listening to the tapes and of his knowledge of the overall cannabis dealing operation of which the appellant’s case was part.  We do not accept Ms Sewell’s submission that the Judge’s conclusion on this issue was inconsistent with the acquittal on the count alleging supply of cannabis to Mr Shand.  That allegation was in relation to a specific sale on 20 August 2003 and the acquittal is not inconsistent with the Judge’s finding. 

[16]     In any event, the particular nature and length of the relationship with         Mr Shand is not of material significance in the assessment of the sentence imposed.  By any measure, the plants being grown and the cannabis head found upon the execution of the warrant indicated a small to moderate on-going commercial operation.  The sentence must be assessed in that light.

[17]     In relation to the issue of disparity, Ms Sewell submitted that the starting point adopted in the appellant’s case was too high by comparison with Mr Nisbet where Panckhurst J adopted a starting point of three years. 

[18]     We have reviewed Panckhurst J’s sentencing notes in Mr Nisbet’s case.      Mr Nisbet had pleaded guilty to one count of cultivation of cannabis and one representative count of selling cannabis.  The guilty plea had come relatively late but the Judge accepted there were extenuating circumstances for that.  When a search warrant was executed at Mr Nisbet’s home, 72 cannabis plants in varying states of maturity were found.  The Judge observed that a calculation of power consumption over a 16 month period prior to September 2003 indicated above average power consumption which the Judge considered might well be the most reliable indicator of the level of cultivation involved.  The Judge accepted that Mr Nisbet was involved in commercial growing on a reasonable scale.  He noted that Mr Nisbet had been found in possession of $800 in cash which he admitted represented the proceeds of cannabis dealing. 

[19]     The Judge recorded that Mr Nisbet had a number of previous convictions but he disregarded them for sentencing purposes other than a conviction in 1997 for possession of cannabis which had resulted in a fine.  He noted the pre-sentence report indicated that the appellant was hard working and devoted to his family. 

[20]     The Judge concluded that although categorisation in terms of Terewi was difficult, Mr Nisbet might be at the upper end of category two or the lower end of category three.  After comparison with two others involved in the police investigation, he adopted a starting point of three years.  Allowing a credit for the plea of guilty and the positive features in the appellant’s personal background, he sentenced Mr Nisbet to 25 months imprisonment.

[21]     We cannot accept Ms Sewell’s submission that the starting point adopted in the appellant’s case was too high.  The Judge was well placed to assess the relative culpability of the appellant, Mr Nisbet and others involved in Operation Crusade.  He adopted a starting point which was six months less than the starting point in     Mr Nisbet’s case.  That recognised that Mr Coleman was not convicted on a charge of selling cannabis and also reflected the likelihood that the period of his growing operation was shorter than that of Mr Nisbet. 

[22]     We consider the starting point was entirely appropriate and that the Judge was right to categorise this case as falling within category two of Terewi.   Fine comparisons with other cases are not warranted where, as here, the starting point adopted was well within the range. 

[23]     Ms Sewell’s final point was that the credit given for the guilty plea was too little.  She submitted that most of the accused in Operation Crusade were given the opportunity to plead a week prior to their trials and received a discount of approximately 25% for guilty pleas.  Ms Sewell informed the Court that the appellant had challenged the validity of the search warrant executed at the appellant’s home and that this Court’s decision upholding the warrant was not delivered until 22 November 2004.    We note however that the appellant’s trial was scheduled for 7 February 2005 some four months before.  Yet it was not until        25 January 2005 (about two weeks before trial) that the Crown was formally notified the appellant would plead guilty to the cultivation count.  And, as the Judge observed, the conviction on the cultivation charge was inevitable.  A trial was still necessary on the remaining three counts in the indictment and we have been informed by Mr Davies for the Crown that the guilty plea did not result in any material saving in the evidence called at trial.

[24]     In these circumstances, we regard the effective discount of 17% as generous. 

Conclusion

[25]     None of the grounds of appeal is established.  The sentence of 25 months was well within range for offending of this type and could certainly not be regarded as manifestly excessive.  In these circumstances the appeal is dismissed.

Solicitors: 
Crown Law Office, Wellington