Dawson v Police

[2016] NZHC 3047

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-412-000021 [2016] NZHC 3047

BETWEEN

BARRY STEPHEN DAWSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	12 December 2016
Appearances:	Appellant Appears In Person CER Power for Respondent
Judgment:	14 December 2016

JUDGMENT OF GENDALL J

Introduction

[1]      On 22 July 2016, Mr Barry Dawson, the appellant, pleaded guilty in the Dunedin District Court to one charge of cultivating cannabis.  On the same day, he was sentenced by Judge Phillips to 200 hours’ community work.  Mr Dawson now appeals  against  his  conviction,  alleging  a  miscarriage  of  justice.    In  essence, Mr Dawson contends that because the cannabis he was cultivating and possessed did not contain Tetrahydrocannabinol (THC), his instructed counsel was wrong in advising him that he plead guilty to the offence.

[2]      However,  at  the  outset  I  need  to  say  that,  the  advice  provided  by Mr Dawson’s  counsel,  Mr  Andrew  More,  in  my  view,  was  entirely  correct. Irrespective of whether THC was present or not, cultivation or possession of any type of cannabis is illegal and contrary to the Misuse of Drugs Act 1975.

[3]      As this appeal concerned advice given by Mr More, the appellant’s initial

legal counsel, Mr Dawson waived his legal privilege in order for the appeal to

DAWSON v NEW ZEALAND POLICE [2016] NZHC 3047 [14 December 2016]

proceed on 29 November 2016.  Mr More then filed a detailed explanatory affidavit dated 7 December 2016.   The content of this affidavit deposed by Mr More was therefore considered for this appeal.

Background

[4]      On Friday 3 June 2016, a search warrant under the provisions of the Misuse of Drugs Act 1975 was executed on the appellant’s premises.  Mr Dawson led the police into his bedroom and directed them to the wardrobe.   Inside, police located two healthy cannabis plants approximately 1.35 metres high and a third plant that was approximately 75cm high.  Five further plants and 15 seedlings were located in the wardrobe of a spare room.  Mr Dawson later made a full statement to the police.

[5]      Mr Dawson first spoke to his counsel, Mr More, on 6 July 2016. Mr Dawson instructed him that he wished to plead not guilty on the basis that the cannabis “wasn’t pot” and that it was a “particular strain of cannabis” that “contained no THC”.  He also wished to challenge the police search warrant.

[6]      Mr More then applied for disclosure of the appendix on which the warrant application relied.  This was received in redacted form.  The appendix made it clear that  the  police  had  relied  on  human  source  information  and  that  source  was consistent  with  what  police  had  located.    There  was  accordingly  no  basis  to challenge the warrant.

[7]      Mr More says in his affidavit he then diligently researched the issue that Mr Dawson raised with respect to his claim that the cannabis did not contain THC.  This indicated that cannabis plant was defined within Part 1 of Schedule 3 of the Misuse of Drugs Act 1975, which states:

Cannabis Plant [(whether fresh, dried, or otherwise)]- that is, any part of any plant of the genus cannabis except a part from which all the resin had been extracted.

[8]      On the basis of that definition, Mr More rightly, in my view, concluded that Mr Dawson’s claim of having grown a particular strain without THC did not provide him with a legal defence.

[9]      On 21 July 2016, Mr More explained to Mr Dawson that he had no tenable defence to the charge.  Mr More deposes that he was also concerned at Mr Dawson’s statement to the police which contained full admissions and, in particular, the acknowledgment that he planned to use the cannabis to smoke for his own use, and the use of a terminally ill friend who was dying of cancer.  On the basis of all that advice, Mr Dawson instructed Mr More that he would plead guilty, which he did.

Jurisdiction

[10]     As sentence has already been passed by Judge Phillips here, the appellant is unable to apply for his plea to be vacated under s 115 of the Criminal Procedure Act

2011 (CPA).  The present appeal therefore proceeds as a general appeal under s 229 of CPA, which states:

229 Rights of appeal against conviction

(1) A person convicted of an offence may appeal under this subpart to the first appeal court against the conviction.

[11]     Section 232 CPA provides that an appeal may only be allowed if there is a miscarriage of justice.   “Miscarriage of justice” is defined to mean any error, irregularity or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.

[12]     The appellant’s appeal here seems to rest upon s 232(2)(c) CPA and a claim that a miscarriage of justice has occurred because of erroneous legal advice.   The definition of “miscarriage of justice” under s 232 does not seem to directly address circumstances where, as here, there has been a guilty plea.  It is difficult to see how there could be an error, or irregularity in a trial when there was technically no trial to speak of.  Section 115 of the CPA however does concern the withdrawal of a guilty plea by leave of the court at any time before sentencing.  This section however only applies “before the defendant has been sentenced or otherwise dealt with”.   The commentary on the exercise of the Court’s discretion to grant leave, however, is helpful in assessing whether there may have been a miscarriage of justice.

Analysis

[13]     Under s 115 CPA, when considering whether the Court should grant leave for the defendant to withdraw a guilty plea, the CPA does not list the circumstances in which an application to vacate guilty pleas will be granted, or provide a test to guide the court’s decision-making.1    Prior to sentencing, the decision to vacate is a discretionary one.  The court should only grant leave if it is in the interests of justice to do so.2   This test incorporates the interests of both the accused and the victim.3 In Abraham v District Court at Auckland, the Court of Appeal described this discretion as “a broad one”, to be exercised to prevent a miscarriage of justice.4    The onus of establishing the interests of justice rests on a defendant as applicant.  Mere repenting on a guilty plea, however, without more, is insufficient.5

[14]     Adams on Criminal Law summarises the circumstances in which the court may allow the withdrawal of a guilty plea as follows:6

(a)      If the defendant did not appreciate the nature of the charge, or did not intend  to  admit  his  or  her  guilt,  or  if  on  the  admitted  facts  the defendant could not have been guilty of the offence charged.7

(b)If the defendant’s ability to determine whether or not to plead guilty was affected by a permanent impairment, lack of capacity, ill-health or other circumstances.8

(c)      If there is a possible defence to the charge of which the defendant was unaware  when   he  or   she  pleaded   guilty,   whether  because  of

incompetent legal advice or otherwise.9

1      There is, however, specific guidance for situations where the defendant pleaded guilty on the basis of a sentence indication or where the sentence has been increased following an appeal: Criminal Procedure Act 2011, ss 116 and 252.

2      Marino v Police HC Napier CRI-2007-441-27, 14 May 2008 at [10]; R v Clark CA59/02, 28

May 2002; R v Kihi CA395/03, 19 April 2004 at [14]; R v Le Page [2005] 2 NZLR 845 (CA);

3      R v Clark CA59/02, 28 May 2002.

4      Abraham v District Court at Auckland [2007] NZCA 598, [2008] 2 NZLR 352 at [38].

5      Sharp v District Court at Whangarei [1999] NZAR 221 (HC) at 225.

6      Simon  France  (ed)  Adams  on  Criminal  Law  (online  looseleaf  ed,  Thomson  Reuters)  at

[CPA115.02].

7      Udy v Police [1964] NZLR 235 (SC); R v Taylor [1967] NZLR 577 (SC).

8      Gardiner v Levin District Court HC Palmerston North CIV-2006-454-630, 24 November 2006;

Leeder v Christchurch District Court [2005] NZAR 18 (HC).

(d)If there is some impropriety in the conduct of the proceedings or of the prosecution.10

[15]     The Court of Appeal has held that leave will seldom be given where the defendant has had competent and correct legal advice before the plea,11 or, except in “very rare circumstances”, if the court is satisfied that the plea was made freely and on an informed basis.12    In R v Merrilees, the Court of Appeal acknowledged the reasons why an offender may reluctantly plead guilty, observing that:13

Later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned. If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.

[16]     Having considered the relevant authorities, I am not satisfied in this case that there was any miscarriage of justice that warrants the appellant’s conviction appeal being allowed.  There is no doubt, in my view, that Mr Dawson is mistaken in his belief that it is legal to possess cannabis material as defined in s 9 of the Misuse of Drugs  Act  1975  that  may  not  contain  THC.    There  is  also  no  doubt  that  the appellant’s initial legal advice provided by Mr Moore was proper and correct.  The Misuse of Drugs Act 1975 is clear in its definition of cannabis to be any part of “any plant of the genus cannabis”.  Furthermore, Mr Dawson made a full and unequivocal confession to the police  at the time as to his  cultivation and  possession of the cannabis plant.   It was he who co-operated with the police and led them to the cannabis plants.   His co-operation and early guilty plea it seems was a probable reason why Judge Phillips imposed what I see as a relatively lenient sentence here of

200 hours community service.

9      R v Le Comte [1952] NZLR 564 (SC); R v Merrilees [2009] NZCA 59; Watts v R [2011] NZCA

41; Sharp v District Court at Whangarei [1999] NZAR 221 (HC).

10     R v Nevin 2006 NSCA 72, (2006) 245 NSR (2d) 52; R v Djekic (2000) 147 CCC (3d) 572 (ONCA).

11     R v Stretch [1982] 1 NZLR 225 (CA).

12     R v Merrilees [2009] NZCA 59 at [35].

13 At [35].

[17]     Having reached the conclusion that the appellant had no arguable defence here,  I  find  that  no  miscarriage  of  justice  has  occurred.    The  appeal  against conviction is dismissed.

Whether the sentence was manifestly excessive?

[18]     I  heard  no  argument  or  submissions  on  this  appeal  as  to  the  sentence imposed.  But, in case the appellant might also be appealing sentence here (as his Notice of Appeal appeared to indicate), I find that 200 hours’ community work was well within the available sentences at the Judge’s discretion.   Indeed, considering this is what I understand to be the appellant’s fifth conviction for possession of a Class C drug and his tenth conviction on a drug related offence, the 200 hours’ community work imposed by Judge Phillips, in my judgment, was lenient.

Result

[19]     The appeal against conviction and sentence is dismissed.

...................................................

Gendall J

Solicitors:

RBP Law, Dunedin

Copy to Appellant