Dobson v Police
[2017] NZHC 3185
•18 December 2017
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE
CRI-2017-488-36 [2017] NZHC 3185
BETWEEN ANTHONY PAUL DOBSON
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 11 December 2017 Appearances:
R Samuel for the Appellant
J W Wall for the RespondentJudgment:
18 December 2017
JUDGMENT OF WOODHOUSE J
This judgment was delivered by me on 18 December 2017 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
Solicitors:
Mr R Samuel, Barrister, Auckland
Mr J W Wall, Marsden Woods Inskip & Smith, Office of the Crown Solicitor, Wellington
DOBSON v POLICE [2017] NZHC 3185 [18 December 2017]
[1] Mr Dobson appeals against a sentence of imprisonment for 3 years 6 months for offences of cultivating, supplying, and offering to supply, cannabis.1 Mr Dobson contends that the sentence imposed was manifestly excessive on two principal grounds, as follows:
(a) He was sentenced on the basis that he was involved in cultivation of two quite separate growing operations, but he was involved in only one. Mr Dobson contends that evidence establishes that he was only involved in cultivation of what the Judge found to be 211 smaller plants in a shade house, and that he was not involved in cultivation of
877 more mature plants growing on “the hillside”
(b)If the evidence was sufficient to establish his involvement in cultivation of the hillside plants, his involvement in this was minimal: he was a minor participant compared with others involved and, in particular, compared with his co-offender, Mr Starwood, known as Mr Crump
[2] Mr Dobson and Mr Crump were jointly charged with cultivation of cannabis. Mr Dobson had pleaded guilty to that charge subject to a disputed facts hearing. Mr Crump had pleaded not guilty. The disputed facts hearing was combined with Mr Crump’s trial, which was a Judge alone trial before Judge M J Hunt. Judge Hunt delivered a reserved judgment on the charges against Mr Crump, and on the disputed facts for sentencing of Mr Dobson.2 The evidence had been heard over four days. The prosecution evidence was heard over three days in early March 2017 and evidence from Mr Dobson, and from a witness he called, was heard approximately
11 weeks later, at the end of May 2017. I note the point because it meant Mr Dobson had a substantial amount of time to consider his response to the prosecution evidence.
[3] A summary of the Judge’s findings is conveniently taken from a summary in
the written submissions for the respondent, as follows:
1 Police v Starwood and Dobson [2017] NZDC 16791.
2 Police v Starwood and Dobson [2017] NZDC 12245.
(a) The Judge accepted that the Crown had not led evidence to suggest that Mr Dobson had been involved in the initial planting of the hillside cannabis in about November 2015. His involvement began in January 2016.
(b)Mr Dobson lacked credibility in his explanations and sought to minimise his involvement.
(c) Mr Crump, made statements which implicated the appellant in the hillside cultivation.
(d)Mr Dobson accepted ownership of a backpack and bag that contained items used in the hill-side cultivation.
(e) Mr Dobson’s response to questions asked by Constable French suggested an acknowledgement of involvement in the hill-side cultivation.
(f) Mr Dobson’s claim that he cultivated the plants in the shade house for personal use strained credulity.
(g)Mr Dobson had pleaded guilty to charges involving supply and there was surrounding evidence that the appellant had been texting others about supply during the period he was living on the property.
[4] Based on those findings, explained in reasonable detail, the Judge was satisfied, beyond reasonable doubt, that Mr Dobson had been involved in the hillside cultivation, as well as in the shade house cultivation he admitted.
[5] On sentencing, the Judge referred to his disputed facts conclusion that Mr Dobson was “fully engaged in the cultivation activity and the participant in a real and meaningful way in the operation”. This was a reference to the hillside cultivation as well as the shade house cultivation. The Judge said that the 211 plants in the shade house were “indicative” of Mr Dobson’s participation in the entire operation.
[6] Importantly, in relation to the extent of Mr Dobson’s involvement in all of the
cultivation, the Judge said:3
[9] So while I accept the evidence does not point to you as having planted the plants at first instance, the evidence was that they were likely planted late 2016. Once you arrived on the scene, my assessment is that you were an active and meaningful participant in the overall operation with a view to procuring cannabis for the purposes of supply to others, which is in fact what you did.
[7] On the question of parity, and in reference to submissions from Mr Samuel on sentencing, the Judge said:4
[14] He too seeks to distance you as a lesser participant and asks for extensive discounting based on that lesser participation. To the extent there were others involved, they are not within the scope of my decision making to determine what happens, and in this instance your sentencing proceeds on the basis of your culpability. How others might be dealt with, depending on who initiated the operation, who has planted it out, is just speculation.
…
[17] I conclude you were employed in this operation from the point at which you entered into it on a fully engaged basis, you had a degree of autonomy, you were able to use some of the product for your own purposes and did so. The pre-sentence report talks about your situation, it says you have some convictions but not a significant history. There is limited cannabis related activity and none of it justifying an uplift, none approaches the level of seriousness that this matter does.
[8] In the earlier judgment the Judge had recorded his findings, based on police evidence, that the monetary value of the entire marijuana crop was between
$382,400 and $836,700. He said that this put the value “squarely in the third category of R v Terewi5 as the 2017 inflation adjusted equivalent of $100,000 in 1999 is $147,634.36”.6
[9] The Judge fixed a starting point for Mr Dobson’s sentence at 4 years imprisonment, being the bottom of category 3 in Terewi. This was the same starting point he fixed for Mr Crump. The Judge said:7
3 R v Starwood and Dobson, above n 1.
4 R v Starwood and Dobson, above n 1.
5 R v Terewi [1999] 3 NZLR 62 (CA).
6 Police v Starwood and Dobson, above n 2, at [117].
7 R v Starwood and Dobson, above n 1, at [21].
The size of the operation, the scale of it and the fact that while you may not have been an architect but were key and integral to it, are factors that I include in that start point.
[10] The starting point was increased by four months because of the supply charges. There was no reduction for personal factors, and no issue arises in that regard. There was a reduction of just under 20 per cent for guilty pleas, and notwithstanding the fact that guilty pleas to the supply charges were entered at a late stage. This resulted in the end sentence for cultivation of imprisonment for 3 years and 6 months. There were concurrent sentences of 8 months imprisonment for the supply offences.
Did the evidence establish involvement in the hillside cultivation?
[11] Mr Samuel, in his oral submissions for Mr Dobson, identified six main points in support of the argument that the Judge was wrong to find that Mr Dobson was involved in the hillside cultivation. I note these in the following paragraphs, with my response.
[12] The first point was that the plants in the shade house were much younger than the plants on the hillside; those in the shade house ranged from four to 12 weeks, whereas those on the hillside were all at least two-and-a-half months old. This does not demonstrate in any way that Mr Dobson was not involved in the hillside operation. What it does illustrate is the unpersuasive nature of Mr Dobson’s arguments, including the contentions he advanced in evidence. As earlier noted, Mr Dobson had not got to the property until late January, and the hillside was probably planted in around November of the preceding year. Mr Dobson admitted planting in the shade house when he got to the property and said that that is all he did. He contended that, for these reasons, the Judge should have accepted that he could not have been involved in the hillside. That sort of reasoning by Mr Dobson, which ignored other evidence, understandably was rejected by the Judge.
[13] Mr Samuel’s second point was related to the first. This is that the Judge was wrong in his conclusion that the “activities in the shade house were complementary and supplementary to the hillside”. Even if the Judge was wrong in that conclusion, it does not bear in any material way on the validity of his findings on particular
matters of fact, and credibility, to lead to his conclusion that Mr Dobson was involved in both cultivations. In any event, the evidence supports the Judge’s general observation.
[14] The third point was directed to the fact that part of a water irrigation system – emitters – were found in Mr Dobson’s backpack. Mr Samuel submitted that this did not link Mr Dobson to the hillside cultivation; the Judge should have accepted that the emitters were for the shade house. Mr Dobson’s statement to Constable French justified the inference that, when Mr Dobson acknowledged that he had “been changing up the system”, he was referring to the hillside system.
[15] The fourth point related to rags found in a bag in Mr Dobson’s room. The plants on the hillside were tied to stakes with rags. Mr Samuel submitted that there was no forensic link between the rags on the hillside and those found in Mr Dobson’s room. The Judge’s discussion of the rags was as follows:8
[100] In the course of the examination of the house, a bag of rags was located. Mr Dobson was asked about that, as the same rag was located securing plants in the large block. The rag is distinctive. It was located in the house, albeit not directly in Mr Dobson’s room and on the hill block used to secure a plant. Mr Dobson’s response when asked about that by Constable French was:
“Tell me a bit about the rags found in the bag in your room. Are they the same ones used to tie up mature cannabis plants in plots found on the hillside? Interrupting me he answered: “Yeah, they’re mine. I’m sorry. I use those rags to tie up fruits, flowers, all those plants, they’re all mine”.
[101] Mr Dobson in evidence explained that he was referring only to the shade house, but could not point out where within the shade house, there was any sign of rags being used. I reject his explanation. It was contrived. The answer given in response to Constable French makes plain that the rags were used in the hill block in the very way that Mr Dobson said he used them. That is because Mr Dobson was one of the people tending the hill block.
[16] I agree with the Judge’s conclusion on this evidence.
[17] A fifth point related to another statement by Mr Dobson to Constable French about the height of plants. As with the rags, this on the face of it was an express
admission by Mr Dobson of involvement in cultivation of the hillside plants. The evidence from Constable French was as follows:9
A. … he made the comment, “Those are the plants yet, the best plants I’ve ever grown. We just (inaudible 10:21:44) the biggest drug addict ever. Those plants are good age,” looks above his head indicating the height of the plants and the taller, to be taller than he as I understand it which is my notes indicating his actions.
[18] Mr Dobson’s contention was that this was a reference to a small plant taken from the shade house, but sitting on a bench so that it would be above Mr Dobson’s head. That is a completely implausible explanation, long after the event, to seek to explain away an admission.
[19] A final point related to the fact that police found a chemical known as pindone on the hillside, but there was none in the shade house, and Mr Dobson said that the cultivation in the shade house was all organic. These points do not remotely suggest that Mr Dobson was not involved in both cultivations.
[20] There was no error by the Judge in his conclusion that Mr Dobson was involved in the cultivation on the hillside as well as the cultivation in the shade house. In consequence, Mr Dobson was properly sentenced on the basis that he was involved in cultivating all of the plants.
The sentencing starting point and parity
[21] Mr Samuel submitted that, if the Judge’s findings of fact were upheld, Mr Dobson’s involvement in the hillside cultivation was nevertheless minor and his sentence should have been “far lower” than those involved in the hillside cultivation. Mr Samuel submitted that Mr Dobson’s “sentence”, which I will treat as a reference to the starting point, should have been 50 per cent of that for “the primary party”, although it was not clear whether Mr Samuel was referring to Mr Crump as the primary party, or to others who may have been involved in setting up and planting the main cultivation on the hillside. It appears that Mr Crump had provided access to the property for others to plant the hillside and had provided the watering system
[22] For the reasons that follow, I am satisfied that there was no error by the Judge warranting a reduction of the starting point, or otherwise warranting a reduction of the end sentence.
[23] Mr Dobson was sentenced immediately following Mr Crump’s sentencing. Judge Hunt, in sentencing Mr Dobson, directed himself to the principle of parity, contained in s 8(e) of the Sentencing Act 2002, and to Mr Samuel’s submissions in that regard. The Judge made the following observations:
[6] So you were in the business of supplying others in Auckland with drugs from this property and those pleas of guilty to the charges of supply are a material part of my assessment of your culpability in this offending.
[7] My conclusions from the disputed facts hearing were that your messages and your responses on that day and those observations that were made about the block were all consistent with your involvement in the whole block and the overall operation.
[8] You also took responsibility personally for developing a nursery area and said as much and you made a rather clumsy attempt to destroy that when it became apparent that the operation had detected cannabis in and around the property. Those 211 plants in my assessment were indicative of your intention to be fully engaged in the cultivation activity and a participant in a real and meaningful way in the operation.
…
[14] [Mr Samuel] too seeks to distance you as a lesser participant and asks for extensive discounting based on that lesser participation. To the extent there were others involved, they are not within the scope of my decision making to determine what happens, and in this instance your sentencing proceeds on the basis of your culpability. How others might be dealt with, depending on who initiated the operation, who has planted it out, is just speculation.
…
[17] I conclude you were employed in this operation from the point at which you entered into it on a fully engaged basis, you had a degree of autonomy, you were able to use some of the product for your own purposes and did so. The pre-sentence report talks about your situation, it says you have some convictions but not a significant history. There is limited cannabis related activity and none of it justifying an uplift, none approaches the level of seriousness that this matter does.
…
[21] The size of the operation, the scale of it and the fact that while you may not have been an architect but were key and integral to it, are factors that I include in that start point. …
[24] The Judge’s summary of the extent of Mr Dobson’s involvement was justified in light of his findings of fact from the disputed facts hearing and the relevant findings for the conviction of Mr Crump. A starting point of 4 years for Mr Dobson was not close to being manifestly excessive. It is well within range having regard to the guidelines in Terewi and other leading cases. Mr Dobson was actively engaged in cultivation of a substantial quantity of cannabis for commercial purposes. The evidence justified a conclusion that he was actively engaged in commercial dealings in cannabis from the hillside cultivation. And his own evidence made clear that he was solely responsible for the cultivation of 211 plants in the shade house. The product from some of those plants may have been for Mr Dobson’s personal use, but I am satisfied that this part of the cultivation, with Mr Dobson solely responsible, was also for commercial dealing.
[25] On the question of parity, and leaving aside for the moment the starting point for Mr Crump, the fact that others may have been involved in a substantial way in the planting of the hillside, or in other ways, does not provide grounds to reduce Mr Dobson’s starting point assessed in relation to the extent of his involvement. I agree with the Judge’s observation at [14] of his sentencing notes, quoted above. Mr Samuel submitted that Mr Dobson’s culpability should have been assessed as less than that of others because Mr Dobson was not involved in the main harvesting of the plants on the hillside. It is factually correct that Mr Dobson was not involved in the main harvesting, but the fact does not assist Mr Dobson. This is for the simple reason that the main harvesting was not going to occur until sometime after Mr Dobson was arrested in March.
[26] I am also not persuaded that the starting point for Mr Dobson’s sentence should have been less than that for Mr Crump. The nature of Mr Crump’s involvement was different from that of Mr Dobson, but there is no justification for assessing the nature of Mr Dobson’s involvement as being in some way materially less, in terms of substantial involvement in the overall operation, than that of Mr Crump.
[27] The challenge to the starting point of 4 years is dismissed.
[28] The only other submission directed to the sentence was that there should have been the maximum credit of 25 per cent for the guilty pleas. I do not agree. The guilty plea to the cultivation charge was entered at a reasonably early stage, but guilty pleas to the two supply charges were entered only on the first day of the intended trial.
Result
[29] The appeal against sentence is dismissed.
Woodhouse J
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