Gillan v The Queen
[2021] NZHC 2799
•20 October 2021
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2021-412-000035
[2021] NZHC 2799
BETWEEN SIMON GILLAN
Appellant
AND
THE QUEEN
Defendant
Hearing: 18 October 2021 Appearances:
S A Saunderson-Warner for Appellant C J Bernhardt for Respondent
Judgment:
20 October 2021
JUDGMENT OF GENDALL J
This judgment was delivered by me on 20 October 2021 at 12 p.m. pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
GILLAN v R [2021] NZHC 2799 [20 October 2021]
Introduction
[1] The appellant, Mr Gillan, was charged with cultivating cannabis,1 selling cannabis (x4),2 offering to sell cannabis (x2)3 and unlawful possession of a firearm.4 He appeared before Judge Emma Smith in the District Court at Dunedin on 15 June 2021 for sentencing. The Judge sentenced Mr Gillan to 26 months’ imprisonment.5
[2] Mr Gillan now appeals that decision on the basis that the sentence imposed was manifestly excessive due to the starting point being too high.
Facts
[3] In May 2020 police became aware that Mr Gillan was selling cannabis and began an investigation. The investigation found that between 27 April 2020 and 11 May 2020 Mr Gillan had sold $1,100 worth of cannabis and offered to sell approximately $200 worth of cannabis. Mr Gillan sold cannabis to two people on four occasions.
[4] On 7 September 2020 police officers executed a search warrant at Mr Gillan’s address and located two back rooms of the garage that had been converted specifically for the purpose of cultivating cannabis. The rooms had been lined with polythene material and contained inverters, heat lamps, a hydration system, timers, fans and CCTV monitoring. A number of fertilisers and assorted cannabis utensils and digital scales were located throughout the house.
[5] Cannabis plants were located at various stages of development. Sixteen were mature plants, four were immature and 27 clones were located in two propagation boxes. The mature and immature plants were growing under a heat lamp and appeared to be healthy. The summary of facts states that “for the purposes of sentencing” the cultivation involved 34 plants. The immediate yield from the two mature plants was
1 Misuse of Drugs Act 1975, s 9(1). Maximum penalty of seven years’ imprisonment
2 Section 6(1)(e). Maximum penalty of eight years’ imprisonment.
3 Section 6(1)(e). Maximum penalty of eight years’ imprisonment.
4 Arms Act 1983, s 45. Maximum penalty of four years’ imprisonment.
5 R v Gillan [2021] NZDC 11755.
estimated to be three ounces per plant, equating to $2,700 and the projected yield from the 34 plants was estimated to be three ounces per plant, equating to $45,900.
[6] Also located in the house was a sawn off .22 firearm. This was found wrapped in a black reusable shopping bag in a wooden chest in Mr Gillan’s bedroom. The firearm was loaded with one .22 round.
District Court decision
[7] The District Court Judge first outlined the facts of the offending and Mr Gillan’s explanations as to this offending. Mr Gillan had claimed the majority of the cannabis was for his own use and that he had only decided to offer and sell cannabis “on a relatively small scale” due to financial hardship caused by COVID-19. He explained that after selling some cannabis, he was visited by gang members. Following this visit Mr Gillan says he procured the firearm from an unnamed associate.
[8] The Judge then traversed Mr Gillan’s previous convictions. Some are for cannabis possession, albeit in 2010. She considered that from 2010 onwards Mr Gillan’s offending has not been significant.
[9] In determining the starting point, the Judge identified the cannabis-related offending as the lead offending. She acknowledged R v Terewi as the tariff case for cannabis cultivation. With reference to this case, the Judge considered that a starting point of 26 months’ imprisonment was appropriate for the cannabis related offending.6 The Judge considered this was an appropriate starting point given the number of plants, the extensive nature of the operation, the material found, the estimated yield and the fact it had the primary purpose of satisfying Mr Gillan’s own addiction. She noted that “it was a significant operation with high elements of cultivation and care about it”. The Judge accepted that, although this was a sophisticated cultivation operation, the commercial element was relatively small and limited to a defined time period in circumstances contingent on COVID-19. However, a 26-month starting
6 R v Terewi [1999] 3 NZLR 62, (1999) 16 CRNZ 429.
point was considered appropriate primarily because it involved sophisticated cultivation with some commercial element.
[10] After considering the cases provided by counsel as to firearms offending and the totality of the prison sentence, the Judge applied an uplift of 14 months’ imprisonment for the firearms charge. This resulted in an updated starting point of 40 months’ imprisonment.
[11] The Judge found there were no aggravating factors personal to Mr Gillan. However, she considered that a 10 per cent discount was appropriate for Mr Gillan’s rehabilitation efforts and his addiction. The Judge qualified this finding by explaining that she did not think Mr Gillan’s degree of addiction overbore rational decision- making in terms of his culpability to the extent of the cultivation and the sale. The Judge also considered a 25 per cent discount for an early guilty plea was appropriate.
[12] With the adjusted starting point of 40 months’ imprisonment and a discount of 35 per cent, the Judge reached an end sentence of 26 months’ imprisonment.
Principles on appeal
[13] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.8 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.9
7 Criminal Procedure Act 2011, ss 250(2) and 250(3).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Ripia v R [2011] NZCA 101 at [15].
Submissions
Appellant’s submissions
[14] Ms Saunderson-Warner, for Mr Gillan, as I have noted, submitted that the sentence imposed was manifestly excessive due to the starting point being too high.
[15] In relation to the cannabis offending, Ms Saunderson-Warner, while acknowledging that this Court is bound by Terewi, argued generally that this guideline case is outdated.10
[16] Secondly, she suggested that the Judge erred by effectively placing the offending within category two, as set out in Terewi. Ms Saunderson-Warner contended that category one was more appropriate here, given the fact the sales occurred on very few occasions and for what she said were small amounts of money, indicating there was limited commercial element to the cultivation offending. In support of this submission Ms Saunderson-Warner referred to the following passage of Terewi:11
Category 2 encompasses small-scale cultivation of cannabis plants for a commercial purpose, i.e. with the object of deriving profit. The starting point for sentencing is generally between 2 and 4 years but where sales are infrequent and of very limited extent a lower starting point may be justified.
[17] Ms Saunderson-Warner submitted the crucial words here are “the object of deriving profit”. She maintained in the present case that profit was not the objective for Mr Gillan, who was growing cannabis plants for his own use to meet his long- standing addiction. Evidence was produced to support this addiction. Ms Saunderson- Warner contended too that the sales occurred over a limited period of around two weeks from 27 April to 11 May 2020. The sales, she said, were only to two customers, with total sales being worth $1,100. Ms Saunderson-Warner highlights the fact that the police did not execute the search warrant at Mr Gillan’s address until September 2020. She suggested this demonstrates that Mr Gillan did not cease selling cannabis due to apprehension by police, but rather he limited the sales to a time period during which he was financially affected by the COVID-19 lockdown and was behind on rent.
10 Citing Terewi, above n 6.
11 At [4] (emphasis added).
[18] Ms Saunderson-Warner also maintained that the Judge erred in placing weight on the sophistication of the cultivation or its estimated yield. She said that although the cultivation set-up did have a degree of sophistication and the potential yield was high, this does not increase the gravity of offending when the cannabis was being grown for the cultivator’s own addiction rather than to increase their profits.
[19] Ms Saunderson-Warner referenced several authorities, which she said supported a considerably lower starting point here:
(a)Devereux v Police was a case in which Justice Mander considered two appeals.12 The first set of facts concerned Mr Devereux. He had been found growing six cannabis plants, which were reaching maturity, and there were also three trays of soil with cannabis seeds planted in them. Various filters and pieces of equipment were being used to try to avoid detection. Mr Devereux admitted selling typically one $50 bag per week, though at times had sold as many as ten $50 bags in a week. On appeal, Mander J reduced the starting point to 15 months’ imprisonment and the end sentence was reduced to eight months’ home detention. Ms Saunderson-Warner submitted that although the number of plants was considerably less in this case, there was a greater degree of commerciality given the regular sales, at times worth up to $500 in a week. She submitted the offending is approximately comparable. The second appeal dealt with Mr Drake, who had been found in possession of 110 g of cannabis in small bags, as well as a set of scales and over
$3,000 in cash. A starting point of 18 months’ imprisonment was adopted by Mander J. Ms Saunderson-Warner suggested this fact scenario again involved a more commercial operation than the present case. Within the Devereux decision Justice Mander reviewed a number of relevant authorities:
(i)R v Edmonds: the defendant was found in possession of 65 cannabis plants, eight mother plants and 42 seedlings. 13 They
12 Devereux v Police [2017] NZHC 167
13 R v Edmonds CA23/02, 28 May 2002.
were in black plastic planting bags and grown indoors under controlled lighting. Fertilizer, extractor fans and other items relating to cultivation were found. The Court of Appeal found the cultivation was relatively unsophisticated and reduced the starting pointy to two years’ imprisonment. Here, Counsel submits the degree of sophistication is similar to that in Edmonds but involved less plants.
(ii)Mowbery v R: the appellant was found in possession of 57 cannabis plants, electronic timers, a dehumidifier and heat pumps. Gendall J considered the operation was basic and the degree of commerciality was minor. 14 A starting point of 18 months’ imprisonment was adopted on appeal, and the end sentence was one of six months’ home detention.
(iii)Needham v Police: the appellant possessed 10 potted cannabis plants growing under heat lamps, as well as 236 g of dried cannabis, four large mature plants drying in a hot water cupboard, 631 g of frozen cannabis stalk and 47 g of dried cannabis in the car. 15 A starting point of six month’s imprisonment was upheld on appeal.
(iv)R v McDonald: 48 small cannabis plants were found in an elaborate shed set up, as well as 41 g of cannabis. A two-year starting point was adopted.16
(v)R v Rauhihi: 72 cannabis plants were found as well as 326 g of wet and dried cannabis. 17 After an extensive review of relevant decisions, a starting point of 15 months’ imprisonment was adopted
14 Mowberry v R [2012] NZHC 969.
15 Needham v Police [2013] NZHC 688.
16 R v McDonald HC Whangarei CRI-2011-088-3522, 5 September 2011.
17 R v Rauhihi HC Palmerston North CRI-2008-031-1438, 1 May 2009.
[20] With reference to these cases, Ms Saunderson-Warner maintained that the starting point should have been no more than 18 months’ imprisonment for the cannabis offending.
Respondent’s submissions
[21] In response, Mr Bernhardt, for the Crown, submits any challenge to the Court of Appeal decision of Terewi cannot be advanced as a ground of appeal in this Court because it is bound to follow that ruling.
[22] On the issue of which category of Terewi was appropriate in this case, Mr Bernhardt submitted that the District Court Judge was correct in finding the offending effectively fell within category two. In support of this he submitted there were multiple factors that suggested the cannabis cultivation had a commercial element to it. First, in Mr Gillan’s alcohol and drug report it was noted that at the time of his arrest he was using methamphetamine “twice a week” and had previously used it once a day. Mr Bernhardt suggested this reliance on methamphetamine, coupled with Mr Gillan’s lack of legitimate income to support it, suggested the cannabis cultivation was for commercial profit. Secondly, he noted that a sophisticated set up, as was the case here, is strongly suggestive of cultivation for commercial use. Thirdly, Mr Bernhardt argued that evidence of only minimal sales should not be used as evidence to show the cultivation was not commercial. Lastly, he maintained that the associated charge of possession of a firearm allows the Court to infer that Mr Gillan had concerns for his safety due to his commercial cannabis operation.
[23] Mr Bernhardt referenced the Court of Appeal decision of R v Andrews and Devitt which, although primarily concerned with the issue of suspended sentences, made comments that “ [a] case involving any commercial element must be regarded as falling into category 2” and “[i]f the commercial element is very small that factor can properly be reflected in a reduction of the normal starting point for a category two case”.18 Mr Bernhardt submitted that the starting point adopted by the Judge at the lower end of Terewi category two, being 26 months’ imprisonment, although perhaps
18 R v Andrews and Devitt [2000] 2 NZLR 205 (CA) at [9] (emphasis added).
in one sense on the high side, did accord with these comments and was in no way “unremarkable” or in error.
[24] As to the firearms offending, Mr Bernhardt submitted that an uplift of 18 months’ imprisonment for the firearms charge could have been justifiably adopted. On this basis he suggested that even if this Court were to find the starting point for the cannabis related charges was too high, the District Court Judges’ leniency with the uplift for the firearms charge meant the starting point was not manifestly excessive.
[25] Mr Bernhardt went on to argue that if this is not accepted and the Court finds that a sentence of two years’ imprisonment or less was appropriate, leave to apply for home detention should not be granted on the basis of principles of denunciation and deterrence. In the event home detention was to be considered, he also submitted the matter, in any event, should be remitted back to the District Court with an updated report so that the District Court Judge has all of the information needed to consider that sentence of home detention.
Analysis
[26] The guidelines for cannabis cultivation offending are set out in the Court of Appeal decision of Terewi, by which this Court is bound.19 Submissions advanced before me challenging at this point the applicability of this decision are without merit as this Court has no jurisdiction to overturn or revise Court of Appeal decisions. That said, I turn now to the categories in Terewi which are defined as follows:20
Category 1 consists of the growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence. Where there have been supplies to others on a non-commercial basis the monetary penalty will be greater and in more serious cases or for persistent offending a term of periodic detention or even a short prison term may be merited. (It is to be noted in this connection that there is no separate offence in relation to a class C drug of supplying or possession for supply, as opposed to selling or offering for sale or possession for sale (s 6(1)(e) and (f)).
Category 2 encompasses small-scale cultivation of cannabis plants for a commercial purpose, i.e. with the object of deriving profit. The starting point
19 R v Terewi, above n 6.
20 At [4].
for sentencing is generally between two and four years but where sales are infrequent and of very limited extent a lower starting point may be justified.
Category 3 is the most serious class of such offending. It involves large-scale commercial growing, usually with a considerable degree of sophistication and organisation. The starting point will generally be four years or more.
[27] As expressed by the Court of Appeal in R v Edmonds these categories are for guidance and do not fix the starting point.21 The Court of Appeal also recognised that, in category two of the Terewi bands, it is expressly stated that not all cannabis cultivation offending with a commercial element must have a starting point of two years’ imprisonment or above. There is an express reservation that, where sales are infrequent and of a very limited extent, a lower starting point may be justified.
[28] The issue in the present case as to which category Mr Gillan’s cannabis cultivation offending falls into must turn on its own facts. I agree with Judge Smith that, overall, the lower end of Terewi category two is appropriate here.
[29] As the Judge acknowledged, Mr Gillan had a very sophisticated setup in relation to his cannabis cultivation, there were four sales made to two different people totalling $1,100 and he had made other offers to sell cannabis product. The cannabis operation was conducted in two carefully adapted grow rooms which included, significantly, sophisticated hydration systems and CCTV monitoring. These ongoing arrangements which involved cultivation of significant quantities of cannabis, in my view, take the apparent commerciality of these circumstances to another level. As I see it, there is no question that Mr Gillan was involved in dealing in cannabis it seems at least in part to fund a methamphetamine habit.
[30] And, after reviewing the authorities helpfully provided by counsel, I consider the starting point of 26 months’ imprisonment for Mr Gillan’s cannabis related charges when dealt with concurrently, although perhaps at the higher end, could not be said to be manifestly excessive. Here, there was direct evidence before the Court of sophisticated drug dealing and the 26 months starting point, it is accepted, was at the lower end of Terewi category two.
21 R v Edmonds CA23/02, 28 May 2002. This judgment was released after R v Andrews and Devitt, above n 18. This case was raised by Mr Bernhardt as a decision that suggested all commercial cannabis cultivation belonged in category two.
[31] The issue of the firearm charge too, was addressed in some detail by Mr Bernhardt. He suggested that an uplift of 18 months’ imprisonment to the starting point would have been available on this charge, as compared to the 14-month uplift that was considered appropriate by Judge Smith. To some extent I agree, acknowledging the seriousness of this charge as the modified sawn-off firearm was found loaded and in a place that would have been easily accessible to Mr Gillan. However, I note that the Judge, in applying the uplift on the firearm charge, did so at this 14-month level “having regard to the totality of the prison sentence”.22 Notwithstanding my view regarding the appropriateness of an 18-month starting point here, I confirm the actual uplift imposed of 14 months’ imprisonment was entirely unobjectionable.
[32] I am mindful, too, that it must be the ultimate sentence which is to be assessed on any appeal. In reviewing the authorities and taking into account the importance of consistency in sentencing and considering too the totality of Mr Gillan’s offending in this case, I consider the overall combined starting point of 40 months reached by Judge Smith was quite appropriate.
[33] Before me, no issue was taken with the Judge’s assessment of the matters personal to Mr Gillan. I consider the percentages applied of a full 25 per cent for Mr Gillan’s guilty plea and 10 per cent for his rehabilitation efforts and addiction issues were also appropriate.
[34] Therefore, with the starting point applied by Judge Smith of 40 months’ imprisonment and the discounts of 35 per cent, the end sentence she imposed of 26 months’ imprisonment was unobjectionable here.
[35] For all these reasons I find no error has occurred in the imposition by the District Court of Mr Gillan’s sentence of 26 months’ imprisonment. That sentence is not manifestly excessive and is within an appropriate range in all the circumstances of Mr Gillan’s offending here.
22 R v Gillan, above n 5 at [26].
Conclusion
[36] This appeal is therefore dismissed. And for completeness, I note also that the destruction orders made in the District Court are to remain.
...................................................
Gendall J
Solicitors:
Sarah Saunderson-Warner, Barrister, Dunedin RPB Law, Dunedin
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