Graham v Police

[2018] NZHC 3454

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000092

[2018] NZHC 3454

BETWEEN

DEAN ALAN LINDSAY GRAHAM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	6 December 2018
Appearances:	J M H Eaton QC for the Appellant S Dayal for the Respondent
Judgment:	21 December 2018

JUDGMENT OF NATION J

[1]    Dean Graham appeals against a sentence of 80 hours’ community work imposed after he pleaded guilty to a charge of allowing his premises to be used for the purpose of cannabis cultivation. The actual cultivation was a sophisticated cannabis grow. Mr Graham was sentenced on the basis he had known only six plants were being grown by someone else. He argues the sentence was manifestly excessive because he should have been fined.

The summary of facts

[2]    Mr Graham was the primary occupant of a 2.5 acre property in rural Canterbury, with a dwelling house and outlying sheds and garages. Also situated at the address was a 40 foot truck semi-trailer and a 20 foot shipping container.

[3]    On 25 January 2017, the Police executed a search warrant at the address. Mr Graham was at the address. He was found to be in a possession of a cannabis pipe.

GRAHAM v POLICE [2018] NZHC 3454 [21 December 2018]

[4]    In the truck semi-trailer was a sophisticated cannabis grow. The inside of the trailer had been modified to accommodate three grow rooms. The rooms were lined with insulation and were fully powered.

[5]    There were numerous transformers, ducting, lighting rigs, fans, timers, nutrient concentrates and fertilisers set up to maximise growth. Within the rooms were 109 cannabis seedlings and 29 large mature cannabis plants growing in hydroponic tanks.

[6]    In the adjacent shipping container were four dead cannabis plants and an old lighting setup.

[7]    An operation of the kind discovered would have required electricity, water and regular tending.

[8]    The summary of facts recorded that Mr Graham told the Police he had knowledge of the cannabis grow but stated another person was responsible for it.

[9]    In Mr Graham’s bedroom in the dwelling house, the Police found a .22 inch calibre rifle in a “soft” carry bag, certain ammunition loose in the room and not secured and a .38 inch calibre Webley pistol.

The District Court decision

[10]   Mr Graham did not hold a firearms licence. The Judge noted that, if Mr Graham had a firearms licence, he would have been required to do a course that would have taught him the safe way to keep firearms. He pleaded guilty to a representative charge of being in possession of firearms without a licence. On that charge, he was fined $500 and ordered to pay Court costs of $130. The Judge sentenced Mr Graham on the basis the firearms were inherited.

[11]   Mr Graham pleaded guilty to a charge of possession of the pipe for committing the offence of smoking cannabis.1 On that charge, he was convicted and discharged.

1      Misuse of Drugs Act 1975, ss 13(1)(a) and 13(3).

[12]   The Judge summarised the information in the summary of facts as to the three offences.2 He noted Mr Graham was aged 51 and had not appeared in Court for around 30 years. He said Mr Graham had appeared in Court as a young man on charges of a similar nature but said he agreed with counsel’s submission that sufficient time had passed that certainly no uplift was justified. The Judge noted Mr Graham’s counsel had asked that he be sentenced by way of a fine, giving credit for a prompt guilty plea following a refinement of the charges originally brought. Counsel had also referred to Mr Graham’s personal circumstances, a breakdown in his marriage, death of parents and Mr Graham suffering from “some depression and anxiety”. The Judge then said:

[10]      In relation to the cannabis grow, he says that you have provided the name of the person responsible to the police. That particular individual has declined to make any comment and it does not seem to have been pursued any further. Mr Eaton submits that whilst you knew of a cannabis grow you did not know about the extent of it and had rather thought that it really consisted of only a handful of plants and a much more minor operation. I have asked the police about that and they accept that for current purposes they cannot prove beyond reasonable doubt that you knew about the full extent of the grow.

[11]      Having said that, clearly you, with knowledge, allowed some person to cultivate cannabis on your property and in so doing, even accepting your version of events which I must do, you must have been wilfully blind to what was going on. The grow itself was clearly a reasonably significant grow with a commercial end to it.

[12]      If I was satisfied that you had full knowledge of that grow, the sentencing today would be put off for the preparation of pre-sentence reports, et cetera, to look at the more significant sentences available. But accepting what you have said, in my view the appropriate penalty is a reasonably modest term of community work. In setting that I have taken into account the various mitigating features I have referred to.

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 there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 As the Court of Appeal stated in Tutakangahau v R, “an appellate court will not intervene where the sentence is within the range that can properly be justified by

2      Police v Graham [2018] NZDC 20050.

3      Criminal Procedure Act 2011, ss 250(2) and 250(3).

accepted sentencing principles”.4 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.5

Submissions for appellant

[14]      Mr Eaton QC referred to the history of the proceedings, the charges originally laid which included possession of a class C drug, cultivation of cannabis, possession of a class A drug and three separate Arms Act 1983 offences for the pistol, the firearm and ammunition. He referred to the way the admissibility of evidence had been challenged based on issues raised over the way the search warrant had been obtained. He acknowledged those challenges had been rejected in both the District Court and High Court. He said that, following the vacating of a defended hearing after review by the Police, various charges had been withdrawn and the ultimate charges laid. There had then been immediate guilty pleas.

[15]      Mr Eaton referred to the submissions he had made in the District Court. He had submitted there that Mr Graham ought reasonably to be treated as a first time offender. He did not dispute that he was a cannabis user. His explanation for the cannabis grow was that he was approached by a friend of his father’s seeking permission to store trailer units on his property. At that stage, the friend had a concept plan of creating liveable units. Mr Graham had agreed that person could leave one trailer unit on his property. The person had begun growing cannabis within the unit. The unit was parked some distance away from Mr Graham’s home. Mr Graham asserted he had no involvement whatsoever with the cannabis grow and received no financial benefit. Through counsel, Mr Graham also said he “always understood there were no more than about six plants and that the grow was for the use of the offender and his associates”. Mr Eaton said that, following the execution of the search warrant, Mr Graham was assured that the owner of the unit would confess to the Police that he and not Mr Graham was solely responsible for the cannabis grow. Mr Graham gave the officer in charge this person’s name and contact details. Mr Graham understood

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

5      Ripia v R [2011] NZCA 101 at [15].

the person would take responsibility for the cannabis grow but it was understood that, when approached by the Police, the person refused to make any statement.

[16]      Mr Eaton had submitted that, following further investigation, the Police withdrew the allegation that Mr Graham personally was cultivating or dealing in cannabis.

[17]      Mr Eaton had submitted that Mr Graham had been taken advantage of by a family friend, had been cooperative with Police and had some knowledge of but no other involvement in the cannabis grow. He had submitted the firearms offences were to be treated as licencing offences. Mr Eaton submitted that Mr Graham was entitled to credit for his guilty plea and for having an unblemished record for the past 33 years. He had submitted that the least restrictive appropriate sentence for the offending was the imposition of fines.

[18]      In further submissions on appeal, Mr Eaton said that, during the sentencing hearing, the Judge had observed that a fine would not be appropriate if Mr Graham had known the cultivator was engaging in a commercial cannabis grow. Because the prosecutor had no particular knowledge of the case, the sentencing was adjourned whilst enquiry was made of the prosecutor who had been previously involved with the file. The prosecutor then confirmed that the prosecution file revealed no evidence to suggest that Mr Graham had knowledge of a commercial grow. Sentencing proceeded on that basis.

[19]      Mr Eaton said that, in assessing culpability on a permitting premises charge, the Court would have regard to the nature of the substantive offence and the offender’s knowledge of that offence. He acknowledged that, if a defendant was permitting their residential premises to be used, it was likely greater knowledge would be inferred. He said such an inference would be less likely where the trailer was on a rural property “some distance” from Mr Graham’s home in a trailer unit which Mr Graham had no reason to access.

[20]      Mr Eaton referred to the guideline judgment in R v Terewi and the way the Court of Appel had said that, with cultivation of a small number of plants for personal

use, “offending in this category is almost invariably dealt with by a fine or other non- custodial sentence”.6 He submitted culpability must be less for permitting premises.

[21]      Mr Eaton referred to the way High Court Judges had dealt with this sort of offending in Sherwood v Police and Riches v Police.7 Mr Eaton said the Judge in the instant case had not referred to a starting point. He said that the starting point must have been 120 hours’ community work “accepting a full credit for a guilty plea and previous good character”. Mr Eaton however then argued the Judge had not given credit for previous good character.

[22]      Mr Eaton claimed in submissions there had been very good reasons why the prosecution had withdrawn certain charges and “agreed for the sentencing to proceed on the basis that the appellant’s knowledge of the cannabis grow was limited to a handful of plants for personal use”. He submitted the manner in which the Judge had approached sentencing gave a perception that Mr Graham was being sentenced on the basis that “he had already managed to secure a pretty good deal with the police”. He submitted that, if Mr Graham had been found guilty of cultivating a handful of plants for personal use, he would have been fined, and permitting premises to be used is not as serious as the offence of cultivation.

[23]      Mr Eaton also submitted the Judge had made an error in not considering how ss 13 and 15(1) of the Sentencing Act 2002 created a presumption in favour of the use of fines.

[24]      Mr Eaton submitted the sentence should be quashed and a credit of around 40 per cent given to reflect previous good character and prompt guilty pleas.

[25]      In response to submissions from the Crown, Mr Eaton said there was no evidence here from which the Judge could have inferred this was a situation where there had been “wilful blindness” to the scale of the cultivation and that, if the Judge was going to sentence on that basis, as he submits he did, the defence should have been given notice of this so that there could have been a disputed facts hearing. Mr

6      R v Terewi [1999] 3 NZLR 62 (CA) at 64.

7      Sherwood v Police [2017] NZHC 1024; Riches v Police [2017] NZHC 2035.

Eaton said Mr Graham had been sentenced after the prosecution advised the Police had no evidence that Mr Graham knew there was a commercial growing operation. He submitted that here there were very few of the circumstances that had justified the Court of Appeal upholding a sentence of two years’ imprisonment in R v Edmonds.8

Respondent’s submissions

[26]      Ms Dayal submitted the sentencing Judge was entitled to take into account the full scale of the cultivation which resulted from Mr Graham allowing his premises to be used, albeit he did not know about the actual scale of the offending. She suggested there were parallels with the case of R v Edmonds. She noted that, in R v Edmonds, the appellant claimed to have no knowledge of the cultivation at all where, here, Mr Graham did acknowledge knowledge of a cultivation, just not the scale. She submitted that such knowledge suggested wilful blindness and it was open for the Judge to proceed on that basis.

[27]      Ms Dayal said the cases of Riches v Police and Sherwood v Police could be distinguished on the facts.9 She submitted the Judge had taken into account Mr Graham’s explanation as to how the offending came about in imposing what she submitted was a lenient sentence where there was a “sophisticated cannabis grow”.

[28]      Ms Dayal referred to the provisions of the Sentencing Act which set out the circumstances in which the presumption in favour of a fine as a least restrictive sentence can be displaced. She said that, although the Judge had not specified why community work was more appropriate, he would have considered the s 13 factors when making his assessment.

[29]      Ultimately, Ms Dayal submitted Mr Graham had not established that the sentence was manifestly excessive.

8      R v Edmonds [2009] NZCA 54.

9      Above n 7.

Discussion

[30]      Ms Dayal had not appeared at the sentencing of Mr Graham in the District Court. She did not take issue with Mr Eaton’s account of what occurred during the hearing, the adjournment and the response that came back to the Court from the Police.

[31]      The Judge referred to the Police accepting “that for current purposes they cannot prove beyond reasonable doubt that you knew about the full extent of the grow”. He also said Mr Graham “must have been wilfully blind to what was going on”. Those comments suggest he was reluctant to accept Mr Graham’s knowledge of the grow was as limited as Mr Graham suggests.

[32]      On the other hand, the Judge said he had to accept Mr Graham’s “version of events”. At [12], the Judge said he was sentencing Mr Graham on the basis he did not have full knowledge of the grow and that, if he had, he would have been considering the sort of sentence for which pre-sentence reports would have been necessary. I infer such sentences could have included either imprisonment or home detention. The Judge then said that, accepting what Mr Graham had said about how the cultivation had come about, he had decided the appropriate penalty was “a reasonably modest term of community work”.

[33]      The Judge dealt with the firearms offences on the basis they were licencing offending rather than something more sinister. He referred to the matters relating to Mr Graham personally which had been advanced in submissions.

[34]      Although the Judge referred to this being a situation where Mr Graham must have been wilfully blind to what was going on, the actual sentence imposed was consistent with the Judge accepting, albeit grudgingly, that Mr Graham’s knowledge of what was going on was more limited.

[35]      If Mr Graham had been wilfully blind to what was going on, that wilful blindness would have justified the Judge sentencing him on the basis that knowledge could be inferred from evidence of wilful blindness to suspicious circumstances.10  In

10     R v Sweeney [1982] 2 NZLR 229 (CA) at 230; Keane v R [2015] NZCA 31, (2015) 27 CRNZ 390

at [10]-[11].

not calling for reports, the Judge proceeded on the basis he did not have such knowledge.

[36]      I consider the Judge was entitled to regard Mr Graham’s offending as more culpable because of the extent of the cultivation which had been discovered without having to find that Mr Graham had been wilfully blind or that he had knowledge of the full extent of the cultivation.

[37]      Mr Graham admitted that he permitted someone to cultivate cannabis in the structures on his property. Although he says he did this thinking the premises would be used just to cultivate a handful of plants, in allowing someone to come onto the property, and use the semi-trailer for cultivating cannabis, he was willing to take a risk over precisely what the other offender would be doing there.

[38]      In his submissions in the District Court, Mr Eaton acknowledged the culpability of the offending could be influenced by the degree of knowledge. Mr Graham knew the premises were being used for growing cannabis. He must have known power had been connected to the grow areas. He must have known water was being supplied to the trailer.

[39]      There was not the combination of circumstances that existed in R v Edmonds, where the sentencing proceeded on the basis:11

… that this is a cultivation at the high end of the scale and that the accused’s involvement in it, given his living arrangements on the property and the scale of what was going on, must have been one of more than simply turning a blind eye.

[40]      However, in R v Edmonds, the extent of the offender’s knowledge and the extent of the cultivation had justified a prison sentence of two years. Here, the issue is whether or not Mr Graham’s knowledge and the extent of the grow justified a sentence of 80 hours’ community work.

[41]      Mr Graham may have thought the cultivation was no more “than about six plants and the grow was for the use of the offender and his associates”, but he

11     R v Edmonds, above n 8, at [50].

obviously did nothing to limit the extent of the cultivation that took place. What was found in the trailer, in terms of the guidelines in Terewi, could have required a sentence of imprisonment or some other custodial sentence.12

[42]      In Riches v Police, the grow was of six mature cannabis plants and two smaller plants.13 The hydroponic cultivation was for the offender’s personal use. In my judgment on that case, I accepted Corrections’ advice that community work was not recommended because it would make the offender’s employment more difficult. I referred to other instances where, in the High Court, fines had been imposed rather than community work.14 Each of those cases involved cultivation of cannabis on a much lesser scale than was being carried on at Mr Graham’s property.

[43]      In Sherwood, the High Court had to consider what an appropriate sentence would be for permitting premises to be used for the cultivation of cannabis.15 The grow there was of nine plants close to the house. There were 256 plants further away on the property, grown by Ms Sherwood’s partner, which Ms Sherwood had no knowledge of. The plants were in the garden without the need for a power or water supply, as Mr Graham had permitted with the grow on his property.

[44]      Gordon J accepted that there were issues of power and control in the relationship that had led to Ms Sherwood permitting nine plants to be grown close to her house and, at the time she was being sentenced, that relationship had come to an end.

[45]      Mr Graham could not have expected to be treated as a first time offender for this sort of offending when he had previous convictions on cannabis-related charges and when, on sentencing, his counsel did not dispute that Mr Graham was a cannabis user. The Judge appropriately recognised the absence of convictions over 33 years by not requiring an uplift for previous offending.

12     R v Terewi, above n 6.

13     Riches v Police, above n 7.

14     Leaupepe v Police [2016] NZHC 76; Sadd v Police HC Blenheim AP7/98, 7 July 1998; Parker v Police HC Wellington CRI-2007-485-150, 27 February 2008.

15     Sherwood v Police, above n 7.

[46]      Here, the District Court Judge did not articulate a starting point and then the discount for guilty pleas but I consider there would have been such a discount. Mr Eaton effectively acknowledged this by suggesting that the starting point could have been 120 hours’ community work, had the Judge also factored in a discount for good character. Without that discount, the starting point would have been between 100 and 110 hours’ community work.

[47]      The Judge must have considered whether a fine was sufficient. Mr Eaton said to me he had not referred the Judge to ss 13 and 15(1) of the Sentencing Act which create a presumption in favour of the use of fines but Mr Eaton had submitted a fine should have been the penalty.

[48]Section 13 states:

13   Sentence of fine

If a court is lawfully entitled under this or any other enactment to impose a fine in addition to, or instead of, any other sentence, the court must regard a fine as the appropriate sentence for the particular offence unless—

(a)the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by imposing a fine; or

(b)the court is satisfied that the application of any of the principles in section 8 to the particular case make a fine inappropriate; or

(c)any provision applicable to the particular offence in this or any other enactment provides a presumption in favour of imposing any other sentence or requires the court to impose any other sentence; or

(d)the court is satisfied that a fine, on its own or in addition to a sentence of reparation, would otherwise be clearly inadequate in the circumstances.

[49]      On Mr Graham’s account, he had knowingly permitted cannabis to be grown on his property in a large semi-trailer and appears never to have investigated the extent of the cultivation that was occurring there. As a result, he permitted a cultivation to take place in a relatively large and sophisticated way. He knew the grow was to produce cannabis not just for the grower but also for “his associates”. A community- based sentence, more than a fine, was justified for the purposes of accountability,

denunciation and deterrence referred to in s 7 of the Sentencing Act, while nevertheless being the least restrictive outcome that was appropriate in the circumstances.

[50]      I have not been persuaded that the end sentence imposed was manifestly excessive.

[51]The appeal is dismissed.

[52]      Mr Graham is to report to Community Probation by 4.00 pm on Monday 7 January 2019.

Solicitors:

JMH Eaton QC, Barrister, Christchurch Raymond Donnelly & Co., Christchurch.