Grimshaw v Police HC Hamilton CRI 2010-419-78

[2011] NZHC 710

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2010-419-78

KERRY BRUCE GRIMSHAW

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 February 2011

Appearances: D H Hall for Appellant

P V Cornege for Respondent

Judgment:      4 February 2011

JUDGMENT OF KEANE J

Solicitors:

Crown Solicitor, Hamilton

KERRY BRUCE GRIMSHAW V NEW ZEALAND POLICE HC HAM CRI 2010-419-78 4 February 2011

[1]      On 18 August 2010 Kerry Grimshaw, on his plea, was convicted of twice cultivating  cannabis,  first  between  1 April  -  31  October  2009,  and  then  on  17

November 2009. He was convicted also of possessing cannabis on the latter date. He was sentenced to come up if called upon within ten months.

[2]      Mr Grimshaw appeals his conviction. He ought, he contends, to have been discharged without conviction. He submits that the Judge gave excessive weight to the relative seriousness of the offending. She did not, he contends, give proper consideration to his circumstances.

[3]      The Judge, he contends, failed to take into account his lack of previous offending and his low risk of re-offending and the effect a conviction would have on his ability to travel internationally. Also that he had been established by a medical test to be clear of cannabis use and had made a considerable change in his lifestyle.

[4]      To the contrary, he contends, and this is the main point of his appeal, the Judge ruled out from the outset the possibility of a discharge without conviction, having formed the fixed view that the material Mr Grimshaw had filed in support of his application was indicative of a sham or fraud. In this, he contends, she exhibited bias.

[5]      On this appeal, a general appeal against conviction and sentence by way of rehearing,[1]  I must consider the matter afresh. That said, I am only entitled to differ from the Judge, whose decision is under appeal, if Mr Grimshaw first demonstrates that her decision was wrong in law or fact or in the exercise of her discretion.

Fact summary

[1] Summary Proceedings Act 1957, ss 115, 119.

[6]      There was no issue before the Judge as to the nature of the offending. At about 9.37 am on 17 November 2009, according to the summary of facts that Mr Grimshaw did not contest, the police executed a search warrant at his Turua address.

He was present at the time when they did so.

[7]      The police found in the garage a purpose built room which was equipped with a ventilation system, fans and benches. Within the room there were chemicals, and more materially, two large cannabis plants growing under lights, each one metre tall and each showing signs of having recently been tended.

[8]      Just outside the room they found three containers containing the remnants of three further large cannabis root systems. Inside the house they located three bags of cannabis, each weighing some 28 grams, along with scales and empty snap lock plastic bags.

[9]      Mr Grimshaw admitted to growing the two cannabis plants and the three plants of which there were remnants. He said that he had been growing plants at the address for about four months. The dry cannabis in the house, he said, was for his own use. He bagged it in precise amounts so that he knew how much he was using. By implication, he denied any inference of dealing.

[10]     The summary concluded by stating that he was a 57 year old man currently on a  sickness benefit, who had previously appeared before the Court. In fact, he has no previous convictions.

Pre-sentence report

[11]     Mr Grimshaw, his pre-sentence report narrated, was once a builder and had also worked in the health food industry. At the time of sentence he was a sickness beneficiary.  He  reported  considerable  health  issues.  He  was  convinced  that  he suffered  'sick  building  syndrome'.  He  denied  that  he  was  a  beneficiary  simply because he exhibited stress. He denied also ever having been diagnosed with a psychological disorder.

[12]     Mr  Grimshaw  acknowledged  that  up  until  the  offence  date  he  had  used cannabis every day to find relief for the 'physical torment' that he had suffered. He saw his offending as 'silly' and explained that he had merely tried to help himself, having been failed by the medical system. He said that he had not used cannabis

since he was charged and he did not need drug counselling. He was assessed to be at low risk of re-offending.

[13]     Mr Grimshaw was assessed not to be in need of supervision. His offending might, his assessor considered, warrant a fine or even, if the Court were inclined, as Mr Grimshaw sought, a discharge without conviction. The sentence recommended was nevertheless community work.

Affidavit evidence

[14]     In  support  of  his  application  to  be  discharged  without  conviction  Mr Grimshaw  filed  two  affidavits  in  the  first  of  which  he  described  his  medical condition in some detail and then, more materially, said he had discovered new technology which would create 'a paradigm shift for mankind'.

[15]     Mr Grimshaw spoke of  what  he described  as  'UVC  technology',  various forms of cleaning solutions that eliminate toxic chemicals used commercially and domestically. He had obtained exclusive distribution rights two years before, he said, and had planned to franchise this technology throughout Australasia. He anticipated

50 franchises in New Zealand and 250 in Australia.

[16]     All was contingent, however, on obtaining finance, of the order it seems of US $5 - $10M. He and his partner were going to have to borrow that offshore, in all likelihood in China. In his second affidavit he gathered together diverse materials that he believed amplified what he had to say in his first affidavit.

Decision under appeal

[17]     The Judge concluded that a discharge could not be warranted under s 106 of the Sentencing Act because that is subject to s 107, which prohibits discharge unless the Court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[18]     The Judge weighed, as is essential, the gravity of the offending against the direct and indirect consequences of conviction and whether the latter was out of all proportion with the former.[2]

[2] Fishery Inspector v Turner [1978] 2 NZLR 233 (CA).

[19]     The  Judge  considered  Mr  Grimshaw's  offending  moderately serious.  She pointed to the room specially prepared for cultivation. Also to the plants Mr Grimshaw was then tending, only to be halted by the search. Such offending, she said, normally attracts the standard range of penalties.

[20]     In weighing the consequences of a conviction for Mr Grimshaw, the Judge set to  one side  that  he used cannabis  to  self  medicate. That,  she said,  is  far from uncommon. She discounted completely his concern that a conviction would impede him in his business venture by preventing him from borrowing offshore to launch it, or entering into any contracts called for or travelling internationally. She did not accept that the proposed venture was a real prospect in any sense.

[21]     The  Judge  found  Mr  Grimshaw's  affidavit  evidence,  most  especially  his second affidavit, completely lacking in cogency. She described the second affidavit as:

an extraordinary wad of paper which seems to me  to contain grandiose statements about the effects of a system for dealing with a global health issue which you say will have global beneficial results. But regrettably hinge upon the need for funding of between $US5 million to $US10 million now to be pursued out of China. All of which promising benefits will be placed out of reach of yourself and the global community if you were to be convicted of these offences.

[22]     The Judge therefore reached this conclusion, and it is this especially that appears to be the reason for Mr Grimshaw's appeal:

This, as I say, wad of paper contains repeated and unsupported assertions and  many  blank  pages.  The  material  and  its  presentation  gives  the appearance of a sham or a fraud and is not in any form upon which I can place appropriate evidential weight and I set it to one side accordingly.

[23]     The Judge concluded that Mr Grimshaw had to be convicted of the two offences to which he had pleaded but, when she came to impose sentence, she went

no further than to order Mr Grimshaw to come up for sentence if called upon within ten months.

Conclusions

[24]     I am satisfied that the Judge correctly stated the test applying which is, as Mr Grimshaw's counsel has responsibly accepted, a stiff test calling for extraordinary circumstances.

[25]     I am also satisfied that the Judge was right not to accord Mr Grimshaw's two affidavits any weight. Neither established in any cogent way the business plan on which Mr Grimshaw relied, or how a conviction might impede him from advancing it.

[26]     The paragraph in which the Judge expressed that conclusion, however, did carry an unfortunate connotation. When the Judge of a sham or a fraud, she could have meant one of which Mr Grimshaw was the victim. To that he could take no objection. Or she could have meant that he was the perpetrator of the sham or fraud. It is that connotation that has affronted Mr Grimshaw.

[27]     I wish to be clear therefore that, while I consider Mr Grimshaw's appeal without merit, I do accept that he sincerely believed in the business plan of which he gave evidence in the District Court. I wish also to add that, though his appeal against conviction must be dismissed, he was sensible not to appeal his sentence. It was very

lenient. All of that said, I dismiss his appeal.

P.J. Keane J