Grumball v Police HC Invercargill CRI 2010-425-1

[2010] NZHC 1031

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2010-425-1

BETWEEN  ANNTWINETTE MAREE GRUMBALL Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         10 May 2010

Counsel:         PHB Hall for Appellant

M G Sinclair for Respondent

Judgment:      17 May 2010

JUDGMENT OF MILLER J

[1]      At the hearing on 10 May I made the following orders:

(a)The conviction on the charge of possessing cannabis for supply is quashed and a conviction for possession of cannabis substituted.  A sentence of three months imprisonment is imposed on that charge;

(b)The sentence of two years imprisonment on the lead charge of cultivating cannabis is set aside and a sentence of 16 months imprisonment substituted;

(c)The sentence for possession of utensils remains, as do the release conditions imposed in the District Court.

The substance of these orders is that Ms Grumball is sentenced, in effect, to time served.  (She has been in custody since she was sentenced on 15 September 2009.)

My reasons may be stated shortly.

ANNTWINETTE MAREE GRUMBALL V NEW ZEALAND POLICE HC INV CRI 2010-425-1 17 May 2010

[2]      Ms Grumball was found with some 85 cannabis plants, at varying stages of maturity, at her home.  She also had 196 grams of dried cannabis, which meant that the presumption of purpose of sale was available: s 6(6) and Schedule 5 Misuse of Drugs Act 1975.

[3]      A  disputed  facts  hearing  was  held,  for  Ms  Grumball  did  not  accept  the quantity alleged or the purpose of sale.  She admitted that she supplied cannabis to others, but not that she sold it.  She further admitted that she had in the past supplied cannabis to her daughter, who was, however, aged 18 when the cannabis the subject of these charges was found.

[4]      Counsel explained that having heard the first police witness, Constable de Villiers, at the disputed facts hearing, the Judge intimated that he found the witness persuasive and was disposed to find that Ms Grumball had possession of some 85 plants and that the street value of the cannabis plants was about $125,000.  He was prepared to extend to her a full discount for a guilty plea if entered at that point. Faced with that intimation, she pleaded guilty to all of the charges.  The police were not required to call an officer who would have deposed to the value of the cannabis. Nor did Ms Grumball give or call evidence, as she must have done if she were to rebut the presumption.

[5]      In due course Ms Grumball was sentenced to two years imprisonment on the cultivation charge, the starting point being three years and three months imprisonment.  The Judge appears to have placed the offending at the top of Band 2 or bottom of Band 3 in R v Terewi.[1]   He emphasised the value of $125,000 and the commercial purpose of the operation, describing it as to supply cannabis “to the market”.  He reduced the starting point by a little more than one third for her guilty

plea, although it was not entered at the earliest opportunity, her mental health issues and her addiction to cannabis.  He accepted that imprisonment would be difficult for Ms Grumball.  A concurrent sentence of one year’s imprisonment was imposed for possession for purpose of supply, and three months for possession of utensils.

[1] R v Terewi [1999] 3 NZLR 62.

[6]      The charge of possession of supply alleged that Ms Grumball, contrary to s

6(1)(f) of the Act:

did have possession of a Class C controlled drug, namely cannabis for a purpose specified in section 6(1)(c) of the Misuse of Drugs Act.

It is now common ground that the particulars of the charge were wrong.   It is an offence to possess cannabis for the purpose of sale, or for the purpose of supply to persons under the age of 18 years, but the purpose specified in s 6(1)(c) of the Misuse of Drugs Act is that of supplying a Class A or B controlled drug.  There is no suggestion that Ms Grumball had any of the cannabis plant or dried cannabis (to which this charge presumably related, although no distinction was drawn in the District Court) for that purpose.

[7]      For this reason it was necessary to set aside the conviction for possession of supply.

[8]      I  am  not  persuaded  that  it  would  be  correct  to  amend  the  charge  and substitute a conviction for possession for sale, or for supply to persons under 18. The quantity of cannabis was very large, but she admitted giving it to others and her house lacked the usual  paraphernalia of a drug dealer.    If faced  with a  charge specifying a purpose of sale, Ms  Grumball might have elected  to complete the disputed facts hearing, presumably giving evidence to displace the presumption.

[9]      Mr  Hall’s  instructions  were  that  a  conviction  for  possession  might  be substituted, and I took that course.

[10]     It  remains  the  case,  as  Mr  Hall  properly  accepted,  that  the  purpose  of supplying cannabis to others, which was undoubtedly established on the evidence, is an aggravating feature of cultivation.   But I accept his submission that the lead sentence must be adjusted, since the Judge imposed it on the basis that the purpose was commercial, falling within Categories 2 or 3 of Terewi.  If her purpose was not commercial, she should have been sentenced on the basis that she was at the top of Category 1.

[11]     A Category 1 offence may still justify a sentence of imprisonment.   The maximum sentence is seven years (limited to two years on summary conviction). The nearest parallel appears to be R v Gatenby, in which the Court of Appeal held that a starting point of 18 months imprisonment was well justified on similar facts.[2]

[2] R v Gatenby CA511/04, 28 April 2005 at [11].

[12]     Accordingly, I substituted a starting point of two years imprisonment and allowed a discount of one-third, or eight months, for the guilty pleas and other mitigating factors, resulting in a lead sentence of 16 months imprisonment.

Miller J

Solicitors:

Crown Solicitor’s Office, Invercargill