H v Police HC Gisborne CRI 2006-016-3469

[2007] NZHC 1614

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2006-016-3469

H

v

NEW ZEALAND POLICE

Hearing:         14 February 2007

Appearances: N Wright for Mr H   

R J  Collins for Crown

Judgment:      14 February 2007   

(ORAL) JUDGMENT OF ANDREWS J

Solicitors:

Rishworth Wall & Mathieson, Gisborne Fax [phone]

Crown Solicitors, Napier fax [phone]

W M H  V NZ POLICE HC GIS CRI 2006-016-3469  14 February 2007

Introduction

[1]      Mr H     has pleaded guilty to one charge of cultivating cannabis and one charge of possession of cannabis oil.  However, he disputes the fact that the cannabis was cultivated for commercial purposes and says that it was for his own use.

[2]      Accordingly, there has been a hearing before me today at which I have heard evidence on this point.

Background

[3]      On 12 November 2006 the Police executed a search warrant under the Misuse of Drugs Act 1975 at Mr H    ’s home at [address], Gisborne.  In the kitchen the Police located a small container with cannabis oil inside it, together with utensils.

[4]      A search of the roof cavity of the residence disclosed a growing operation which comprised approximately 150 cannabis plants (there is some dispute as to the precise number) in various stages of growth.  There were growing lights, reflective insulation paper and fertilisers, all of which  were used  to  cultivate the  crop  of cannabis.   Examination of the cannabis plants showed that they had been propagated from cuttings.

[5]      In the garden of the property the Police found a further seven cannabis plants growing amongst tomatoes and cucumber plants.

[6]      The Police valued the potential crop of cannabis buds, or head, at some

$112,500.   The Police evidence also was that potential cuttings from the plants had a value of some $3,000.

[7]      The onus is on the Crown to prove the commerciality of the plants.  I stress that there is no onus on Mr H     to prove that he did not have that intent.

[8]      I heard evidence today from Constable Pitkethley as to the search, and from Detective Beattie who gave essentially expert evidence as to the plants and their potential value on reaching maturity.  I should add that the plants that were found were not, for the most part, anywhere near the stage of maturity.

[9]      The  evidence  of  Constable  Hewson  was  admitted  by  consent  and  his evidence included a transcript of a video interview with Mr H     on the day of the Police search.

[10]     Essentially the Police evidence was, as outlined above, as to the search and the value of the crop.

[11]     Mr H     also gave evidence. This was that he was a long-time user of cannabis having taken it from about 1975 or 1976.  He suffered an accident in 1989, which has left him in severe pain.  He regularly smokes cannabis to ease that pain. He is on medication, and for that reason he prefers to smoke the younger cannabis leaf which is less strong.  He said that he couldn’t take the stronger, mature material. The plants found by the Police was his first experience of growing cannabis himself, and he did it so that he would not have to buy it.  He had been given five plants and took the cuttings himself from those plants.  He lost track of the number of plants propagated and did not realise how many he had.  He thought he had in the order of

100.  Finally, he said that he was about to harvest the crop when the Police searched his home and that he had no intention to sell it.    His intention was to harvest the crop while still immature.

[12]     The  Police  case  is  that  from  the  number  of  plants  the  only  logical  and reasonable inference is that they were grown for a commercial purpose.  Detective Beattie’s evidence was that the potential crop, whether in leaf or bud form, was vastly in excess of what a person smoking five cannabis cigarettes a day (which was Mr H    ’s estimate of his daily use) would use. Hence, as noted  earlier, the Crown’s argument that the only logical and reasonable inference was that the operation was commercial.

[13]     Against  that  I have Mr  H    ’s  assertion  that  the  cannabis  was  grown purely for his own use.

[14]     I have  first  to  assess  the  credibility of  the  witnesses.    There  is  no  real challenge as to the credibility of the Police witness.  It was accepted that they had found cannabis plants in the numbers stated although, as noted earlier, there was some dispute as to whether there were something over 100 or something approaching

150.

[15]     My real concern is as to Mr H    ’s evidence.  His evidence, I have to say, was in large form consistent as between his video interview and the evidence he gave today.   I accept that he indeed had an accident and has been in pain, and that is supported by statements annexed to the pre-sentence report from Dr Miller, a chiropractor,  and  a  radiologist  in  Gisborne.    Both  of  these  confirm  that  he  is receiving treatment for various injuries.

[16]     However, I am unable to accept as credible Mr H    ’s assertion that he was growing cannabis plants in the numbers he was, purely for his own use.  Even if he were using the plants at an immature stage, I accept Mr Beattie’s evidence that there were still vastly more than he would himself use.

[17]     I accept that there was no evidence of any commercial aspects of sale, in the form of deal bags, lists of customers, cash, or anything else, but I do not find that determinative.  I consider it is quite possible that Mr H    , who appears to me to be a skilled gardener who obviously knows a lot about the propagation of many types of plants, would have been asked or might have agreed to grow cannabis on the basis that he could take what he needed for himself whilst somebody else would take the rest.   I accept that the only logical and reasonable inference from the facts before me is that this was a commercial operation. Having said that, I accept that Mr H     himself appears to have got nothing out of it other than some cannabis for his own use.

[18]     On the basis of that finding Mr H     will call to be sentenced under the

Terewi principles in, I suggest, the second band of the Terewi range but I will put him at very much the lower end of that range.

Andrews  J