Mains v R
[2016] NZCA 290
•27 June 2016 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA686/2015 [2016] NZCA 290 |
| BETWEEN | MAXWELL JOHN MAINS |
| AND | THE QUEEN |
| Hearing: | 30 May 2016 |
Court: | Ellen France P, Clifford and Katz JJ |
Counsel: | C M Ruane for Appellant |
Judgment: | 27 June 2016 at 11 am |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe sentence of three years and six months’ imprisonment on the charge of joint possession of 53 pounds of cannabis for the purpose of sale is quashed and a sentence of three years and three months’ imprisonment substituted. All other sentences are confirmed.
_________________________________________________________________
REASONS OF THE COURT
(Given by Katz J)
Mr Mains appeals the sentence of three years and six months’ imprisonment imposed on him by Mander J in respect of two counts of possession of cannabis for sale and two counts of selling cannabis.[1] That sentence was reached by using a starting point of three years nine months’ imprisonment and then allowing a two month discount for personal mitigating factors and a further one-month (two per cent) discount for the late entry of guilty pleas.
[1]R v Mains [2015] NZHC 2750.
Mr Mains contends that the Judge’s starting point of three years and nine months’ imprisonment was too high, having regard to Mr Mains’ overall role within the cannabis operation. Second, Mr Mains submits that the discount he was given for pleading guilty shortly before trial was insufficient. These two errors are said to have resulted in an end sentence that was manifestly excessive.
Background
In 2008 the police commenced an investigation targeting large-scale cannabis cultivations located in Western Southland, including Fiordland.[2] When the police terminated the operation in May 2012 they found large quantities of cannabis that had been processed and stored on council owned scrub land in Queenstown. An area on that land had been cleared for the purpose of drying and processing cannabis. There were a series of tunnel type tracks in the scrub that led to another area that had been used to manicure and package cannabis into one pound bags. In that area police located two large plastic bins that contained equipment used to process and manicure cannabis, including electronic scales.
[2]Our summary of the factual background is based on the sentencing notes of Mander J and the agreed summary of facts.
The police also located five large plastic bins on the scrub land, containing 16 one pound bags of cannabis and 37 pounds of loose cannabis. In total, 53 pounds of dried premium grade cannabis head was located and recovered. The value of this cannabis is conservatively estimated as being worth approximately $170,000 if sold by the pound, and considerably more if broken down into retail amounts.
Mr Mains pleaded guilty to joint possession of this cannabis for the purposes of sale, either as a principal or as a party, with a Mr Brian McCarthy. Mr McCarthy was recognised as the lead offender, having been involved over a number of years in the cultivation, harvesting and distribution of cannabis. Mander J described him as “undoubtedly … the central figure in the wider cannabis operation which involved other cultivators”.[3]
[3]R v Mains, above n 1, at [7].
Mr Mains was initially charged with cultivating cannabis, but those charges were ultimately withdrawn. Mr Mains denied any involvement in planting and tending the cannabis plants, but he did acknowledge assisting Mr McCarthy in the harvesting of some cannabis plots. Mander J described Mr Mains’ role as essentially that of an assistant to Mr McCarthy in the wider cannabis operation. He said:
[11] I accept that Mr McCarthy was the lead offender and the central player. However, I am also satisfied that you were significantly engaged with him in assisting in the large cannabis operation. You did so fully aware of the nature and size of the cultivation and distribution operation and you were well aware of the very large amounts of cannabis being processed and stored. The detail of the arrangements with Mr McCarthy in terms of your share and financial reward from the cannabis, is secondary to the assistance you provided to Mr McCarthy in respect of that part of the operation which involved the stripping, manicuring, packaging and distribution of the cannabis that had been cultivated. You are therefore required to be sentenced on the basis that you played an active part in the large commercial cannabis operation.
The second charge to which Mr Mains pleaded guilty involved the sale of two ounces of cannabis on 30 April 2012. The third charge related to the sale of a pound of cannabis to a third party for $3,000. The Judge described this offending as “indicative of the nature of transactions by which the cultivated cannabis was to be distributed”.[4]
[4]At [13].
The fourth charge related to the attempted sale by Mr McCarthy of 10 pounds of cannabis which he transported to Dunedin, for sale to a Dunedin dealer. An examination of plastic bags in which the cannabis was packaged identified a fingerprint belonging to Mr Mains. It was common ground that the cannabis to which the second, third and fourth charges related would have been sourced from the amounts packaged and stored on the council land. The Judge concluded that Mr Mains’ “involvement with Mr McCarthy and the cannabis stored on the council land was for the purpose of facilitating these types of large commercial transactions”.[5] Although there was a dispute between Mr Mains and the Crown as to precisely how many pounds of cannabis was Mr Mains’ personal share of the crop, the Judge’s view was that this was not a critical factor for sentencing purposes. Rather, Mr Mains’ culpability fell to be assessed with reference to his overall role within the wider cannabis operation.
Was the starting point adopted too high?
[5]At [16].
Mander J took a starting point of three years and nine months’ imprisonment, with reference to the categories from the tariff case of R v Terewi.[6] That case identifies two categories for commercial cannabis offending:[7]
Category 2: encompasses small-scale cultivation of cannabis plants for a commercial purpose, ie with the object of deriving profit. The starting point 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.
[6]R v Terewi [1999] 3 NZLR 62 (CA).
[7]At [4].
The categories in Terewi, while geared towards cultivation, are equally applicable to supply and sale offending.[8]Turning to the appropriate starting point for Mr Mains’ offending, Mander J said:
[21] Mr Ruane, in his written submissions, has addressed the relative culpability of co-offenders. I accept your involvement is not at the same level of Mr McCarthy who, as I have commented, appears to have been the principal offender and was the central player in wider cannabis cultivation conspiracies involving other offenders over several growing seasons. A starting point of six years, however, was taken to mark his culpability.
[22] Importantly, as I have remarked, you were well aware of the nature and size of Mr McCarthy’s cultivation activities, the product from which you involved yourself. It is therefore necessary to consider your participation against that background, which clearly fell within Category 3 of Terewi if only from the sheer amount of cannabis with which you aided him to process, package and distribute.
…
[25] As I have already observed, it is not possible to categorise your offending as otherwise than falling into Category 3 of Terewi. The operation with which you assisted was a large scale drug dealing enterprise. You and Mr McCarthy sat at the upper end of the dealing chain, and while one of the charges relates to the sale of ounces, the cannabis product was packaged for the purpose of sale in one pound lots. The total quantity of cannabis with which the charges are concerned is substantial, involving some 64 pounds, of which 53 pounds was seized from the council land. The categorisation of the offending as being within Category 3 is confirmed on a review of relevant sentencing decisions.
[26] Your involvement in this Category 3 offending, as Mr Ruane has submitted on your behalf, requires some recalibration to reflect the fact that your culpability encompasses a mixture of being a principal in respect of the cannabis which you effectively accept was yours to dispose of as you saw fit, and your role as a secondary party assisting Mr McCarthy’s with his cannabis operation, the greater proceeds from which were to be his. In making that adjustment, I consider the appropriate starting point is one of three years and nine months’ imprisonment.
(footnote omitted)
[8]Bishop v R [2010] NZCA 66 at [19]; and R v Leighs CA360/02, 15 September 2003 at [11].
Mr Ruane submitted that Mander J did not have sufficient regard, when setting the starting point, to Mr Mains’ more limited role in the offending, relative to that of Mr McCarthy. Although Mr Ruane did not dispute that the cannabis operation itself fell within category 3 of Terewi, he emphasised that Mr Mains’ role within that operation was a limited one. His culpability was therefore more accurately assessed as falling within category 2 of Terewi. For example, Mr Ruane submitted that Mr Mains was only to receive seven pounds of the cannabis as a reward for his help, and for his own use (or 15 to 20 pounds on the Crown’s analysis). In either event, the proceeds received from the sale of such quantities of cannabis would be significantly less than the $100,000 figure referred to for category 3 offending in Terewi.
Mr Ruane emphasised that Mr Mains’ assistance was limited in terms of both time (one growing season) and effort. His two sales involved amounts of no more than $500 (two ounces) and $3,000 (one pound). Mr Ruane further submitted that there is no evidence that Mr Mains took any active part in the abortive sale to the Dunedin dealer, other than perhaps to act as a conduit between the dealer and Mr McCarthy. Rather, Mr Mains’ primary role was to assist Mr McCarthy in packaging, harvesting and preparing cannabis for sale. Taking all of these factors into account, Mr Ruane submitted that a starting point between two years six months’ and three years’ imprisonment would appropriately reflect Mr Mains’ culpability.
In our view, however, the starting point adopted by Mander J was within the available range. Mr Mains played an important role in a large scale cannabis operation as Mr McCarthy’s assistant. Mander J was correct, in our view, to conclude that the measure of Mr Mains’ culpability was not the specific number of pounds of cannabis that he could claim as his own (his personal share of the crop). Rather, Mr Mains’ culpability arises from his active involvement in a very significant commercial cannabis processing and distribution operation.
Mander J appropriately took account of Mr Mains’ role as an assistant, rather than a central figure, when setting the starting point. This is reflected in the fact that, although the overall operation fell within category 3 of Terewi, the starting point adopted for Mr Mains was towards the upper end of the category 2 range. This properly reflected that Mr Mains was not the lead offender in a category 3 operation, but that he nonetheless played an important role within it.
Nor is the starting point adopted for Mr Mains out of step with the starting points adopted for other offenders involved in the same cannabis operation. A significantly higher starting point of six years was adopted for Mr McCarthy, which appropriately reflects his role as the central figure in the wider operation.[9] The Dunedin dealer, Mr Tainton, was given a three-year starting point for possession of cannabis for supply and conspiring to possess cannabis for supply. His overall culpability was less, however, than that of Mr Mains.[10]
Was the guilty plea discount insufficient?
[9]R v McCarthy [2013] NZHC 3078.
[10]R v Tainton [2013] NZHC 2513.
The second issue raised by Mr Mains’ on appeal is whether a sufficient guilty plea discount was given.
The Judge allowed a guilty plea discount of one month, or approximately two per cent. He noted that the guilty pleas “were entered very much at the eleventh hour” and that there had been nothing to prevent Mr Mains from entering pleas to the charges to which he eventually pleaded guilty at a far earlier stage.[11] He could have done so on the basis that certain facts were in dispute and that other charges were not conceded. Rather than take such a course, however, Mr Mains had chosen to proceed with his defence of all the charges he faced. Further, he joined in with other defendants in challenging the admissibility of the Crown’s evidence. The net result of such conduct, in the Judge’s view, was that “any credit arising from your formal notification of pleas in the week prior to the commencement of the trial must be extremely limited”.[12] The Judge further observed that:[13]
… as the Court of Appeal has observed, guilty pleas may often be the result of understandings reached between the parties on the charges faced, and the circumstances in which the guilty plea has been entered can potentially result in giving a double benefit. The willingness to accept a particular arrangement can itself be a concession which ought not entitle the defendant to the credit which the pleas might otherwise have attracted. Ultimately, it is a matter of evaluation for the sentencing Judge.
(footnote omitted)
[11]R v Mains, above n 1, at [33].
[12]At [33].
[13]At [32].
As we have noted above, the police operation was terminated in May 2012 and Mr Mains was presumably charged relatively soon after that. On 28 November 2012 Mr Mains’ then counsel, Ms Beaton, wrote to the Invercargill Crown solicitor proposing a resolution of the charges. The plea proposal set out in the letter was expressed to be subject to consideration of any issues of admissibility arising from the search warrants that had been issued, once those warrants were received and reviewed. Subject to that qualification, the plea proposal was:
10.1That the four charges of cultivation should not be included in the indictment to be filed in January, as there is no evidence that Mr Mains was involved as a principal or party to cultivation at any of the four locations alleged;
10.2That the selling charges be combined into one charge between the dates of 30 April to 8 May 2012 as, effectively, a representative charge (with Mr Mains’ consent), to which he would likely plead guilty;
10.3That Mr Mains will also likely plead guilty to a charge of possession of cannabis for the purpose of sale on the basis that he was involved in the drying, processing and packaging of cannabis grown by others, but that his cut for his ‘work’ equated to only about 7 pounds.
11If accepted, the summary of facts will need to be amended substantially to accurately reflect Mr Mains’ offending and to remove suggestions that he was involved prior to 2012. With respect, the values of the alleged offending currently set out in the summary of facts will also require a realistic review given the evidence against Mr Mains.
There was no formal response to that letter. On 6 May 2013 Mr Ruane, who was by then acting for Mr Mains, wrote a further letter to the Crown solicitor, stating that:
4.I understand that the plea proposal has been rejected. I advise that my instructions are that this proposal is still on the table if the Crown is prepared to reconsider the position.
Again, there is no record of any response from the Crown solicitor. Trial preparation continued. Various pre-trial admissibility issues were determined by Mander J in 2014, but were then subject to an appeal to this Court. This Court released its decision on the admissibility issues on 7 July 2015, dismissing the appeals.[14]
[14]Dickson v R [2015] NZCA 286.
Mr Mains’ plea proposal was then revived in a letter to the Crown solicitor dated 24 August 2015, a month before the 28 September 2015 trial date. The proposal set out in Mr Ruane’s August 2015 letter was along similar lines as the earlier plea proposal:
30.I would propose that the selling charges be combined into one charge that between 30 April to 8 May he sold cannabis. That would, in effect, be a representative charge and this would be done with Mains consent. There would need to be agreement about the amounts sold and to whom, but I do not see that is an insurmountable problem.
31.Mr Mains would probably also plead guilty to a charge of possession of cannabis for sale on or about termination date, or in the days leading up to termination. This would relate to his assistance with the processing and packaging of cannabis, probably to include the Tainton cannabis, but that his cut for this equated to about 7 pounds.
On this occasion the Crown solicitor did engage with the plea proposal. The response sought pleas to two cultivation charges, one charge of possession of cannabis for sale with a “cut” of more than seven pounds, and a separate charge relating to the attempted sale to the Dunedin dealer. After further discussions, the Crown solicitor advised that the Crown would accept pleas for the charges that Mr Mains ultimately pleaded guilty to, which did not include any cultivation charges. Agreement was reached on 24 September 2015, the Thursday prior to trial.
Mr Ruane submitted that although the pleas were only formally entered on the morning of trial, the end result was broadly in accordance with a plea proposal that had been offered (albeit conditionally) in November 2012, and subsequently repeated. The Crown, however, had failed to constructively engage with those plea proposals. In such circumstances, Mr Ruane submitted, a full 25 per cent guilty plea discount was appropriate.
Ms Wong, for the Crown, submitted that the Judge was correct not to give any weight to the November 2012 plea offer, given that it was conditional on a review of the admissibility of evidence. That review resulted in an admissibility challenge being pursued by Mr Mains and his co-offenders that was still unresolved when the original plea offer was repeated on 6 May 2013. Further, as Mander J noted, Mr Mains likely achieved some benefit by negotiating the withdrawal of some charges in exchange for entering guilty pleas to others. Affording a discount that is close to the maximum in such circumstances may well involve some element of double benefit.
In Hessell v R the Supreme Court provided some helpful observations as to how the courts should approach discounts in circumstances where a guilty plea was delayed due to either facts being in dispute or challenges being made to the admissibility of evidence.[15] The Court stated that:
[61] As well, the Court of Appeal’s approach does not allow for a reduction where a plea is entered only after resolution of disputed facts. The Court of Appeal’s expectation is that defendants should plead guilty where their disagreement with the prosecution’s case is not about their guilt of the offence but relates to the prosecutor’s statement of facts. This, it is said, should be left to a subsequent disputed facts hearing. If at that hearing the sentencing judge rejects the defendant’s view of the facts, the appropriateness of giving a reduction for the plea will be reviewed. The last step is less objectionable. If the circumstances indicate that a defendant is not fully prepared to acknowledge guilt at the outset, that must be factored into the sentence. But the requirement that a defendant must always plead guilty before entering the disputed facts process to get the maximum discount is too rigid. The better course is to permit sentencing judges to assess the value of the plea in the particular circumstances, without a rigid requirement for application of a scale of discounts dependent on the exact timing of the plea. The same approach should apply where the defendant has exercised his or her right to challenge the admissibility of evidence.
[15]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607
On this approach, it is our view that Mr Mains’ November 2012 plea proposal is a relevant factor to the overall assessment of the appropriate guilty plea discount in this case. Mr Mains was entitled to challenge the admissibility of evidence and elected to exercise that right. Each case will turn on its own facts, but in this case the admissibility challenges were not so clearly without merit that Mr Mains should have been expected to forego his right to challenge the admissibility of evidence and simply plead guilty at the outset. Further, the somewhat qualified nature of the 2012 and 2013 plea proposals did not prevent the Crown from considering and responding to them, which it apparently chose not to do. Obviously, there was no obligation on the Crown to engage in plea discussions in 2012, 2013 or at any other time. It is possible, however, that if the discussions that took place in 2015 had occurred earlier, a similar result would have been reached, despite the ongoing admissibility issues.
As Ms Wong pointed out, the charges that Mr Mains ultimately entered pleas to did not exactly mirror those in his November 2012 plea proposal (or indeed his subsequent proposals). In terms of the possession charges, Mr Mains ultimately pleaded guilty to two specific charges of possession of cannabis for the purpose of sale (rather than the one charge he had initially proposed). He also pleaded guilty to two charges of selling cannabis, rather than the one representative charge originally proposed. Viewed in the round, however, it is fair to say that (subject to potential admissibility issues) Mr Mains did indicate at an early stage that he was willing to plead to charges of possession and sale of cannabis, but that he was not willing to plead guilty to cultivation of cannabis.
Taking all of these matters into account, we are satisfied that there has been an error in approach to the assessment of the discount for the guilty plea. We substitute a discount of four months (approximately 10 per cent). This takes into account Mr Mains early indication that he was willing to plead to charges of possession and sale of cannabis, but also the benefit he has received by the withdrawal of other charges and the fact that his guilty pleas were not entered at the first available opportunity after the admissibility issues were finally resolved in early July 2015. The result is that the end sentence of three years and six months’ imprisonment was manifestly excessive.
We mention one further matter. Mr Ruane sought clarification of the recommendation by the Court in Hessell v R that a willingness to plead to a lesser offence should not only be communicated in writing to the prosecutor, but also to the court.[16] That issue does not arise in this appeal, as although the offers were not so communicated the Crown took no issue with that. Viewed in context, however, it is clear that the key point made by the Court in Hessell was simply that best practice requires that plea offers be communicated in writing rather than verbally, to avoid later disputes. Providing a copy to the court provides an additional safeguard. Hessell does not, however, make such a course mandatory.
Result
[16]Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298 at [43]. The Supreme Court’s judgment (Hessell v R, above n Error! Bookmark not defined.) does not refer to this aspect of the Court’s decision.
The appeal is allowed. The sentence of three years and six months’ imprisonment on the charge of joint possession of 53 pounds of cannabis for the purpose of sale is quashed and a sentence of three years and three months’ imprisonment substituted. All other sentences are confirmed.
Solicitors:
Berry & Co, Oamaru for Appellant
Crown Law Office, Wellington for Respondent
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