Miller v The Queen
[2013] NZCA 197
•31 May 2013 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA670/2012 [2013] NZCA 197 |
| BETWEEN | JANIE MILLER |
| AND | THE QUEEN |
| Hearing: | 1 May 2013 |
Court: | Arnold, Chisholm and Keane JJ |
Counsel: | P H H Tomlinson and A J Beach for Appellant |
Judgment: | 31 May 2013 at 10 am |
JUDGMENT OF THE COURT
A The appeal against sentence is allowed.
BThe order for forfeiture to the Crown of 15 per cent of the sale proceeds of the property at 361 Aka Aka Road, Puni, is quashed and replaced with an order for forfeiture of five per cent of such proceeds.
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REASONS OF THE COURT
(Given by Chisholm J)
Introduction
After Ms Miller pleaded guilty in the District Court to cultivating cannabis and two firearms charges her case was remitted to the High Court for sentencing. This reflected that the Crown had already made application to the High Court for restraining orders in relation to Ms Miller’s property and intended to seek an instrument forfeiture order at sentencing.
On 25 September 2012 Lang J sentenced Ms Miller to nine months’ supervision.[1] He also directed that 15 per cent of the sale proceeds of her property (approximately $75,000) was to be forfeited to the Crown. Ms Miller appeals against the forfeiture order on two primary grounds: the starting point adopted by the Judge was too high; and that in all the circumstances no forfeiture was warranted.
The offending
[1]R v Miller [2012] NZHC 2499.
The police executed a search warrant at 361 Aka Aka Road, Puni, which is the appellant’s property. This is a rural property comprising approximately two acres. It contains a dwelling, two out-sheds, and a large half round barn. At the time of the search the appellant was living at the property with her partner. It has since been sold.
At the far end of the barn there was a purpose built growing room with eight mature cannabis plants, about four feet high, in individual plastic pots. The room was lined with aluminium foil and included high wattage bulbs, power boxes, thermometers, timers and fans.
Behind a false wall in one of the out-sheds was another cannabis growing room with seven cannabis plants standing about two feet high. Again these plants were in individual pots. There were also 16 cloned cannabis plants growing in a container. This room also had a high wattage bulb, power boxes, thermometers, timers and fans.
In the house the police found 14 grams of good quality cannabis head plant material. They also found a double barrel shotgun and two rifles, together with ammunition.
When spoken to by the police Ms Miller said that she had been growing the cannabis for pain relief because she suffered from fibromyalgia (chronic fatigue). She said that she had inherited the firearms and ammunition from her father.
The appellant
At the time of sentencing Ms Miller was 61 years of age (she is now 62) and in receipt of a benefit. She had not previously appeared before the Court. The pre‑sentence report writer reported that the risk of re-offending was low and that having taken medical advice Ms Miller was now on medication. A sentence of community detention and supervision was recommended.
It was accepted by the Crown that Ms Miller suffers from a longstanding medical condition (fibromyalgia) and related medical issues, that the cannabis was being grown by Ms Miller for pain relief, and there was no suggestion of a commercial motive. The Crown also accepted that, apart from the absence of licences, there was nothing sinister in the presence of the firearms and ammunition.
Sentencing in the High Court
Taking the cultivation of cannabis as the lead charge, Lang J accepted that the offending fell within category 1 of R v Terewi.[2] Given the “relative sophistication of the operation and the number of plants” he concluded that the offending was in the middle or towards the upper end of that category.[3]
[2]R v Terewi [1999] 3 NZLR 62 (CA).
[3]At [17].
Lang J then noted that although a number of cases had been cited to him and he had taken the circumstances and starting points of those cases into account:[4]
[18] … [E]ach case stands very much on its own facts and other cases can do little more than provide a guideline regarding the starting point to be applied.
He decided that the appropriate starting point was 16 months’ imprisonment. That starting point is challenged in this appeal.
[4]He specifically mentioned R v Simeon [2012] NZHC 1999 and R v Gatenby CA511/04, 28 April 2005.
An uplift of two months was then applied to reflect the unlawful possession of the firearms and ammunition. The Judge commented that while the presence of firearms can add a sinister note to drug related activity, there was nothing sinister in this case. With that adjustment the starting point became 18 months’ imprisonment. The uplift of two months is also challenged.
No aggravating features were identified. On the mitigating side the Judge accepted that the appellant had “a flawless record” and that she suffered from serious health issues (supported by written material provided at sentencing). After allowing a discount of four months the Judge arrived at 14 months’ imprisonment. He then applied a 25 per cent discount for the guilty plea and arrived at a sentence of 10 months’ imprisonment before taking into account forfeiture.[5]
[5]At [23]–[25].
With reference to forfeiture the Judge noted that the property had been sold in June 2012 for approximately $490,000 and that the instrument forfeiture regime in the Sentencing Act 2002 applied. The matters listed in s 142N(2) of the Act were then considered.
Although the property was held in trust the Judge treated the property as belonging to Ms Miller. There is no issue about that. We now summarise the Judge’s conclusions with reference to the various matters under s 142N that are relevant to this appeal.
Use ordinarily made of the property (para (b))
Lang J accepted that the property had been purchased in 1992, using legitimate means, and that Ms Miller had lived there apart from one stage where she lived away from the property. Ms Miller said that one of the growing rooms was constructed by a tenant when she was living away from the property.
The Judge accepted that although the dwelling had been principally used for residential purposes, it had also been used to store and smoke cannabis. He considered the out-buildings served the dual purpose of their usual rural function and growing cannabis.
Any undue hardship that is reasonably likely to be caused to any person by the operation of such an order (para (c))
Having noted[6] that Ms Miller was 61 years of age, would not be able to work again “in any meaningful way” because of health issues, the proceeds of sale formed the bulk of her assets, the property was legitimately acquired, and there was no commercial profit, the Judge explained:
[43] I accept that a degree of hardship will be inevitable in the event that an order for forfeiture is made. It will be difficult for you to acquire further capital in the years to come. Nevertheless, hardship of this type was undoubtedly both contemplated and intended by Parliament when it passed this legislation.
[44] Your counsel today has made a submission that the courts should never make an order for forfeiture in circumstances where offending has not been commercial in nature. As I advised him during the course of argument, I do not accept that submission. I consider that the legislation is to be applied regardless of the motivation behind the offending. I accept unreservedly, however, that offending in this way for personal use is to be viewed at a much lower level than offending for commercial gain.
[45] I also bear in mind the fact that criminal activity and, in particular, drug-related criminal activity often takes place within the offender’s residence. Moreover, the offender will often have acquired such property using legitimate funds and it may be of considerable value. Parliament must be taken to have known all of those facts. It must therefore also be taken to have intended such property to be ordinarily subject to the instrument forfeiture regime.
Although Lang J accepted that the forfeiture order would inevitably produce hardship for the appellant, he did not accept that it would amount to undue hardship in terms of the legislation. He also kept in mind that hardship could be ameliorated by partial forfeiture.
Any other matters relating to the nature and circumstances of the qualifying instrument qualifying offence or the offender (para (f))
[6]At [41].
The Judge repeated that there was no commercial element and that the cannabis was used solely for pain relief, which he described as “powerful factors”.[7] But, he did not consider that these factors, on their own, were sufficient to justify refusal of forfeiture.
[7]At [49].
On the other hand, the Judge accepted that forfeiture of the entire proceeds of sale would be wholly disproportionate to the nature and gravity of the offending and the appellant’s personal circumstances. He recorded that neither counsel had been able to locate any case in which the forfeiture regime had been used for offending where there was no commercial element. It was the Judge’s view that a proportionate response justified forfeiture of 15 per cent of the funds held under the restraining order, and he ordered accordingly. That order is also challenged in this appeal.
The sentence mentioned at the beginning of this judgment was then imposed.
This appeal
Appellant’s argument
Given that the offending comes within category 1 of Terewi, the quantity of plants was not significant, and there was no commerciality, the appropriate starting point was a non-custodial sentence. The cultivation lacked any hallmarks of a serious growing operation, and routinely offending of this nature would be dealt with in the District Court by a fine, community work and supervision.
As to the uplift of two months for the firearms charges, the firearms had been inherited and one had a bolt missing and was unusable. The usable ones had been used for shooting vermin on the property and Ms Miller’s partner, who had been jointly charged with Ms Miller in relation to the firearms and ammunition, had only been fined. There was accordingly a disparity between the two sentences. No uplift should have been applied.
These errors carried through to the order for forfeiture which was manifestly excessive and should not have been made. Only one small part of the property had been used for illicit purposes. Given her longstanding medical conditions Ms Miller has not worked for seven years and is unlikely to work again. She has no other means of support and no other substantial assets with which to support herself in the long term.
Compared with the value of the property ($490,000) the value of the illicit activity was low (probably between $2400 - $4800), None of the more elaborate or sophisticated types of equipment were present and the degree of sophistication could not outweigh the undisputed fact that Ms Miller grew the cannabis solely for her own use for medical reasons. Generally the cases illustrate that forfeiture orders are only made where there are commercial or profit overtones.
Crown’s response
This operation involved 31 plants which is a very substantial quantity for one person to use. The plants were being grown on a cycle at two locations and the starting point of 16 months’ imprisonment was within range. The uplift of two months for the firearms offences did not give rise to any disparity because the co‑offender did not face any charges concerning the cannabis offending.
Partial instrument forfeiture was also appropriate. Although this was not a particularly sophisticated or large cannabis growing operation, it is apparent from the number of plants, the quantity of dried cannabis, and the deliberate alterations to the barn and shed, that it was a well established operation. Hardship is an intended consequence of the instrument forfeiture regime and the partial forfeiture ameliorated any undue hardship.
Our analysis
The starting point
It is common ground that the cultivation of cannabis in this case comes within category 1 of Terewi:[8]
...growing of a small number of cannabis plants for personal use by the offender without any sale to any other party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence. Where there have been supplies to others on a non‑commercial basis the monetary penalty will be greater and in more serious cases or for persistent offending a term of periodic detention or even a short prison term may be merited.
The other two categories, which attract starting points of imprisonment, involve cultivation for commercial purposes with the objective of deriving profit.
[8]Terewi, above n 2, at [4].
Even if this offending falls in the middle or towards the upper end of category 1, we find it difficult to see how a starting point of imprisonment is consistent with Terewi. While the 31 plants might suggest a heavy usage by Ms Miller, this usage has been explained by her, and accepted by the Crown. There is no suggestion of commerciality and such a suggestion should not be introduced through the back door. With regard to sophistication we endorse Mr Tantrum’s responsible concession that it was not “a particularly sophisticated or large scale growing operation”. And to the extent that Ms Miller came before the Court as a first offender at the age of 61, it could not be said that she was a persistent offender.
When arriving at his starting point Lang J specifically mentioned the decision of the High Court in Simeon and this Court’s decision in Gatenby. Unlike this case, Simeon involved a degree of commerciality which brought it within category 2 of Terewi. There was also a charge of possessing precursor equipment. Consequently we do not consider that the starting point of two years, eight months’ imprisonment in that case offered any guidance on this occasion.
On the other hand, we accept that Gatenby has closer parallels. It involved an appeal to this Court against a sentence of two years and three months’ imprisonment on a single charge of cultivating cannabis involving 64 plants (more than twice the number in this case). Notwithstanding that Mr Gatenby claimed the cultivation was for his own use, he was sentenced in the District Court on the basis that his offending came within category 2 of Terewi, and without a disputed facts hearing under s 24 of the Sentencing Act. To complicate matters Mr Gatenby had served almost five months of his sentence when his appeal to this Court was heard.
Rather than referring the matter back to the District Court for a disputed facts hearing or convening such hearing itself, this Court decided that the only practical course was to determine the appeal as matters stood. While accepting that the outcome was “less than satisfactory”,[9] the Court decided that commerciality had not been established and approached the matter on the basis that the offending came within Terewi category 1, albeit “very much at its upper end”.[10] A starting point of 18 months’ imprisonment was adopted, the appeal was allowed, and a sentence of 15 months’ imprisonment substituted.
[9]R v Gatenby, above n 4, at [21].
[10]At [20].
While we agree with the Judge that other cases generally offer little guidance, we find it difficult to reconcile the starting point of 16 months’ imprisonment in this case with the 18 months in that case. Apart from anything else, the offending in that case was much more extensive and at the top of category 1. Nor do we think the approach in Gatenby justified a departure from the guideline judgment in Terewi on this occasion.
We have not located any other decisions of this Court that might assist. Moreover, our research indicates that only three decisions of the High Court have involved a starting point of imprisonment where the cultivation of cannabis has been for personal use. We are satisfied that each of those cases, which we shall briefly outline, is distinguishable.
In Needhamv New Zealand Police[11] Collins J upheld a sentence of four months’ imprisonment where a starting point of six months’ imprisonment had been utilised. However, a sentence of imprisonment had been recommended by the probation service for this 57 year old man with 20 previous drug related convictions who refused to undertake drug and alcohol counselling.
[11]Needhamv New Zealand Police [2013] NZHC 688.
Potter J adopted a starting point of 15 months’ imprisonment in R v Stuthridge where 71 mature cannabis plants and 30 seedlings were found.[12] She decided that there was an element of unreality in accepting that all the cannabis was grown for Mr Stuthridge’s own use and approached sentencing on the basis that the appropriate starting point was “within the twilight zone” of categories 1 and 2 of Terewi.[13] Mr Stuthridge had 12 previous drug-related convictions and was sentenced to 12 months’ imprisonment.
[12]R v Stuthridge HC Auckland CRI-2007-404-254, 6 November 2007.
[13]At [28].
Finally, R v Syme[14] Asher J adopted a starting point of 23 months’ imprisonment for cultivation involving several hundred cannabis plants and 380 grams of cannabis head. Following a disputed facts hearing the Judge was not satisfied that the cannabis was being grown for commercial purposes. Without adopting any particular category under Terewi, he concluded that the offending was at the very top end of the scale of cultivation of cannabis for a non-commercial purpose. Mr Syme was sentenced to 14 months’ imprisonment with leave to apply for home detention.
[14]R v Syme HC Hamilton CRI-2005-068-637, 31 May 2006.
We are satisfied that the starting point adopted by the Judge was too severe. Having said that, we acknowledge that the focus should be on the end sentence, in particular the forfeiture order. But we recognise that in this case there is likely to have been some flow-on effect from the starting point.
The end sentence
There is, of course, no issue about the sentence of nine months’ supervision. The only issue is whether the instrument forfeiture order was appropriate in all the circumstances.
Although we agree with Lang J that this was an appropriate case for a forfeiture order, we have decided that the level of the order was excessive and that this gave rise to a sentence that was manifestly excessive. In part this reflects that the starting point was too high. However, our principal reason for disagreeing with the Judge is that in our view forfeiture to the Crown of 15 per cent of the sale proceeds was disproportionate to the seriousness of the offending, did not give adequate weight to Ms Miller’s personal circumstances, and failed to produce the least restrictive outcome in terms of s 8(g) of the Sentencing Act.
We agree with Mr Tomlinson that Ms Miller’s culpability, including the extent of the offending, needs to be kept in perspective. As the Crown accepted, the cultivation was not particularly sophisticated or large and there was no suggestion of any commercial element. While the purpose of pain relief cannot justify the cultivation, we note that by the time of sentencing Ms Miller had turned to conventional medication. Moreover, at the age of 61 she had no previous convictions and no real prospect of being able to return to work.
Under those circumstances it appears to us that forfeiture of approximately $75,000 is disproportionate to the seriousness of the offending and the circumstances of the offender. We also keep in mind that an offender should not be punished more severely simply because he or she owns a substantial asset: R v Brazendale[15] and MacPherson v R.[16] As we see it, this will be the case unless the forfeiture is reduced to a much more modest level.
[15]R v Brazendale [2011] NZCA 494, (2011) 25 CRNZ 580 at [39].
[16]Macpherson v R [2012] NZCA 552 at [59] and [60].
While we accept that minds might differ as to the appropriate level of the forfeiture order, we have concluded that five per cent ($25,000) would be consistent with the instrument forfeiture regime and the wider provisions of the Sentencing Act.
Outcome
The appeal against sentence is allowed. The order for forfeiture to the Crown of 15 per cent of the sale proceeds of the property at 361 Aka Aka Road, Puni, is quashed and replaced with an order for forfeiture of five per cent of such proceeds. The supervision sentence stands.
Solicitors:
Crown Law Office, Wellington for Respondent
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