Mowberry v R

[2012] NZHC 969

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2012-409-27

CRI 2012-009-3006 [2012] NZHC 969

BETWEEN  KARL JOSEPH MOWBERRY Appellant

ANDTHE QUEEN Respondent

Hearing:         9 May 2012

Counsel:         R M Buddicom for Appellant

A Raj for Respondent

Judgment:      9 May 2012

ORAL JUDGMENT OF GENDALL J

[1]      This is an appeal by Karl Joseph Mowberry against a sentence of nine months home detention imposed upon him by District Court Judge A D Garland in the District Court at Christchurch on 22 March 2012.  The appellant had pleaded guilty to one charge of cultivating cannabis.

Background

[2]      The appellant and his partner lived together in Christchurch.   The Police visited their premises on unrelated matters on 12 December 2011.  They there found a number of cannabis plants growing in what could be said to have been a cultivation operation.   In a bedroom there were 20 mature cannabis plants and eight drying stalks of cannabis head, together with electronic timers, a dehumidifier and heat lamps.  Some mature cannabis plants and cultivating apparatus were located in the

bedroom wardrobe together with 2 grams of dried plant material.

MOWBERRY v R HC CHCH CRI 2012-409-27, CRI 2012-009-3006 [9 May 2012]

[3]      Outside the premises a further 23 cannabis plants were located and some other cultivation apparatus.  A total of 57 cannabis plants was seized.  The appellant and his partner admitted they were cultivating it but stated it was for their own use.

[4]      The appellant had no previous convictions for drug offences but had three for theft and one for obstruction.

[5]      Judge Garland when imposing sentence noted the probation officer’s report, and referred to health difficulties of the appellant (he being on an Invalids Benefit) and the fact that he was assessed at a low risk of reoffending.   His counsel had supported the probation officer’s recommendation for community service, although Judge Garland observed that it was accepted by the probation officer that home detention could be an appropriate alternative to imprisonment.

[6]      The Judge then proceeded to consider the extent of the cultivation operation taking place and made some calculations as to the probable value of the yield of cannabis that might be obtained from 57 plants and what, in his opinion, the value might have been.  The Judge drew the inference that it would have been too great for the potential yield to be only for personal use although he noted that the police accepted that the cannabis was intended mainly for personal use.   The Judge said there was an element of commerciality in the cultivation, although clearly accepted that much was for the use of the appellant and his partner.  The Judge in applying the

guidelines in R v Terewi[1] took as a starting point two years’ imprisonment.  That is,

at the bottom end of band 2.  He did not regard that there were aggravating personal circumstances requiring any uplift and allowed a generous discount of 25% for the early guilty plea which led to an indicative sentence of 18 months’ imprisonment. He concluded that a full custodial sentence was not required and a proper sentence was one of home detention of nine months.

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

[7]      In support of the appeal Ms Buddicom has essentially submitted that the Judge erred in concluding that there was some aspect of commerciality in the offending; that this was not a case which was proper to be placed in category 2 in

Terewi and that the Judge’s inferences he drew based upon the number of plants

under cultivation were not open to him.  Ms Buddicom emphasised that the appellant and his partner claimed the cultivation was to provide cannabis for their own use and there was, therefore, two persons to whom the 57 plants might be said to relate. Counsel  has  referred  to  a  number  of  authorities  where  criticisms  have  been expressed at sentencing Judges making assessments or calculations of the value of a crop, or crops, or of cannabis material found on premises of those apprehended.  If there is unjustified speculation then those criticisms would be warranted.  But as the

Court of Appeal in R v Edmonds[2] observed assessment of a commercial purpose may

[2] R v Edmonds CA23/02, 28 May 2002 at [9].

be:

a matter of inference from the circumstances and the unlikelihood that the number of plants were consistent for growing solely for personal use.

[8]      In  that case they went  on to observe as is  well known, that the  Terewi categories  are not  fixed.   They are  for  guidance only in  assessing  comparative culpability.  Whilst category 2 in Terewi provides a range of between two and four years as a starting point, it is not rigidly fixed.  If the commercial element is small a lower starting point might be justified.

[9]      The Judge did not have before him photographs of some of the crop which is now being provided to this Court by counsel for the appellant.   I am not sure it shows the entire operation but it can be described as basic and unsophisticated although of course it is well known that to acquire dehumidifiers, electric timers, heaters, lights and also to obtain and pay for the electricity used in indoor cultivation requires some capital outlay.

[10]     I have concluded that Judge Garland was entitled to draw the inferences that he did from the circumstances but when viewed overall, with the facts that there were  two  offenders  and  that  the  operation  was  very  basic,  the  degree  of commerciality was comparatively speaking very minor.  I think it justified however a starting point 18 months’ imprisonment rather than two years.  A discount of 25% is the maximum usually available in accordance with the Supreme Court decision in

Hessell[3]and I would not differ from the sentencing Judge in this case.  That leads to

an indicative sentence, not of 18 months’ imprisonment but of 13½ months’ imprisonment.  I do not consider it warrants anything less than a sentence of home detention but that term should be adjusted to a term of six months.

[3] Hessell v R [2011] 1 NZLR 607.

[11]     Accordingly the appeal is allowed.  The sentence of home detention of nine months is quashed and in its place a sentence of six months’ home detention is

imposed.

J W Gendall

Solicitors:

Raymond Donnelly & Co, Christchurch for Respondent