Paikea v The Queen

[2004] NZCA 233

IN THE COURT OF APPEAL OF NEW ZEALAND

CA116/04

THE QUEEN

v

SELWYN JAMES PAIKEA

Hearing:15 September 2004

Coram:Glazebrook J
Hammond J
William Young J

Appearances:  G Boot for Appellant

B M Stanaway for Crown

Judgment:21 September 2004 

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

Introduction

[1]       The appellant was convicted by a jury in the District Court at Whangarei on two counts of offering to sell cannabis, one count of cultivation of cannabis and a further count of possession of cannabis for sale.  He was sentenced to five years imprisonment on all counts.

[2]       He originally appealed against both conviction and sentence.  The conviction appeal was not persisted with and is therefore dismissed.  This leaves in the ring the appeal against sentence.

The facts

[3]       In June 2003 the appellant’s home was searched by the police.  They found two hydroponic systems in operation.  In one, 19 cannabis plants, approximately one month old, were being grown.  They had been cloned from a mother plant of the skunk variety.  In the other, ten plants were being grown, nine of which had been cloned from a mother plant.  In a cupboard they found 12 cannabis plants, one of which was a mother plant with the other 11 having been cloned from it.  The police also found a total of 220 grams of dried cannabis head material and 702 grams in total of leaf and lateral stems.  Some other leaf material was found soaking in isopropyl alcohol.

[4]       The cultivation count related to the cannabis plants which were found growing.  The possession for sale count related to the cannabis plant material and the offering to supply counts to two earlier incidents in which undercover officers had sought (unsuccessfully as it turned out) to acquire cannabis from the appellant.  It is clear that the appellant had involved his 18 year old son in his cannabis dealing operation.

[5]       The Judge had before him an affidavit from a detective as to the likely yield of the appellant’s operation on an annual basis. This was assessed as being in the order of $230,000 (on a conservative basis and assuming five growing cycles).

The appellant’s background

[6]       The appellant is now 47.  He has a reasonably significant list of previous convictions.  Of primary relevance in this context are convictions in 2001 for the sale and possession for sale of cannabis.  At that time he was sentenced to 18 months imprisonment.  The affidavit of the detective referred to in para [5] could be taken as suggesting that the offending (or at least the cannabis sales relied on) involved the sale of two tinnies to an undercover police officer.  Conceivably, there was more to the offending than that. 

[7]       The appellant did not speak (at least in any detail) to the pre-sentence report writer.  This seems to have been associated with his dissatisfaction about being declined an adjournment of his trial.  From the point when an adjournment was refused, he had declined to engage with the process and had sat his trial out in the cells of the Court.  From the limited pre-sentence report which was prepared, it appears that the appellant has had a long-standing association with the Black Power gang.  On the other hand, he is able hold down employment and has demonstrated the ability (particularly between 1987-1995) to live in a crime free way.

The Judge’s sentencing remarks

[8]       In his sentencing remarks the Judge referred to offending associated with what was found in the police search in this way:

[2]       The facts of this matter were fully canvassed before a Jury, upon which verdicts of guilty were given on all four charges.  The Police, executing a warrant on your property at Whangarei, uncovered a large sophisticated growing operation and paraphernalia used in the sale of cannabis.  Undercover Police Officers in contact with you were offered cannabis to purchase.  The growing operation discovered was a hydroponic operation.  A substantial number of plants were located in varying stages of growth.  In addition, a total weight of 922 grams of dried cannabis heads were located.

We interpose here that the Judge made a mistake in his assessment of the amount of cannabis head material.  The 922 grams figure was the total amount of cannabis found of which only 220 grams was head material.

[9]       Having referred to the appellant’s background, the Judge then went on:

[6]       In submissions for the Crown, the aggravating features specified, with which I agree, are the scale of the operation, the sophistication of the cultivation and use of cloning, and the street value of the cannabis located.  In that respect I have evidence of the total value given on a conservative basis for the cannabis which was seized and an estimation of potential yearly earnings if you operated the cultivation and sale scheme which was uncovered.  Next is the amount of cannabis located and the paraphernalia of sale, including the packages.  There is your planning and pre-meditation, and obviously your previous convictions for similar offending in 1998 and 2001.

[7]       I agree with the submission that there is nothing that can be said in mitigation.  You are in denial and you show no remorse or insight.  The principles that I am to adopt in sentencing under s 7 and s 8 of the Sentencing Act are set out in the Crown’s submissions.  You must be held accountable for the harm to the community.  Growers, manufacturers and dealers are the scourge of society.  They are the real evil-doers in the drug world.  You are one of them.

[8]       I must promote in you some sense of responsibility when I impose sentence.  It must denounce your behaviour, and provide deterrence to you and others.  I must take account of the gravity of the offending and impose a sentence which is in keeping with the general desirability of consistency and appropriateness as between offenders.  I am referred to the tariff setting case of R v Terewi.  Your offending, in my view, is on the borderline between categories 2 and 3, although I regard it as at the higher end of the scale so far as category 2 is concerned.

[9]       In view of the nature of the offending and the criminality involved, I have decided to adopt a starting point of four years imprisonment.  You pleaded not guilty and proceeded with a trial before a Jury, although in the end you refused to participate.  There are no mitigating factors which would entitle me to consider a reduction from the starting point of four years.  There are substantial aggravating features which entitle me to impose a sentence beyond four years imprisonment.  Your offending was blatant.  The menace you pose to society is great.  Your criminality in totality terms is high.  In view of the aggravating features which I have mentioned, I consider that I am entitled to increase the starting point by a further 12 months and that that is the appropriate sentence in this case.

[10]     Accordingly, you are convicted.  You are sentenced to imprisonment for five years.

[10]     On the way in which the sentencing remarks read, the appellant was sentenced to five years imprisonment in relation to each of the counts.

The argument for the appellant

[11]     In his submissions on behalf of the appellant Mr Boot noted the mistake made by the Judge as to the amount of dried cannabis head material which was found.  He disputed the Judge’s assessment of the scale of the operation and noted that money and the other indicia of large scale dealing had not been located. He challenged the Judge’s conclusion that the case was properly categorised as being at the top end of category 2 of the categories described in R v Terewi [1999] 3 NZLR 52. So he claimed that the starting point of four years was too high.

[12]     Mr Boot also said that there was no justification for the additional year added for the “aggravating features” most of which were simply part and parcel of the assessment of the appellant’s culpability which had resulted in the starting point identified by the Judge.

The argument for the Crown

[13]     Mr Stanaway for the Crown contended that the sentence was not excessive albeit that it was at the upper end of what was acceptable.

Discussion

[14]     In a case where a Judge is sentencing for a number of offences arising out of the same course of conduct, the usual (and we think appropriate) course is for the Judge to pick the most serious of the offences and impose in relation to that offence a lead (or head) sentence reflecting the overall culpability of the offender and then to impose concurrent sentences which are appropriate for the offender’s culpability in relation to the other offences.  The offence which warranted the imposition of a lead sentence was plainly the cultivation of cannabis charge.  It is perfectly clear that the offering to sell counts did not warrant the imposition of a lengthy term of imprisonment and that the possession of cannabis for sale charge was not as serious in terms of culpability as the cultivation charge.  So it was not appropriate to impose on all the charges, terms of five years imprisonment.

[15]     There will obviously be some cases where the sentencing approach which we regard as appropriate will not be practicable, particularly where the maximum sentences available for individual offences are inadequate to reflect the totality of the offending as a whole.

[16]     One of the problems with cases of this sort is the extent to which it is right to sentence on the basis of anticipated annual output.

[17]     Given the increasing sophistication of indoor cannabis cultivation, there is little point in trying to compare the significance of such operations with those which occupied the Court prior to say the mid‑1990’s.  This point was discussed in the judgment of this Court in Terewi:

[5]       … We have avoided specifying numbers of plants for each category [as was done in R v Dutch[1981] 1 NZLR 304 (CA)] because we consider the numbers given there (“scores or hundreds” for category 2 and “1000 plants or more” for category 3) although relevant are no longer themselves an adequate guide where intensive cultivation methods are being employed with a view to enhancing the yield of usable cannabis – either by increasing the number of crops beyond what would occur naturally or by producing plants with higher narcotic levels. For example, by means of indoor growing systems the growth and harvesting of plants can be speeded up, reducing the cycle from four to six months to 40 to 45 days. And in the hydroponic method, plants not only mature earlier but also contain significantly increased levels of tetrahydrocannabinol.

[6]       It will be helpful to sentencing Judges if prosecutors bring evidence of the likely amounts of annual gross revenues, or turnover, obtained by the offender from a cannabis growing operation or which the offender must have anticipated deriving from the activity. That will reflect crop cycles and yields and will be a better measure of the size of an operation than simple reference to the number of plants which have been found. The sentence should also take into account the period over which the offending has continued.

[18]     This sort of evidence referred to in Terewi and available in this case is valuable and it does indicate, at least in general terms, the significance of the operation.  This is particularly so as it is usually easy enough to infer that a hydroponic set-up was not intended to be used for a single growing cycle; this given the level of infrastructure and associated cost required to establish such an operation.  On the other hand, there are substantial uncertainties associated with forecasting annual production and revenue.  Further, it can hardly be right to sentence an offender for not only what he or she has done but on the assumption that he or she will commit further offences in the future.  It is obviously easier, in terms of sentencing principles, to sentence on the basis of annual output where there is evidence showing that the cycle which is the primary subject of the charge of cultivation was not the first.  

[19]     This issue may require further consideration in the future.  In the meantime we think it best to deal with cases such as the present on a pragmatic basis.  The experience of the members of this Court is that cannabis growing operations involving around 40 hydroponically grown plants are reasonably common and would be regarded by most Judges as fitting within but towards the top end of category two.

[20]     The Judge’s assessment of the appellant’s culpability effectively on the borderline between categories two and three was open to him but his fixing of a starting point of four years may very well have been affected by his error as to the amount of head material found (which was only a quarter of what he thought).

[21]     In the circumstances of the case as a whole, and allowing for any sense of unfairness which the appellant might have associated with the mistake as to the amount of head material, we see a starting point of three and a half years imprisonment as appropriate.

[22]     As the Judge noted, there are no mitigating factors.

[23]     It will be recalled that the Judge added one year’s imprisonment for the aggravating features which he mentioned.  But with the exception of the appellant’s previous convictions, the features of the case which the Judge identified as aggravating were really part and parcel of the mix of factors which were relevant to the fixing of the starting point.  Further, the previous convictions were associated with the sale of two tinnies and, although relevant to the appellant’s offending, they were not, in themselves, indicative of repeated defiance of the law associated with the cultivation of cannabis.

[24]     In light of the factors which we have mentioned, we think that the addition of a year to the appropriate starting point was excessive.  We see six months as more appropriate.

[25]     This exercise produces what we would regard as an appropriate sentence of four years imprisonment.  This is appreciably different from the sentence of five years imposed by the Judge; this to an extent which is sufficient to warrant interference. 

Result

[26]     Accordingly, the appeal against sentence is allowed.  We reduce the sentence that is imposed on the charges of cultivation of cannabis and possession of cannabis for sale to four years imprisonment.  We reduce the sentences imposed on the count of possession of cannabis for sale to three years imprisonment and on the offering to sell counts to imprisonment for one year.  All sentences are concurrent.

Solicitors:
Gavin Boot Law, Hamilton for Appellant
Crown Law Office, Wellington