Payne v The Queen
[2016] NZCA 284
•23 June 2016 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA677/2015 [2016] NZCA 284 |
| BETWEEN | DAVID CHRISTOPHER JAMES PAYNE |
| AND | THE QUEEN |
| Hearing: | 30 May 2016 |
Court: | Ellen France P, Clifford and Katz JJ |
Counsel: | F E Guy Kidd for Appellant |
Judgment: | 23 June 2016 at 3 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Katz J)
Mr Payne appeals against the sentence of three years and three months’ imprisonment imposed on him by Mander J for five charges of cultivation of cannabis and one charge of possession of cannabis for the purposes of sale.[1] Mander J adopted a starting point of three years and six months’ imprisonment and allowed a three-month (approximately seven per cent) global discount for personal mitigating factors and the late entry of guilty pleas.
[1]R v Payne [2015] NZHC 2751.
Mr Payne contends that the starting point was too high, creating an unfair disparity between him and his co-offenders Brodie Anderson (Mr Payne’s son) and Brian McCarthy. Mr Payne also submits that the three-month discount does not adequately account for his personal mitigating factors and his guilty pleas.
Background
In 2008 the police commenced an investigation targeting large scale cannabis offending in Western Southland, including Fiordland. The investigation uncovered significant cannabis cultivation and supply operations. Mander J described Mr Payne’s role in the overall cannabis operations as follows:
[2] Over the course of two consecutive growing seasons, between October 2010 and April 2012, you cultivated cannabis at two geographical locations described as “Rarakau” and “Mt Misery”. These were relatively sophisticated outdoor cannabis plots of similar design and construction. You cultivated these plots with the assistance of Mr Brian McCarthy, who has been sentenced both in respect of the cultivations at these sites and at other plots in respect of which you were not involved.
[3] You were also responsible for the cultivation of cannabis over the course of the 2011/2012 growing season in an isolated area described in the evidence as “Hump Burn”. This plot was cultivated by you, together with your adult son, Mr Brodie Anderson who has also been dealt with in relation to his involvement in this cannabis growing operation. The possession for supply charge relates to some three pounds of cannabis located at Mr Anderson’s house in Pukerau which was harvested from the Hump Burn plot.
[4] As a result of a disputed facts hearing, I made determinations regarding the yield and revenue from these various plantations.[2] The success of each cultivation varied. In total, some 94 plants were harvested with a yield estimated between 26 to 34 pounds from the five plots with an approximate revenue over the two years from that yield, of between $76,000 to $99,000.
Was the starting point adopted too high?
[2]R v Payne [2015] NZHC 2629.
Mander J adopted a starting point of three years and six months’ imprisonment. The key issue before his Honour was where the offending fell in terms of the categories for commercial cannabis offending set out in the guideline judgment of R v Terewi.[3] The relevant categories were:
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.
[3]R v Terewi [1999] 3 NZLR 62 (CA) at [4].
Mander J concluded that no single factor was dispositive of where the offending should be placed in terms of the Terewi categories. It was material, however, that Mr Payne was fully committed to the cultivation and harvest of significant amounts of cannabis for commercial gain. In pursuit of that goal he cultivated cannabis at different plots over the course of two growing seasons, expanding to a third plantation in the 2011/2012 season. The Judge described this as a “persistent commercial enterprise”. He noted that while Mr Payne’s actual yields may not have been as high as intended (one of the plots failed), he was at no point discouraged in his endeavours. Estimated yields were approximated as being as much as $99,000. The Judge said that:[4]
You demonstrated a high level of commitment to your ongoing enterprise, by cultivating in these remote locations, making extensive efforts to bring equipment to those plots, and concealing your identity and seeking to avoid detection.
[4]At [12].
Taking all of these factors into account, the Judge found that the offending fell between the upper end of Terewi category 2 and the lower end of category 3. He also took into account the sentences imposed on co-offenders, including Messrs McCarthy, Anderson and Grant.
Ms Guy Kidd, in support of Mr Payne’s appeal, submitted that:
(a)The number of plants cannot be seen as “large-scale commercial growing” and there was no “considerable degree of sophistication” as there was no water or irrigation set up to the plots, no booby traps, no camouflage netting, no glass house structure and nor were enhanced growing methods utilised such as the use of clones or double cropping.
(b)The total value which Mr Payne anticipated to derive (between $76,000 and $99,200) was well shy of the equivalent of $100,000 in 1999 (to bring it within category 3). There was no evidence of wealth accumulation by Mr Payne.
(c)Mr McCarthy constructed the plots, so Mr Payne’s offending cannot be taken as sophisticated.
(d)There is a disparity between the starting point imposed on Mr Payne and that imposed on Messrs Anderson and McCarthy.
Taking all of these factors into account, Ms Guy Kidd submitted that a starting point of no more than three years’ imprisonment is appropriate.
This Court in Terewi noted that the borderline between each class of offending may in some cases be indistinct and incapable of exact demarcation,[5] and that the division between the categories is merely a means to give a guide to penalty in relation to a particular position on the scale of offending.[6] In our view, however, the Judge correctly identified Mr Payne’s offending as being between the upper end of category 2 and the lower end of category 3. The offending was not “small-scale” cultivation. It involved offending over two growing seasons at different remote locations. Its potential yield, viewed conservatively, was up to $99,000. While this is some distance away from $100,000 at 1999 values, the Court in Terewi placed that kind of offending “clearly within category 3”.[7] The starting point adopted in this case was high category 2, rather than category 3. This appropriately reflects the significant potential yield. The fact that Mr Payne may not have actually achieved the anticipated financial gain is not determinative. His intention and expectation was clearly that the yield was going to be very significant.
[5]R v Terewi, above n 3, at [5].
[6]At [11].
[7]At [11].
The operation was commercial, organised and at least somewhat sophisticated. It produced significant quantities of cannabis. It could have produced even more. The operation involved cultivation in remote locations, using electric fencing and netting. The offending was highly planned and premeditated. Mr Payne also used disguises. Although, as Ms Guy Kidd pointed out, the offending could have been even more sophisticated, the absence of the particular characteristics she mentioned does not, in our view, make the offending unsophisticated or rudimentary.
We reject the submission that Mr Payne cannot be considered responsible for the sophistication of the plots because Mr McCarthy said he constructed them. Mr Payne directly benefited from and took part in organised commercial cultivation, exploiting for his own gain the levels of sophistication involved in the design and construction of the plots. Whether or not he personally designed or constructed them is beside the point. We also note that he also cultivated his own plot with his son, Mr Anderson.
In our view the starting point adopted was not disproportionate to that adopted for Mr Payne’s co-offenders. Mr Anderson, Mr Payne’s son, was sentenced, amongst other things, for harvesting 64 plants at two separate sites and with Mr Payne at the Hump Burn Stream plot.[8] A starting point of two years and three months’ imprisonment was adopted for this offending.[9] Mr Anderson was sentenced, however, on the basis that he was merely a “foot soldier”. Mr Payne played a more key role in the operation and was involved in significantly more cultivation. A starting point well above that given to Mr Anderson was justified.
[8]R v Anderson [2013] NZHC 3079.
[9]That starting point was uplifted for nine months for totality, to reflect Mr Anderson’s involvement in the sale of cannabis.
Nor are there any parity issues with the starting point of six years’ imprisonment adopted for Mr McCarthy.[10] Such a starting point is in the middle of Terewi category 3, reflecting his significantly more extensive offending.
[10]R v McCarthy [2013] NZHC 3078.
We are satisfied that the starting point taken by the Judge was well within the available range.
Was the discount provided for mitigating factors inadequate?
In terms of mitigating factors, the Judge noted that Mr Payne had emphasised his personal background, including a difficult upbringing and the fact that he had suffered from depressive illness since he was a teenager. His Honour noted that, perhaps sadly, there is nothing in Mr Payne’s family or personal background which is remarkable in terms of offenders who present for sentence before criminal courts. To his credit, however, Mr Payne obtained qualifications and became a chartered accountant. The Judge then observed that:[11]
[23] Insofar as your mental health is concerned, this was not related in any way to your offending, nor has it been suggested that it was. I acknowledge the submission made on your behalf that the courts have recognised that an individual’s physical and mental health which may cause an offender particular difficulty in serving a prison sentence can be taken into account. However, there is nothing to suggest that your depressive symptoms cannot be managed within the prison environment.
[24] Personal circumstances in relation to commercial cultivation do not carry significant weight. The emphasis is on deterrence, both personal and general. When regard is had to the lengths to which the Police were required to commit resources and time to detect and investigate this ongoing cultivation activity of which you were a part, conducted as it was in isolated wilderness areas, the reason for that need for deterrence is readily apparent. Deterrence is a paramount consideration in sentencing in respect of sustained commercial cultivation enterprises of the type in which you were engaged.
(footnotes omitted)
[11] R v Payne, above n 1.
Ultimately the Judge gave a three-month total discount for all matters raised in mitigation, including Mr Payne’s guilty pleas. He said:
[28] Having reviewed the various matters that have been put before me in mitigation, including your otherwise constructive past, prior to your involvement in cannabis cultivation in 2010, I am prepared to extend a three month deduction from the starting point of three years, six months’ imprisonment. I appreciate that I have not strictly followed the Taueki approach to the final stage of the sentence calculation exercise.[12] Had I done so, however, I would not have applied any discount for your guilty pleas.
[29] Similarly, the other mitigating factors by themselves would not ordinarily in this context attract a discrete credit. On a cumulative basis, however, including the very belated entry of pleas, I am prepared to provide this three month credit for all matters raised in mitigation.
[12]R v Taueki [2005] 3 NZLR 372 (CA).
This resulted in a total discount for mitigating factors and guilty pleas of just over seven per cent. Ms Guy Kidd submits that this was inadequate, particularly in light of Mr Payne’s experiences in prison post-sentencing, his previous good character, and his guilty pleas.
Discount for mental health
Ms Guy Kidd referred to evidence from Mr Payne and others that indicates that he has struggled in the prison environment. His medication has been increased and he has received psychiatric and counselling support, albeit not to the extent that Mr Payne feels is necessary.
Ms Wong, for the Crown, submitted that there is no scope for further credit for Mr Payne’s ability to cope with prison because of his mental health issues. We accept that submission. Although a discount may be available where a particular medical or psychiatric condition results in a prison sentence being disproportionately severe, that is not the case here. A sentence reduction will not usually be provided where an offender’s condition can be adequately managed and treated in prison.[13] Depression falls into that category and, as noted above, Mr Payne has received both psychiatric and counselling support while incarcerated.
[13]T (CA702/2012) v R [2013] NZCA 505.
It is perhaps not surprising that Mr Payne is struggling to some extent with the prison environment. This is presumably a fairly common experience, particularly for first time prisoners. We note, however, that there are indications in the medical evidence that Mr Payne may well be suffering from an “adjustment disorder” rather than a relapse of his depressive illness. This suggests that Mr Payne’s symptoms may subside as he gets used to the prison environment. This view appears to be reinforced by Mr Payne’s most recent affidavit, where he deposes that “I am better now and my mood is more stable but it took many months to get assistance and it was a crushing experience”.
Previous good character
Ms Guy Kidd submitted that a more significant discount for Mr Payne’s previous good character and significant fall from grace should have been allowed. Mr Payne has now been expelled from the New Zealand Institute of Chartered Accountants. He is said to have suffered under the spotlight of additional publicity due to the fact that he was an accountant in a small centre, Invercargill. Ms Guy Kidd submitted that this is punishment in itself.
Relatively little weight is generally attached to previous good character in cannabis cultivation cases. As Mander J observed, deterrence is the primary factor.[14] A prior good character discount is also problematic where the offending occurs over a prolonged period, in this case around 18 months.[15] This was not a momentary lapse of judgment by a person of otherwise good character. This was prolonged offending, motivated entirely by monetary gain. Little more than a nominal discount, incorporated into the global three-month discount afforded by the Judge, was appropriate.
Guilty pleas
[14]R v Terewi, above n 3, at [13]; and see R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612.
[15]Tonga v R [2011] NZCA 257 at [24]; Allison v R [2013] NZCA 244; Hamilton v R [2015] NZCA 28 at [28].
With respect to guilty pleas, Mander J said:
[25] Your counsel has also submitted that some credit should be extended for your guilty pleas. While the Crown has acknowledged that some small credit may be offered to you, as a matter of principle that is in my view somewhat unrealistic. You entered your guilty pleas on the morning of your scheduled trial with notice only having been provided less than 24 hours prior.
[26] Mrs Guy Kidd has sought to place some emphasis on the on-going nature of plea negotiations with the Crown. However, having regard to the years that this proceeding has been on foot, the pleas were simply entered far too late to attract any substantive credit. Three weeks trial time was lost to the Court, the Crown’s case comprised professional Police witnesses, in contrast to civilian witnesses or complainants, in respect of whom the avoidance of a trial removes stress from such persons, is not apparent in your case. The evidence against you was very strong. Only after exhausting all avenues of challenge to the Crown case were the pleas entered. This is without taking into account the disputed facts hearing in respect of which I substantially found against you.
[27] Your counsel has also referred to criminal proceeds recovery action being taken by the Commissioner of Police in respect of a property jointly owned by you and your father. It is apparent that your father is seeking relief from forfeiture and that the Commissioner’s application for forfeiture is presently in something of a state of flux. You have instructed your counsel that you have agreed to forfeiture of your share in the equity in the property. However, it is not clear what that may amount to, having regard to your father’s application for relief which may potentially account for almost all the equity in the property.
Ms Guy Kidd submitted that the procedural history of the proceedings against Mr Payne should be taken into account when assessing the appropriate guilty plea discount. In particular, she noted that the original indictment contained 17 charges and the original summary of facts attributed 496 plants to Mr Payne, with a street value of $748,000. Mr Payne then applied under s 347 of the Crimes Act 1961 for discharge in relation to eight charges. Four of those charges were discharged.
Ms Guy Kidd also noted that Mr Payne was unrepresented from the time that the Court of Appeal issued its decision on 7 July 2015 (on issues relating to the admissibility of evidence originating from search warrants)[16] until the outset of trial on 28 September 2015, when he was arraigned and entered guilty pleas. She advised that Mr Payne had apparently attempted to negotiate with the Crown to resolve matters but this was difficult as he was self-represented. The Crown continued to ask him to consider an amended summary which still attributed 469 plants to him and he was unwilling to agree to that.
[16]Dickson v R [2015] NZCA 286.
Ms Guy Kidd advised that by 14 September 2015 a broad agreement had been reached that Mr Payne would enter guilty pleas to six charges, subject to a “summary of facts being agreed as to amounts”. This could not be agreed. On that date the Crown filed an amended indictment against Mr Payne, including 12 charges. Ultimately, at the outset of trial, Mr Payne pleaded guilty to six charges and the Crown offered no evidence on the other six. Ms Guy Kidd submitted that, based on this summary of events, Mr Payne had indicated a willingness to plead guilty two weeks before the pleas were actually entered. Ms Guy Kidd acknowledged that the Crown case was strong, but submitted that a discount was nevertheless appropriate in all the circumstances.
In our view the appropriate guilty plea discount in all the circumstances of this case is very much at the lower end of the scale. The original indictment did involve significantly more charges and a higher scale of offending than the charges that Mr Payne eventually pleaded guilty to. Unlike his co-offender Mr Mains, however, Mr Payne never indicated at any time prior to July or August 2015 that he would be willing to plead guilty to certain charges (possibly subject to the resolution of admissibility issues) if others were abandoned. On the contrary, the sequence of events outlined by Mander J suggests Mr Payne was reluctant to accept responsibility for his involvement in very significant cannabis offending until the eleventh hour. There is also force in the Crown submission that some caution needs to be taken in allowing further benefit for guilty pleas where arrangements have been reached about charges faced and facts admitted, due to the risk of a “double benefit”.[17]
[17]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62].
It is also relevant that, even after entering guilty pleas, Mr Payne sought a disputed facts hearing. As a result a hearing still had to take place and witnesses had to be called, even though the hearing was narrower in scope than a trial would have been. While Mr Payne was, of course, entitled to seek a disputed facts hearing, it is relevant that Mander J largely found against him. This significantly diminished any recognition that may otherwise have been available in respect of his belated willingness to accept responsibility for his actions.[18] Finally, it is relevant that the Crown case appears to have been a fairly strong one.
[18]Nathan v R [2011] NZCA 284 at [28]–[29].
Viewed on a standalone basis, a small guilty plea discount could have been justified. Mander J, however, approached the matter by affording a global discount of three months (about seven per cent) for personal mitigating factors and the late entry of guilty pleas. For the reasons we have outlined above it is our view that any discount available for personal mitigating factors was negligible. The mitigating factors were weak. Viewed in the round, the global discount of three months afforded for both personal mitigating factors and the late entry of guilty pleas was within the available range.
Result
The appeal is dismissed.
Solicitors:
AWS Legal, Invercargill for Appellant
Crown Law Office, Wellington for Respondent
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