R v Collings - [2008] NZCA 30

IN THE COURT OF APPEAL OF NEW ZEALAND
CA571/07
[2008] NZCA 30
THE QUEEN
v
KENNETH ALBERT COLLINGS
Hearing:19 February 2008

Court:Robertson, Randerson and Ronald Young JJ
Counsel:A G Speed for Appellant

M F Laracy for Crown

Judgment:26 February 2008 at 3 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.
REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
[1]       The appellant was convicted, amongst other offences under the Misuse of Drugs Act 1975, of cultivating cannabis plants found, in a swamp and behind a water tank on the property he resided at in Takahue, Northland. Both counts allege the cultivation occurred on or about 31 January 2005. He and his co-accused, Ms Heta, lived together and were in a relationship.
[2]       The appeal against conviction arises from the specification in the indictment that cultivation occurred on or about 31 January 2005. The appellant has two grounds of appeal: whether the evidence established the commission of an offence on or about 31 January 2005, and the Judge failed to put his “defence” to the jury. He also appeals against his sentence on the grounds it is manifestly excessive.
Background facts
[3]       On 31 January 2005 the police executed a search warrant on the property occupied by the appellant and Ms Heta. They found cannabis plant material in the house and two Kleensacks of cannabis plant material (weighing, in total, almost two kilograms) in the appellant’s vehicle. At the rear of the house was a water tank where two cannabis plants were found and a shed, which had been used to cultivate cannabis indoors. Leading from the house was a track which led to a swamp where 42 cannabis plants were found in individual polythene bags.
[4]       The evidence from the Crown was that these plants were probably clones, initially grown in the shed until they were approximately one foot high. The Crown case was that these plants would then have been bagged and planted in the swamp and behind the water tank. The plants in the swamp would not have required watering given they had a ready source. The Detective who seized the plants said the plants had been pruned to increase bud growth shortly before they were discovered on 31 January.
[5]       The Crown contended that the initial cultivation was undertaken solely by Ms Heta but that shortly after Mr Collings arrived to live on the property and was thereafter involved in cultivation through to 31 January. It said the jury could infer the appellant would have undertaken some of the heavy work such as taking the potted plants from the shed to the swamp. The Crown said an empty potash bag (a plant fertiliser) found in the appellant’s vehicle and potash found in the plastic bags with the cannabis in the swamp also illustrated the appellant’s involvement. The Crown submitted it was also open to the jury to infer that the appellant had pruned the plants given the presence of fresh green…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Collings

Details

AGLC: R v Collings [2008] NZCA 30
Case: [2008] NZCA 30
Decision Date: 26 February 2008

CaseChat Overview and Summary

In the case of R v Collings, the appellant, Kenneth Albert Collings, was convicted of cultivating cannabis plants found on his property in Takahue, Northland, among other drug-related offences. The appeal against both his conviction and sentence was dismissed by the Court of Appeal of New Zealand. The appellant contested the conviction on two grounds: whether the evidence proved the offence occurred on or about 31 January 2005, and whether the trial judge failed to properly address his defence to the jury. Additionally, he appealed against the severity of his sentence, arguing it was manifestly excessive.

The court first addressed the appeal against conviction, noting that the date of the offence was not a necessary element of the charge, and the appellant was aware throughout the trial that the Crown's case involved his participation in cannabis cultivation over several months before 31 January 2005. The court found there was sufficient evidence to support a conviction for cultivation around the date specified, as indicated by the detective's testimony regarding the pruning of the plants and the presence of green cannabis in the appellant's vehicle. The court concluded that the indictment, although not specifying exact dates, sufficiently covered the period in question, and the judge adequately presented the appellant's defence to the jury.

Regarding the appeal against sentence, the court considered the appellant's involvement in the cultivation and possession of cannabis for supply, finding that the judge was justified in equating the appellant's level of involvement with that of his co-accused, Ms Heta. The appellant's remorse, expressed post-conviction, did not warrant a reduction in his sentence, as his defence during the trial had been a complete denial of involvement. The court dismissed the appeal against sentence, affirming the original three and a half years imposed by the trial judge.

Orders