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 cannabis leaf in the sacks in his vehicle.

Appeal against conviction

[6]       The appellant’s first submission, that on the evidence he could not have been guilty of cultivation on or about 31 January 2005, faces two impediments.  The date of the offence is not, in this case, an ingredient of the charge.  The Crown did not need to allege an exact date in the indictment.  Throughout the trial the appellant knew  the Crown case was that he had been involved in cultivating the cannabis over several months prior to 31 January 2005.  The appellant, therefore, could not have suffered any prejudice because the indictment did not give the specific dates during which it was alleged he had cultivated the cannabis.  Counsel for the appellant accepted, before us, that he addressed the jury on the Crown claim that the appellant was involved in the early cultivation of the cannabis plants.  This was accepted to have been many weeks, at least, prior to 31 January 2005.  If the appellant wanted greater specificity in the indictment then the Judge could have been asked to direct the Crown to do so.  The Judge correctly told the jury that the Crown did not have to prove there was a particular cultivation on a particular day.

[7]       Secondly, there was evidence in any event of cultivation by the appellant on or near 31 January.  The detective who found the plants gave evidence that the plants had been freshly pruned and green cannabis plant was found in the appellant’s vehicle.

[8]       We are therefore satisfied that these counts, as drafted, did cover the period  several months prior to the execution of the search warrant and that the jury was entitled to convict the appellant on the evidence of cultivation during this time.  It would have been better practice for the Crown to have specified the approximate dates during which it alleged the appellant was involved in the cultivation but there was no possibility of a miscarriage of justice because of the form adopted.

[9]       As to whether the Judge put the appellant’s defence to the jury, the Judge repeated the appellant’s submission that there was no evidence to link Mr Collings with cultivation, and that Ms Heta had admitted cultivating both sets of plants.  The Judge told the jury of the appellant’s claim that he would not have been cultivating cannabis around the time of his mother’s death some months prior to 31 January 2005. 

[10]     We are satisfied the Judge fairly and squarely put to the jury the defence case: a general denial of cultivation, and a specific denial of cultivation around the time of the appellant’s mother’s death in the latter part of 2004.

[11]     If counsel for the appellant was concerned about any inadequacy in the summing up, he had the opportunity at the end to invite the Judge to more clearly identify the appellant’s defence.  The Judge specifically invited identification of any inadequacy after the jury retired, counsel for the appellant identified none.

[12]     For the reasons given the appeal against conviction is dismissed.

Appeal against sentence

[13]     The appellant, in addition to the two counts of cultivation, was convicted of two counts of possession of cannabis for supply, and one of possession of equipment for the commission of the offence of cultivating cannabis.  As to the supply counts, these involved, in total, possession of some 252.5 grams of cannabis within the house and 1.96 kilograms in the Toyota vehicle.  Taking account of the cannabis from the cultivated plants, the Judge considered that the total value of the cannabis was between $63,000 and $100,000. For sentencing purposes he adopted $80,000.  He concluded, given the amount of cannabis involved, that this offending was at the high end of category 2 of R v Terewi [1999] 3 NZLR 62. He considered there was no basis on the facts to distinguish between the two appellants. He started with a sentence of three and a half years and, as far as this appellant is concerned, concluded there were neither aggravating nor mitigating circumstances which would require any adjustment. A final sentence of three and a half years was imposed.

[14]     Counsel for the appellant says Mr Collings’ involvement was less than Ms  Heta’s and the final sentence should have reflected that.  In our view, the Judge was entitled to conclude that Mr Collings was as involved in the cultivation and possession of cannabis for supply as Ms Heta.  The Crown case was that while Ms Heta began the cultivation, shortly afterwards, Mr Collings became involved.  Almost two kilograms of cannabis material was found in Mr Collings’ truck and other cannabis was found in their house.  The Judge was entitled to conclude there was evidence of Mr Collings having considerable involvement in the cultivation.

[15]     The appellant suggested that his sentence should have been reduced on account of his remorse.  It is difficult to see how remorse would be a factor in this case.  Mr Collings ran his defence on the basis that he was not involved at all in the cultivation of cannabis.  However, after his conviction he told the probation officer that he was involved in the cultivation of the cannabis.  While it may be true that Mr Collings does regret being involved in this offending, that regret hardly entitles him to a reduction in what is otherwise a proper sentence. 

[16]     The appeal against sentence is also dismissed.

Solicitors:
Crown Law Office, Wellington