R v Duncan

[2009] NZCA 18

IN THE COURT OF APPEAL OF NEW ZEALAND

CA709/2008
CA9/2009
[2009] NZCA 18

THE QUEEN

v

RUSSELL WAYNE DUNCAN

Hearing:12 February 2009

Court:Robertson, Hugh Williams and Miller JJ

Counsel:T Sutcliffe for the Appellant

N P Chisnall for Crown

Judgment:18 February 2009 at 11.30 am

JUDGMENT OF THE COURT

Both appeals are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Introduction

[1]       Mr Duncan was sentenced after trial in the District Court at Hamilton to three years and three months imprisonment on one charge of possession of cannabis for sale: DC HAM CRI 2008-068-000075 12 August 2008.  He was acquitted on a charge of supplying cannabis.  Judge Burnett subsequently ordered forfeiture of $10,500 in cash that he had been carrying in his van with the cannabis.  He appeals, against both the sentence as being manifestly excessive and against forfeiture on the basis that no grounds were made out.

Factual summary

[2]       Mr Duncan’s van was stopped shortly after midnight on 19 June 2007 at Taumarunui.  A strong smell of cannabis led to a search, in which a variety of drug-related items were found.  They included 2.77 pounds (1.26 kilograms) of cannabis and the cash, which was found, in bundles of $100, $50, and $20 notes in a cooler-bag on the back seat.  The estimate of the value of the cannabis was between $13,850 and, if sold at retail by way of “tinnies”, up to $21,000.  Mr Duncan was visiting relatives in the Waikato at the time.

Litigation in the District Court

[3]       Mr Duncan lives in Alexandra, where he pleaded guilty in May 2008 to various charges relating to items found during the search.  There were two charges of possession of utensils for methamphetamine, one each of possession of cannabis material, cannabis oil and cannabis resin, one of possession of ecstasy, one of possession of cannabis resin and another of possession of utensils for cannabis.  He further pleaded guilty to possession of cannabis found at his home on a subsequent search.  He was sentenced to one year’s supervision with special conditions and ordered to perform 200 hours community work.

[4]       The Judge had before her a pre-sentence report indicating a number of unsatisfactory aspects about Mr Duncan.  He was aged 41 at the time, had a long history of offending since 1972, including seven previous convictions for cannabis offending, and had no intention of abstaining from cannabis use.  However, he had agreed to attend an assessment and the probation officer noted that he has a strong work ethic and is committed to the care of his children and his seriously-ill father in law.

[5]       It was not in dispute that the offending fell within category two of R v Terewi [1999] 3 NZLR 62. The Judge did not accept a submission that because some of the cannabis was said to be for Mr Duncan’s own use a starting point at the lower end of that category should be adopted. She regarded his culpability as somewhat high. After referring to R v Scott CA170/05 9 November 2005, she adopted a starting point of three years imprisonment.  She referred to the strong need for denunciation and deterrence and protection of the community, the quantity of cannabis, and the background of possession of a variety of drugs.

[6]       Because part of the sentence of supervision and community work had yet to be served, the Judge cancelled that sentence and increased the starting point by three months, taking into account that part of the sentence that had been served.  Notably, the Judge did not increase the sentence to reflect his previous convictions.  There were no mitigating factors.

[7]       The application for forfeiture was brought under s 32(3) of the Misuse of Drugs Act 1975, which provides:

32       Forfeiture

(3) If, on the conviction of any person for an offence against section 6 of this Act, the Judge or District Court Judge is satisfied that money found in the possession of that person was received by that person in the course of or consequent upon the commission of that offence, or was in the possession of that person for the purpose of facilitating the commission of an offence against that section, the Judge or District Court Judge may, in addition to any other penalty imposed pursuant to this Act, order that that money be forfeited to the Crown.

[8]       The application was argued before Judge Burnett on 10 October and 3 November 2008.  Counsel relied on the trial record, which included the evidence of Mr Duncan.  In a reserved judgment, the Judge concluded on the balance of probabilities that Mr Duncan had the $10,500 in cash in his possession for the purpose of facilitating the commission of an offence against s 6 of the Misuse of Drugs Act, namely to purchase further cannabis for sale: DC HAM CRI 2008-068-000075 4 December 2008.

[9]       The Judge noted that at trial the defence case was that the cash was not obtained from sale of the cannabis but rather comprised savings left over after expenditure during his travels from the South Island.  The jury had acquitted him on a charge of selling cannabis, which rested on the possession of the cash, and so was not satisfied beyond reasonable doubt that he had actually sold cannabis.  She referred to Mr Duncan’s explanation on arrest, in which he said that he always carries his money in cash because he is a solo father and if it was in the bank his benefit would be reduced.  At trial his evidence was that he had been “stoned” when he gave his first explanation and the real reason for keeping his money in cash was that he had had an argument with his bank.  He would put his income into the bank but then withdraw it and keep it in cash.  He gave a lengthy explanation about how he had come to save the money that he brought to the North Island but admitted he had only $50 per week left over from his income after payment of essential expenses.  He claimed that he had bought 1.5 pounds of cannabis from his cousins in return for ten buckets of mutton birds and that they had generously given him 2.77 pounds instead. 

[10]     The Judge rejected Mr Duncan’s evidence entirely, finding his explanations fanciful and contrived.  Rather, the location of the cash and lack of security justified an inference that he wanted ready access to it.  It was bundled in notes according to denominations and was found in close proximity to the cannabis.  Had it been his hard-earned savings the money would have been secured.  She noted his otherwise limited financial means but relatively high expenditure and his inconsistent evidence about the use of bank accounts.  Cumulatively there was strong circumstantial evidence from which the Judge inferred that he had the cash to purchase further cannabis for sale.

Sentence appeal

[11]     On the sentence appeal, Mr Sutcliffe argued that the starting point was too high.  There was no evidence of frequent or large sales, nor could it be said that there was any period over which sales had extended.  Rather, the evidence suggests Mr Duncan was a middleman and so less culpable than others involved in the growing process.  The quantity was less than that in R v Scott, in which this Court upheld a three-year starting point for an offender who had two kilograms of cannabis.  The starting point ought to have been as low as two years.

[12]     There is nothing in these points.  Growing cannabis is not intrinsically more serious than possessing it for sale, which attracts a longer maximum penalty; see also R v Gray [2008] NZCA 224 at [12]. A middleman who sells occasionally and in bulk is not usually thought less culpable than a street dealer who conducts many small transactions – quite the contrary. The value of the cannabis was significant. In these circumstances, the starting point chosen was available. Further, the previous convictions and insistence on continuing to use cannabis were personal aggravating factors that the Judge did not bring into account. They justified an uplift of as much as six months, which would reduce the effective starting point in this case to two and a half years.

The forfeiture appeal

[13]     Mr Sutcliffe argued that the decision is inconsistent with the trial record, which suggests that the Judge thought it more likely that the cannabis was the proceeds of previous sales rather than a fund for future purchases.  He referred to her ruling on a s 347 application, in which the defence had argued that the cash might equally have been held for the purpose of buying cannabis.  She held that given the large quantity of cannabis already present she could not see how the inference could be drawn that the money was there to purchase still more. 

[14]     However, the Judge reached that view without having heard Mr Duncan’s evidence and on the explicit understanding that the defence case was that the cannabis was for his personal use, such that it was improbable that he wanted to buy more at the time of his arrest.  The matter took on a different complexion once he was convicted of possession of cannabis for supply and the Judge had heard his account.

[15]     Mr Sutcliffe also argued that the Judge must have found, contrary to the jury’s verdict, that the money was the proceeds of cannabis sales.  The Judge might have reached that view, notwithstanding the jury’s verdict, because she was applying the civil standard.  But she did not.  Rather, she concluded that Mr Duncan is a drug dealer who was purchasing his stock-in-trade for future onsale and carried the cash for that purpose.  A finding that he was stocking up before his return to Central Otago was open to her on the evidence for the reasons she gave, and we see no reason to disturb it.  The Judge’s finding leads to the conclusion that Mr Duncan had the cash in his possession for the purpose of facilitating an offence against s 6 of the Misuse of Drugs Act.  The statutory grounds for forfeiture were made out.

Result

[16]     Both appeals are dismissed.

Solicitors:
Crown Law Office, Wellington