R v Keefe Ca275/02

[2002] NZCA 354

IN THE COURT OF APPEAL OF NEW ZEALAND CA275/02

THE QUEEN

V

RICHARD MELVIN KEEFE

Hearing:	20 November 2002
Coram:	Anderson J Williams J Baragwanath J
Appearances:	R S Garbett for Appellant B J Horsley for Crown
Judgment:	28 November 2002

JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J

Appeal

1. At the conclusion of a jury trial in the District Court at Whangarei the appellant, Mr Keefe, was convicted on one count of possessing cannabis plant on 13 March 2001 for supply.  During trial he had been discharged under the Crimes Act 1961 s 347 on counts of manufacturing methamphetamine and stealing electricity. 

2. On 8 August 2002 Mr Keefe was sentenced to two years imprisonment on the possession for supply count.  He was granted leave to apply for Home Detention.  He now appeals to this Court on the ground that in the circumstances a term of two years imprisonment was manifestly excessive.

Facts

1. On 13 March 2001 the Police searched Mr Keefe’s premises at Kawakawa pursuant to a search warrant and found 532 grams of cannabis described as “good quality head” in an electronic amusement game.  Some additional cannabis was found on a table.  The police also found three sets of scales, one digital and two spring-loaded.

2. The amount of cannabis plant found in Mr Keefe’s possession exceeded by nearly 20 times the presumption for sale limit of 28 grams (Misuse of Drugs Act 1975 s 6 (e)).  We did not have the notes of evidence but were advised that, in order to try to rebut the presumption, Mr Keefe gave evidence at trial asserting that all the cannabis plant found in his possession was for his own use.  By its verdict, the jury must have rejected that explanation, at least as to part of the quantity.

Sentencing remarks

1. The Judge opened his sentencing remarks by emphasising his advantage in sentencing because of being the trial Judge.  That, coupled with evidence as to the approximate value of the cannabis found in Mr Keefe’s possession, $3600, the finding of a number of snap-lock bags and at least one of the sets of scales, led him to conclude (para [3] p2) that there were “indications of commercial dealing quite independently of the presumption”.  That, in its turn, led the Judge to take the view that Mr Keefe’s offending placed him within the second category of R v Terewi [1999] 3 NZLR 62. Accordingly, a starting point of imprisonment for 2-4 years was indicated.

2. After reviewing the relevant provisions of the Sentencing Act 2002 ss 7 and 8, the Judge considered Mr Keefe’s personal circumstances.  The appellant has a lengthy list of previous convictions, though nothing involving imprisonment prior to 1998.

3. The Judge, correctly, then directed himself as to the need for deterrence and for a sentence to be imposed that would (para [14] p 4) “sting the person convicted”.  After balancing aggravating factors against such mitigating factors as there were, the Judge decided that a sentence of two years imprisonment was appropriate.

Submissions

1. For Mr Keefe, Mr Garbett submitted that there was no evidence of significant commercial dealing by the appellant because there was no evidential link between the snap-lock bags and scales and the cannabis and no other indicia of drug sales.  He submitted that Mr Keefe’s offending should have been placed in category 1 of Terewi because he was growing only a small number of cannabis plants for his personal use.  Even if he had failed to rebut the presumption, Mr Garbett submitted that the verdict still allowed the conclusion that some at least of the cannabis was for Mr Keefe’s use.  He drew attention to a jury question seeking guidance as to whether sharing a “joint” of cannabis amongst friends amounted to supply as indicating the low level of supply which the jury may have accepted.  Mr Garbett submitted that a term of imprisonment of 6-9 months would have been appropriate.

2. For the Crown, Mr Horsley made the point that the Judge’s sentencing remarks earlier cited made clear that he took the view that Mr Keefe had been involved in commercial dealing, not just sharing a “joint” amongst friends.  Indeed, he advised that in evidence Mr Keefe denied giving away any cannabis.  Mr Horsley stressed the Judge’s advantage on sentencing through having been the trial Judge.  Supporting the sentence, he pointed to Mr Keefe’s history of over thirty convictions including one for possessing a prescription medicine in 1993 for which he was sentenced to five months periodic detention and given a final warning.  Mr Horsley also relied on the probation officer’s assessment that Mr Keefe was at high risk of further convictions in light of his record, and the officer’s doubts as to motivation to change.

Discussion and decision

1. This is a case where the appellant was found in possession of good quality cannabis head amounting to nearly twenty times the amount required to trigger the presumption that he had it for supply.  He endeavoured to rebut that presumption but his evidence was disbelieved at least in part.  The jury’s verdict can only be construed as accepting that Mr Keefe was indulging in commercial dealing even though it may only have been on a small scale.  The Judge certainly took that view. He had the advantage of hearing the evidence.  There was no suggestion that his conclusion lacked evidential foundation.  In our view there is no principled basis on which we could differ from the Judge’s conclusion.  His categorisation of Mr Keefe’s offending falling within the second band in Terewi was correct.

2. In selecting a sentence at the bottom of category 2 from Terewi, the Judge may well have been acknowledging the modest scale of Mr Keefe’s commercial operation.  He rightly placed little reliance on Mr Keefe’s personal circumstances.  In Mr Keefe’s favour, he largely disregarded factors such as Mr Keefe’s record which might have been thought to aggravate the offence.  He considered Mr Keefe’s position as one displaying a low level of commercial dealing alongside Mr Keefe’s personal use of cannabis.  He sentenced Mr Keefe accordingly.  Though Terewi involved cannabis cultivation rather than possession for supply, there are analogues in terms of sentencing in circumstances such as this.  No basis has been made out for this Court to intervene and amend the sentence.

Result

1. The appeal against sentence is accordingly dismissed.

Solicitors:

Crown Law Office, Wellington.