R v Latham

[2007] NZCA 552

IN THE COURT OF APPEAL OF NEW ZEALAND

CA467/07
[2007] NZCA 552

THE QUEEN

v

PAUL JOHN LATHAM

Hearing:20 November 2007

Court:O'Regan, Williams and MacKenzie JJ

Counsel:P V Paino for Appellant

N P Chisnall for Crown

Judgment:3 December 2007 at 11 am

JUDGMENT OF THE COURT

AThe appeals against sentence are allowed and sentences of one year and four months’ and ten months’ imprisonment substituted for the sentences imposed in the District Court on the charges of cultivating cannabis and theft of electricity respectively.  The reparation order imposed in the District Court is unchanged.

B        Leave is granted to the appellant to apply for home detention.

REASONS OF THE COURT

(Given by Williams J)

Table of Contents

Para No

Issue   [1]
Facts   [4]
Sentencing   [6]
Submissions  [11]
Discussion  [20]
Result  [28]
Postscript  [31]

Issue

[1]       On 10 July 2007 the appellant, Mr Latham, pleaded guilty in the Wellington District Court to cultivating cannabis between February 2005 –­ February 2006 and stealing electricity between April 2004 and February 2006.  The pleas were entered about a week before trial

[2]       On 13 August 2007 Mr Latham was sentenced to two years and two months’ imprisonment on the cultivation charge and 14 months’ concurrent imprisonment on the theft charge, together with reparation of $2,200 for the stolen electricity.

[3]       He appeals to this Court on the basis the sentences imposed, particularly that on the cultivation charge, were manifestly excessive.

Facts

[4]       When Police executed a search warrant on the appellant’s address on 21 February 2006 they found the following:

(a)Eight cannabis plants of varying heights growing outside in containers at the rear of the property.

(b)       In the roof cavity accessed through a man-hole

i)Three cannabis plants about 1 m high growing in buckets.

ii)40 cannabis cuttings about 10 cm in height in two plastic trays.

iii)94 cannabis plants about 20 – 30 cm in height in other containers.

iv)117 cannabis plants in ten storage containers.  Though only 20 – 30cm in height, these plants were mature in that they had formed “head”.

v)Heat lamps hung over the cannabis containers with a fan for circulation and an operative timing unit.  The roof space also included measuring containers, plant food, potting mix and similar growing aids.

(c)Four cannabis “buds” weighing 0.25 g in the kitchen, together with two spotting knives, hand-held scales, tin-foil and snaplock bags.

(d)In the master bedroom a pipe for smoking cannabis, and a canister containing 0.2 g of dried cannabis.

[5]       Electricity had been diverted before the meter to supply power to the attic.  Analysis showed significantly reduced electricity usage for the 22 month period from 24 April 2004 to 21 February 2006.  Differences between the previous average usage and that metered during that period gave rise to the reparation claim.

Sentencing

[6]       The summary of facts was not agreed at the time pleas were entered.  In any event, whilst it included commonplace comment about cannabis cultivation and yields, it included nothing concerning possible yields or value from the appellant’s operation.

[7]       There was, as is common, a dispute at the sentencing hearing on those issues but, rather than there being a hearing under s 24 of the Sentencing Act 2002, the Judge, apparently with the agreement of both counsel, based her sentencing remarks largely on photographs prepared for the trial of the appellant and his co-accused.

[8]       Despite that, the Judge began by largely repeating the summary of facts.  She then summarised the pre-sentence report and the appellant’s list of previous convictions before noting the Crown stance that the starting point should have been between two to three years as being in Category 2 of the appropriate sentences for cannabis cultivation defined by this Court in R v Terewi [1999] 3 NZLR 62. She then summarised the submissions in mitigation, noting there was no evidence of sales, dealing, or the value of the plants.

[9]       In her discussion, the Judge (at [23]) accepted the appellant’s offending was within Category 2 of Terewi. She rejected that the entire crop was for the appellant’s personal use. She selected a starting point of three years after taking account of the aggravating factors of the electricity theft and what she termed “premeditation in the effort required to acquire and set up the growing operation”. However, perhaps contradictorily, she said there was “no evidence of a commercial aspect”: at [28].

[10]     The Judge did not take the previous convictions into account but gave credit for the appellant’s pleas and the time at which they were made.  That led her to allow a “generous discount” resulting in the sentences earlier mentioned.

Submissions

[11]     For the hearing before us, affidavits were filed by the appellant and his former counsel.  The latter dealt principally with the instructions he said he received prior to sentencing, but since Mr Paino, counsel for the appellant, said that counsel’s affidavit was unexpected and would have to be subject to cross-examination were it to be relied on, we took the view the issues raised by counsel were peripheral to the central thrust of the appeal, and put the affidavit to one side.

[12]     For the Crown, Mr Chisnall accepted the Crown was not in a position to dispute the appellant’s affidavit about the relevant facts, and that not all that information was before the Judge.  In those circumstances he agreed that what counsel was told was not really the issue and was content for the appeal to be considered on the basis that this Court would take into account the factual material contained in the appellant’s affidavit.

[13]     Mr Latham’s affidavit asserted, again in reliance on the photographs, that the mature plants were to be picked the day following execution of the search warrant and would have yielded no more than 280 g of cannabis before he shared that crop equally with his co-offender.  He claimed the outdoor plants were lower grade and would have produced only about 100 g of dried cannabis.  He confirmed he asked to be sentenced on the basis that there was “no commercial aspect in the cannabis growing”.

[14]     In submissions, Mr Paino stressed the appellant’s estimate of yield and the fact that the 117 plants, though small in size, were mature and, when picked, would only have yielded some 280 g of cannabis.  This was therefore a case where no further growth of the small plants could occur.  Accordingly it was misleading for the general section of the summary of facts to say, as they commonly do, that a mature cannabis plant will “conservatively produce up to a pound of cannabis ‘head’ per cycle”.

[15]     The eight outside plants were not being grown hydroponically.  The cannabis found in other areas of the house was, he submitted, entirely consistent with the appellant’s heavy use of the drug.  He submitted that the physical distance of the other items from the roof space meant there was no connection between the scales and the growing operation.  Mr Paino also stressed the unsophisticated nature of the operation and the lack of indicia of dealing often found in other cases such as evidence of sales, cut tin-foil, “tick” lists and the like.

[16]     He accepted the theft of electricity was an aggravating factor but told us Mr Latham had paid $500 of the sum ordered and had arranged automatic payment of the balance of $50 per week. 

[17]     In light of all of that, the appellant’s evidence as to heavy personal use and the absence of evidence as to yield, Mr Paino submitted the appellant’s case was more appropriately within Category 1 of Terewi.  Accordingly, the starting point on the cultivation count should have been in the range of six to 12 months’ imprisonment with a reduction of about one-third for mitigating factors.

[18]     For the Crown, Mr Chisnall submitted the Judge’s approach was unexceptionable. 

[19]     While the yield from the 117 mature plants may have been modest, he made the point that as many as 254 plants in all were in the roof space.  That, together with the other cannabis paraphernalia around the property, justified the Judge’s view that Mr Latham’s offending fell properly within Category 2 of Terewi.

Discussion

[20]     The principal question on appeal is whether the Judge was correct in all the circumstances to hold the appellant’s offending was appropriately placed in Category 2 of  Terewi.

[21]     In considering that question, it is helpful to repeat part of this Court’s judgment in that case.  After noting the maximum penalty for cannabis cultivation remains only seven years’ imprisonment under s 9(2) of the Misuse of Drugs Act 1975, a year less than the maximum for selling cannabis, this Court observed:

[4]       It remains appropriate to divide cannabis cultivation offending into three broad categories:

Category 1: consists of the growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence. Where there have been supplies to others on a non-commercial basis the monetary penalty will be greater and in more serious cases or for persistent offending a term of periodic detention or even a short prison term may be merited. (It is to be noted in this connection that there is no separate offence in relation to a Class C drug of supplying or possession for supply, as opposed to selling or offering for sale or possession for sale (s 6(1)(e) and (f).)

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.

…

[5]       As the Court remarked in [R v ] Dutch [[1981] 1 NZLR 304 (CA)] at p 308, “the border-line between each class may in specific cases be indistinct and sometimes incapable of exact demarcation.”

[22]     Though repeated many times since, there remains, on occasion, confusion between the references to “sale” in the paragraphs defining Categories 1 and 2, “commercial purpose” in Category 2 and “supplies to others on a non-commercial basis” in Category 1.

[23]     The present is a case where, although there was no evidence of sale, there was evidence of supply, or an intention to supply, to at least one other – Mr Latham’s co-accused – and the quantity of cannabis being grown, coupled with the number of plants and the possibility of repeat cycles of cultivation, suggested the appellant’s operation may have been unlikely to have been all for his personal use or the personal use of the appellant and his co-accused.  Indeed, to the Probation Officer, Mr Latham “explained that he and an accomplice grew the cannabis for their own use and that he had planned to give away some of his half share to friends”.

[24]     We also consider it noteworthy that, although the sentencing Judge largely repeated the Police summary of facts in her sentencing notes, she omitted the reference to the 117 plants as “mature” and thus incapable of further growth or greater yield than they bore at the date of execution of the search warrant.  We also note the Judge’s acceptance of there being no commercial aspect to the appellant’s offending.

[25]     It should also be noted that we, like the sentencing Judge, have given close attention to the photographs, but see them in light of Mr Paino’s submissions and the other matters earlier discussed.

[26]     Having taken all those matters into account, we are unable to conclude, as the Judge did on the basis of the more limited factual material before her, that Mr Latham’s offending fell within Category 2 of Terewi thus meriting a starting point, after factoring in the aggravating matters relating to the offence, of three years’ imprisonment.  We take the view that although the number of plants and other indicia of cultivation were reasonably significant, the likely yield was modest and the evidence of supply, rather than sale, to others was minimal.  We conclude the appellant’s offending was on the border-line of Categories 1 and 2 of Terewi and bear in mind the appropriate sentences discussed in that case for such offending.  In light of that, our view is that the appropriate starting point, even taking into account the aggravating factors identified by the Judge and the duration of the theft of electricity, was imprisonment in the region of two years or a little more.

[27]     The Crown did not challenge the appropriateness of the figure allowed for the mitigating factors identified by the Judge.

Result

[28]     In the result, the appeal is allowed and a sentence of one year and four months’ imprisonment substituted for that imposed in the District Court on the charge of cultivating cannabis.

[29]     It follows that the sentence for theft of electricity should be correspondingly reduced and the appeal on that sentence is also allowed and a sentence substituted of ten months’ imprisonment.  The reparation order is unaffected.

[30]     As the Crown responsibly conceded, were we to reach that view, the Crown could not object to leave being granted for the appellant to apply for home detention.  Leave will be granted accordingly.

Postscript

[31] Mr Paino raised the possibility of this Court imposing a sentence of home detention on Mr Latham under s 80A of the Sentencing Act, which came into force on 1 October 2007, instead of a reduced term of imprisonment with leave to apply for home detention. Unfortunately and perhaps surprisingly, the transitional provision in the Sentencing Amendment Act 2007, s 57, does not address the situation now before the Court, where the appeal relates to a sentence imposed before the date on which s 80A came into force, but the appeal is dealt with after that date. We concluded that we should deal with the appeal on the basis of the law as it stood at the time of sentencing because:

(a)The transitional provision, s 57, does not confer any specific jurisdiction on this Court to impose the s 80A sentence in circumstances where that was not an option for the sentencing Judge;

(b)This Court would need to call for an additional pre-sentence report dealing with the matters in s 26A of the Sentencing Act in order to consider properly the merits of Mr Latham’s case for a s 80A sentence, and would be addressing the relevant criteria without the benefit of the sentencing Judge's views;

(c)This Court's powers in sentencing appeals under s 385(3) of the Crimes Act are either:

(i)to quash the sentence passed and pass such other sentence warranted in law (whether more or less severe) in substitution therefor as the Court thinks ought to have been passed; or

(ii)to vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.

Both of these are focused on the sentence which was imposed by the sentencing Judge.  It is notable that any substitute sentence imposed in this Court is that which this Court thinks ought to have been passed.  It is hard to see how this Court could conclude that a sentence of home detention under s 80A ought to have been imposed by the Judge when she had no power to impose that sentence;

(d)Although s 97 of the Sentencing Act, which gave the Court power to grant leave to apply to the Parole Board for home detention and ss 33 − 35 of the Parole Act 2002, under which the Parole Board dealt with applications for home detention, are now repealed, we are satisfied that ss 17 and 19 of the Interpretation Act 1999 operate to preserve the power of the Court to grant leave and that of the Parole Board to direct that a sentence be served on home detention in the circumstances of this case.

Solicitors:

Paino & Robinson, Upper Hutt, for Appellant
Crown Law Office, Wellington