R v Shelton HC Whangarei CRI 2010-011-81

[2010] NZHC 2084

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2010-011-000081

THE QUEEN

v

TOBY LEA SHELTON

Hearing:         9-10 September 2010

Counsel:         A L Hyndman for the Crown

K Hennessy for the Prisoner

Judgment:      15 September 2010 at 3 P.M.

FACTUAL FINDINGS OF POTTER J

pursuant to s 24 Sentencing Act 2002

In accordance with r 11.5 High Court Rules

I direct the Registrar to endorse this judgment

with a delivery time of 3 p.m. on 15 September 2010.

Solicitors:           Crown Solicitor, P O Box 146, Whangarei 0140

Copy to:            K Hennessy, P O Box 75, Kaikohe 0440

R V SHELTON HC WHA CRI-2010-011-000081  15 September 2010

Introduction

[1]      Toby Lea Shelton pleaded guilty in the District Court at Whangarei on 26

March 2010 to one charge of cultivating cannabis between 20 November 2009 and

10 February 2010.   The District Court declined jurisdiction and the prisoner was committed to the High Court for sentencing under s 28G of the District Courts Act

1947.  On 26 March 2010 the prisoner challenged the estimated potential yield of cannabis head from the plants located by Police as stated in the summary of facts.  It was estimated to be between 34.125 and 45.5 pounds.  That gave rise to the disputed facts hearing from which these findings follow.

Disputed facts

[2]      The prisoner claims that he grew the cannabis for his own use, that the potential yield was 4-5 pounds and that the street value was $3,200-$7,500.

[3]      When  Mr  Shelton  disputed  the  estimated  potential  yield  stated  in  the summary of facts the Crown obtained a review from a Police drug expert.  It was his opinion that the potential yield was as stated in the summary of facts, the value of the potential yield exceeded $100,000, and the evidence supported this being cultivation of cannabis for commercial purposes.

Disputed facts hearing

[4]      Section 24 of the Sentencing Act 2002 provides:

Proof of facts

(1)      In determining a sentence or other disposition of the case, a court

(a)may  accept  as  proved  any  fact  that  was  disclosed  by evidence at the hearing or trial and any facts agreed on by the prosecutor and the offender; and

(b)       must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.

(2)       If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,

(a)       the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:

(b)if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the hearing or trial:

(c)the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate [beyond a reasonable doubt] any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:

(d)the offender must prove on the balance of probabilities the existence of any disputed mitigating act that is not related to the nature of the offence or to the offender’s part in the offence:

(e)either party may cross-examine any witness called by the other party.

(3)For the purposes of this section, aggravating fact means any fact that

(a)       the prosecutor asserts as a fact that justifies a greater penalty or other outcome that might otherwise be appropriate for the offence; and

(b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case

mitigating fact means any fact that

(a)       the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and

(b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.

[5]      For sentencing purposes the significance of the disputed facts is whether the prisoner’s  offending  falls  within  category  1  in  R  v  Terewi1   (small  quantity  of cannabis for personal use by offender) or category 2 (small-scale cultivation of cannabis plants for commercial purposes) or category 3 (large-scale commercial growing).

[6]      I proceed on the basis that the potential yield from the prisoner’s cannabis crop and its estimated value are aggravating facts relevant to the sentence to be imposed.  Accordingly the Crown must prove the disputed facts beyond reasonable doubt before they may be taken into account in sentencing: s 24(2)(c).

Factual background

[7]      Police  were  alerted  to  the  prisoner’s  cannabis  crop  by  a  Police  aircraft working in the Kaihau area.   When Police executed a search under the Misuse of Drugs Act 1975 at the property occupied by the prisoner at about 5 p.m. on 10

February 2010, Mr Shelton was the only person present.

[8]      Police   located   182   healthy,   mature   cannabis   plants   ranging   from approximately 160 cms to 180 cms in height.  The plants were all female cuttings and were uniform in appearance.  From their appearance they had been well tended. The cannabis had been planted in a plot that ran along the north-east face of a bank situated at the rear of the house occupied by the prisoner on the property.  The plants were in a terraced plot on which potting bags containing the plants were placed, in a fashion consistent with the contours of the bank.

[9]      The potting bags were 40 litre bags, each bag having two circular cuts taken from the top sides.   Two cannabis plants were planted directly into the growing medium in the circular cuts.  The bags were painted a dark grey/green colour which camouflaged them  amongst the vegetation in and around the plot.   Under each

1      R v Terewi [1999]3 NZLR 62.

potting bag a newspaper had been placed to prevent weed growth.   There were numerous bamboo stakes in the ground throughout the plot which also had been painted a dark grey/green colour.  They had baling twine running from them which was used to support the cannabis plants.

[10]     Along a track at the foot of the plot Police found containers holding what appeared to be fertiliser formulas, and also a measuring scoop.   A green coloured watering container and a small green coloured miniature drip emitter were found.  A garden hose connected to a black PVC hose ran from the plot uphill to a tap at the corner of the garage near the house.  This provided a flow of water to the cannabis plot.  Police located assorted fertiliser containers and empty potting bags, and in the house a single cannabis pipe.

[11]     Mr Shelton stated to Police that he had grown the cannabis for his personal use.  He estimated the crop would yield about 40 ounces.

[12]     The above facts are not in dispute.  The potential yield and the purpose and commercial value of the crop are in dispute.

Statements and exhibits

[13]     Detective Stephen Chamberlain, with the  agreement of the defence, read from his written statement.  Detective Wahanui Reihana gave viva voce evidence. Mr Shelton filed a handwritten statement entitled “Submissions”.   He read this in evidence with a number of interpolations.

[14]     The Police exhibited two photograph booklets, a booklet prepared from the internet showing various varieties of cannabis plants and a broad view photograph of the cannabis plot taken by Detective Reihana.  These were referred to in evidence by all witnesses.  Mr Shelton produced a plan showing a cross-section of the property and the descending levels from the house through the area of the cannabis plot to a drain and a kiwifruit orchard on a level area to the north of the bank where the cannabis was grown.

Detective Chamberlain

[15]     Detective Chamberlain is attached to the Whangarei Criminal Investigation Branch.   He was previously a member of the Northland Organised Crime Squad based in Whangarei for four years, and of the Northland Drug Squad for over two years.   He has been in the Police for over fifteen years serving in the Northland region throughout that time.  He has been in the Criminal Investigation Branch for eleven years.  Prior to joining the Police he obtained a Bachelor of Horticulture from Massey  University  and  was  engaged  in  horticulture  related  employment  for  a number of years.

[16]     Detective Chamberlain is a member of the Northland Clandestine Laboratory Response Team.  As part of his daily work he keeps up to date with the current costs of controlled drugs and also the methods and processes involved in the cultivation and manufacture of controlled drugs.  Throughout his time working with the Police in Northland he has seen a large number of cannabis plants at various stages of growth, from seedlings through to mature plants, as well as large quantities of dried cannabis material of varying grades.  He has worked on approximately thirty phases of the annual Northland drug recovery operations and has carried out a number of different roles in these operations including being the officer in charge of the Chase and Search teams.

[17]     Detective  Chamberlain  confirmed  that  he  understood  and  accepted  the principles applicable to experts giving evidence, in essence that he would give fair and impartial evidence, being an advocate for neither party.

[18]     After describing cannabis generically and relevant packaging,  grades and values,  Detective  Chamberlain  turned  to  the  Police  evidence  in  relation  to  Mr Shelton.   He said that on 10 February 2010 he was the Officer in Charge of the Chase Team for the Whangarei/Kaipara phase of the Northland phase of the National

Cannabis and Crime Operation.  He attended the address with other officers, having received a direction at about 5 p.m. on 10 February 2010.

[19]     He  referred  to  the  213  cannabis  plants  that  were  located,  182  of  these growing in 91, 40 litre potting mix bags, two in each bag.  He described the plants as very healthy and between 135 and 180 cms in height.  He also referred to a further

31 cannabis plants which were between 15 and 30 cms in height and were growing in peat pots.

[20]     The Police estimated the area in which the cannabis plants were growing as being approximately 30x10 metres.

[21]     Detective Chamberlain commented on aspects of the written material filed by Mr Shelton.  Mr Shelton claimed that the cannabis he used, and the cannabis he was growing in the plot, was “New Zealand Green” which contained less THC than strains commonly grown today.  Detective Chamberlain accepted that New Zealand Green was a description used for the predominant variety of cannabis grown in the

1970’s and 1980’s and that it contained less THC than strains commonly grown today.  He described New Zealand Green as “a thing of the past, basically”.  He said that sativa or New Zealand Green plants are not seen any more; that he probably had not seen anything like that in the last four to five years, although they were quite common ten to fifteen  years ago.   He said that the term “Bush” in  relation to cannabis refers to outdoor grown cannabis in general and is not specific to “New Zealand Green”.

[22]   He described the typical outdoor grown cannabis plant of that era as significantly larger and taller than typical cannabis plants grown outdoors today, not uncommonly growing into trees over 12 feet tall.

[23]     He identified predominantly three distinct types of cannabis plants: sativa, indica and ruderalis.  He said that based on his experience, the majority of cannabis grown in Northland is a hybrid of sativa and indica.   He said plants are usually categorised  as  sativa  or  indica  or  sativa/indica,  often  being  described  as  sativa

dominant or indica dominant, depending on their genetic makeup and their appearance and growth habit.

[24]     He described sativa plants as larger, sometimes growing up to 20 feet tall, that their growth form is more like a tree and the leaves are thinner and a lighter green  than  indica  plants,  and  they take  longer  to  grow  into  flower  than  indica varieties.   Indica plants are generally smaller, bush-like plants with little distance between branches.  They usually have wider darker green coloured leaves.

[25]     He said that traditionally grown New Zealand Green cannabis plants are consistent with a pure or mostly pure cannabis sativa plant.

[26]     In the opinion of Detective Chamberlain the cannabis plants located on the property occupied by Mr Shelton on 10 February 2010 were not the variety commonly known as New Zealand Green.  He said the plants did not show any of the typical sativa dominant characteristics of New Zealand Green grown cannabis. In his opinion the cannabis plants were more consistent with an indica/sativa cross or an indica dominant plant.

[27]     He referred to Mr Shelton’s written material in which he described the way he grew the cannabis as the “bonsai” method.  Detective Chamberlain said he did not believe the cannabis plants were grown utilising bonsai techniques, and that description was misleading.  He described bonsai cultivation techniques as including pruning, root reduction, potting, defoliation and grafting to produce small trees that mimicked the shape and style of mature, full-size trees.  He said that because of the relatively small size of bonsai plants the yield of cannabis head from the plants is generally small.

[28]     He contrasted the method used by Mr Shelton, which involved growing two cannabis plants inside 40 litre bags of general purpose potting mix.  He observed that effectively this meant each plant had an average of 20 litres of potting mix.   He pointed  to  the  evidence  that  the  cannabis  plants  were  receiving  supplementary feeding by liquid fertiliser.

[29]     Detective Chamberlain said he did not accept that these cannabis plants were grown as bonsai plants.  He said a more accurate description of the growing method would be hedgerow style planting.

[30]     Nor did Detective Chamberlain accept Mr Shelton’s statement that by the middle  of  February there  were  no  indications  of  any buds  forming.    Detective Chamberlain said:

This is inaccurate as there were signs of flower formation on all the mature plants.  This allowed us to ‘sex’ the plants and establish that they were all female plants.

[31]     He estimated that the plants had at least six to eight weeks before being ready to harvest.  He said he would have expected them to continue growing in height with the majority of the growth being in the number and size of cannabis heads or buds.

[32]     He accepted that the watering system was by garden hose and relatively unsophisticated.  However, he pointed to the preparation undertaken: 91 bags of 40 litre potting mix with two holes cut in each bag which had been neatly placed in terraces on the north-east facing bank so that the plants received the maximum amount of sunlight.   He referred to the newspaper placed under the bags to help reduce weed growth and the painting of the potting mix bags grey/green by way of camouflage.  He noted that the cannabis plants had been staked and tied and there was evidence of additional liquid fertiliser having been used.

[33]     He said that any container grown plant can grow into healthy, heavy yielding cannabis plants as long as the plants receive sufficient nutrients, water and light.

[34]     In estimating the potential yields from the crop, Detective Chamberlain based his estimates on experience and previous yield tests on mature plants, as these plants were not at the harvesting stage to enable a sample to be taken.  Only the 182 almost mature cannabis plants were considered for the potential yield calculations.   He accepted that the 31 small cannabis plants growing in peat pots were likely to be surplus to requirements.

[35]     Detective Chamberlain commented specifically on the close planting of the cannabis plants which he likened to hedgerow  style planting.   He said that the limiting factor on the plants producing heads would be light, and that had the plants been planted say two metres apart, they would have produced more cannabis head. Nevertheless, he believed they would still be heavy yielding plants, yielding three to four ounces per plant compared with up to eight ounces, had they been planted further apart with better access to light.  He said he would expect a number of heavy yielding heads to come off each plant.  He disagreed with Mr Shelton’s view that the yield would be restricted to one to two buds per plant.

[36]     He considered a conservative yield from each of the 182 cannabis plants would be between three and four ounces of head material.  Accordingly, he would have expected these plants to have yielded between 546 ounces (182 plants x 3), being the equivalent of 34.1 pounds and 728 ounces (182 plants x 4), being the equivalent of 45.5 pounds.

[37]     He said that a pound of outdoor grown cannabis generally sells for around

$3,200.   He accordingly estimated the value of the estimated potential  yield as follows:

a)        At three ounces per plant - $108,800 (34 pounds x $3,200);

b)        At four ounces per plant - $144,000 (45 pounds x $3,200).

[38]     Given this estimated potential yield, he believed the evidence supported the conclusion that the cannabis was cultivated for commercial purposes.

[39]     In answer to questions from the Court, Detective Chamberlain confirmed that if the prisoner’s evidence that he required four and a half to five pounds per annum of cannabis for his own use was accepted, the value of the balance of the crop after allowing for this amount, would be between $96,000 and $128,000.

[40]     He noted that while the stated intention of Mr Shelton was to grow four and a half to five pounds of cannabis head for his personal use for the year, when initially

spoken to by the Police he said he anticipated the yield from the crop to be forty ounces of cannabis head material.  Detective Chamberlain said this equates to just over six grams of cannabis head per plant, whereas to meet Mr Shelton’s stated personal use requirements, would require just over eleven grams of cannabis head per plant.

[41]     Commenting on the prisoner’s claim that he intended to grow four and a half pounds of cannabis head for his personal use for a year, Detective Chamberlain said that would equate to a little over an ounce and a half a week, which would be “possible” but an “upper level” for personal use.  He said for a person who is heavily addicted and smoking all the time, it would be possible.

Detective Reihana

[42]     Detective Reihana was appointed Officer in Charge of the outdoor scene and of exhibits.   He said that the cannabis plot was not visible from the road or the driveway to the property and could not be seen until the Police advanced to the edge of the embankment, when they could see the tops of the cannabis plants about fifteen metres away.

[43]     He described the cannabis plot as set up on a steep sort of embankment, enclosed by several large trunks of trees that were lying at angles down the embankment.   He described the plot as terraced, with some of the plant bags containing the plants, terraced in at different levels, around the old tree trunks that were on the ground.   The Police removed all the plants and could then see the different levels of terracing that had been created.  He thought there were about six different tiers of terraces contoured into the bank, steeper on the right hand side where the bank dropped away more steeply.  He said the terrace sites were different widths because some of the planter bags were planted lengthwise and others were planted width wise to fit in with the contour of the terrace.

[44]     He described how the Police pulled the plant out, shook it, dusted it off and then photographed the root system, though some of the root system, he said, would have been left inside the planter bag.

[45]     He referred to old potting bags found in two different areas of the plot which had circular patterns cut out from the top of them, but were empty.

[46]     He  described  the  terraces  as  having  been  “dug  out”.    In  response  to  a proposition  put  in  cross-examination  that  it  would  have  been  too  much  for  the terraces to have been dug by hand, he said they appeared to him to have all been done by hand.   He said that when he lifted the bags off to discard them, it was apparent the terraces had been cut out of the dirt with a spade.  He said:

You wouldn’t be able to do it with anything else, to have it so cleanly cut. Some of the branches or obstacles that the bank’s been planted around or placed around, you would have had to have dug those out with a spade because you would never get them out any way else.

[47]     In response to Mr Shelton’s description of the terraces having been created by a bulldozer dragging logs lengthwise along the face of the bank, thus creating a number of small terraces, he said, “No, I don’t believe those terraces would have been created like that, from what I saw”.  He further described:

... from what I saw, there was six distinct terraces where the, once they’d removed the bags from those terraces the dirt had been cut in with what I believed to be a spade or something similar.  It would have taken a lot of work to have done that, but someone’s obviously spent a lot of time doing that.

He said he saw no evidence of machinery having been used, or any machinery such as a bulldozer at or having been at the property.

Mr Shelton

[48]     Mr Shelton said he had been smoking cannabis for forty years, he was an addict, and has always smoked “New Zealand Green” which is of lesser strength than the strains commercially grown today.   He said he would grow four to five pounds a year for personal use.

[49]     In his written statement he set out in considerable detail how he intended to grow 180 plants in the bonsai fashion which he estimated would produce the same as

eighteen normal plants, to produce four and a half pounds for a year’s supply of cannabis.

[50]     He said he chose to grow “180 miniaturised plants yielding one to two buds per plant to give me a supply of about four and a half pounds of Bush variety (NZ Green)”.  When he gave evidence at the hearing he said he used the term “bonsai” method because that was the only sort of expression he could think of, but he considered Detective Chamberlain’s description of hedgerow planting to be more appropriate.

[51]     He said he decided to grow cannabis plants on the steep bank behind the house which had previously been planted in large pine trees.  He claimed that a large number of small terraces along the face of the bank had been created by a bulldozer dragging the logs of felled trees lengthwise along the face of the bank, which had occurred in 2003.  He said the terraces had been overgrown with wild jasmine.

[52]     He said he intended to miniaturise the plants by greatly restricting the root growth and planting each plant no more than twelve inches apart.  Consequently the yield would be restricted to one or two buds per plant instead of the normal ten to twenty.  Therefore a large number of bonsai plants were needed to produce the four to five pounds he required.

[53]     He described how he purchased ninety bags of potting mix, laid them flat on top of the jasmine on the natural terraces of the bank, cut two holes in each bag and planted the cannabis seeds into the holes.  He said he expected each plant to reach a height of no more than three feet and that the height they had reached, four to five feet, when the Police came to the property in February, was “unexpected”.

[54]     He  claimed  there  was  no  indication  of  any  buds  forming,  “...  just  an enormous amount of useless foliage as shown in the photos”.  He said he anticipated that each plant would have one stem capable of producing one bud on each, but he had noticed that a few plants actually had two stems capable of yielding a bud.

[55]     He claimed there was no preparation of the site, and that it was very basic operation with watering from a garden hose run from a tap from the back of the house.  He said he chose the site (which he had previously used in 2003-2004 for growing twenty cannabis plants), and the bonsai method to restrict the growth of the plants because he had a great fear of the neighbours who he knew to be cannabis users, stealing his plants if they spotted his patch.

[56]     He said he staked the plants.  Because each plant had grown up with just one stem, he was able to use one stake for between four to eight plants.  He put the stake between the potting mix bags and then had strings going from the main stems of each plant to the bamboo stake.  He said he watered the plants every second day and fertilised them with liquid fertiliser using a ten litre watering can.

[57]     He considered that the harvest of the plants should start in March, that the plants stopped growing at about mid-February, based on his experience, and that they were about four weeks away from maturity.

[58]     He emphasised that had he wanted to grow a commercial crop he would not have grown in the manner he did.  He stated:

If  I  was  intending  to  grow  commercially  I  would  never  have  used  the

“Bonsai” method with its very low yield per plant.

He further said that if he had intended to grow commercially he could easily have done so because he lived on 21 acres of kiwifruit trees and woodland so space was never a problem.  He said he could have planted full size plants between the citrus trees in the orchard.  He said “I could have planted hundreds of plants between each of the citrus trees”.

[59]     He said the seedlings were given to him by a Maori person and were all of the New Zealand Green Bush variety.   He claimed they were afghan indica, by reference  to  the  chart  showing  different  varieties  of  cannabis,  produced  by  the Police.  He said there were actually about five strains of New Zealand Green brought into New Zealand by seed prior to 1970.  He said that two of these strains, india and afghan are indicas, and  the remainder were sativas.   He claimed the variety of

cannabis he was growing was one of the old so-called New Zealand Green strains which was not a hybrid and had a THC level considerably lower and therefore a market value considerably less, than the new strains.  Mr Shelton purported to give evidence  about  the  value  of  New  Zealand  Green  Bush  variety  cannabis.    The evidence was hearsay and unreliable.  I ruled it inadmissible.

[60]     In answer to cross-examination, Mr Shelton agreed that the plants he grew were not like bonsai plants, but said he had not wanted the plants to grow over three feet tall.  He said he had failed to realise his intention to restrict the growth of the plants.  He said his main object was to restrict height because he did not want them to be detected by his neighbours.  He agreed he had been fertilising the plants but said he considered that was necessary for their survival, but he agreed it would encourage the growth of the plants.  He said he thought by reducing the size of the bag and by putting two plants into each bag, the plants would be much smaller than plants he had previously grown.

[61]     He denied there are any buds forming.   He did not agree with Detective Chamberlain’s view that buds could be seen forming on some of the plants.  He said what could be seen were the heads of the main stems of the plants which he was hoping would form into buds, but no buds were showing.

[62]     Mr Shelton said he would “normally” grow full size plants, but this was an experiment started in 2004, 2005.  He did not accept that the plants for New Zealand Green are big plants.  He said that depended on whether the plants were from the sativa group or the indica group.  He did not agree with Detective Chamberlain that New Zealand Green is sativa.  He said the detective “... is not a grower of cannabis with all due respect to the Police Officer”.

[63]     He confirmed his intention was to grow four to five pounds of cannabis for his own personal use.  He accepted this was at variance with what he told the Police at initial interview, that he would get about forty ounces from the crop.  He claimed he was very disappointed that day when he had inspected and watered the plants.  He agreed he was an addict.  He agreed he did not have any cannabis at the house, but

said that was because he did not have any money, having been recently released on parole and that he “... made do with a few cigars”.

Analysis of the evidence

[64]     Detective Chamberlain gave evidence as an expert.   His credentials, which were set out in his written statement, were taken as read for the purposes of the hearing.  His credentials well established him as an expert in relation to the matters before the Court, essentially cannabis cultivation, yields and market values.

[65]     Detective Reihana as the officer in charge at the scene gave evidence of what he saw and did at Mr Shelton’s address, in particular in relation to the cannabis plot located at the rear of the house.

[66]     Mr Shelton gave evidence of how he formed and grew the cannabis found at the address, and also in relation to his personal consumption of cannabis.  However, he extended his evidence outside these areas, purporting to give expert evidence about the various species or types of cannabis plants and as to current prices, quality and trends in relation to cannabis growing and use.   While Mr Shelton may be regarded as an experienced cannabis grower (and Detective Chamberlain accepted that), he is not an expert.  Apart from lacking the credentials to establish expertise, an expert is required to give fair and impartial evidence and to be an advocate for neither party.  Mr Shelton was clearly an advocate for his own views and his own position in relation to the alleged offending.

[67]     The Crown objected when Mr Shelton purported to give evidence which required expertise, for example in relation to the various types of cannabis.   The objection was properly made.   In matters which required expertise, I prefer the evidence of Detective Chamberlain and reject that of Mr Shelton.

[68]     There were other respects in which Mr Shelton’s evidence was inconsistent and unsatisfactory.

[69]     When the Police arrived at his address on 10 February 2010 he said he expected the plants to yield forty ounces (approximately two and a half pounds) of cannabis head material.  In evidence he said his intention was to grow four and a half to five pounds for his personal use.  He attempted to explain the quantity he gave to the Police as reflecting his disappointment that the crop had not produced any buds. He said he was beginning to think that no buds would form under the restricted growing  conditions  he  had  adopted.    However,  his  evidence  was  that  he  was watering and fertilising the plants on a regular basis and was very concerned that because of the height the plants had reached, his neighbours might detect them and steal his cannabis.  These actions and concerns are inconsistent with the indication he gave to Police that 182 healthy plants would produce only forty ounces of cannabis head.

[70]     Further, Detective Chamberlain said that the plants were healthy, lush and starting to bud.  He said he could see buds starting to form and identified these by reference to one, in particular, of the photographs produced in evidence.  He said the plants could be expected to mature in six to eight weeks to produce the quantities that he estimated, namely 34-45 pounds.    I prefer,  and  accept, the evidence of Detective Chamberlain on this aspect.

[71]     It was Mr Shelton’s evidence that if he had wanted to grow commercially he had plenty of space to do so because he lived on 21 acres of kiwifruit trees and woodland and could have grown a commercial crop in the citrus orchard.  He said the citrus orchard and surrounding bamboo would have provided cover from detection.  If that were so, Mr Shelton could have grown the 182 plants that were on the bank, under the cover of the citrus orchard.   That would have avoided the concern he referred to several times in evidence, about detection of his crop by his neighbours.  Clearly cover from detection was uppermost in his mind.  I consider the stronger inference is that the north-east facing bank where Mr Shelton chose to grow his cannabis crop provided maximum exposure to sun and light for the cannabis plants and because of the steep contours of the bank, also provided cover from detection, whether by neighbours or the Police, for his significant crop of 182 plants.

[72]     Mr  Shelton’s  claim  to  being  an  experienced  cannabis  grower  and  his professed considerable knowledge about cannabis plants and cannabis growing, do not sit comfortably with his claim that this crop was a failed experiment.  He said in evidence that he had previously experimented growing cannabis in bags with one opening.  He considered he could restrict the growth of the plants by growing two plants to a bag.  However, as Detective Chamberlain said, by planting the seedlings in the potting mix bags, they had direct access to the nutrients, and Mr Shelton ensured the plants were regularly watered and supplemented with liquid fertiliser to achieve,  not  only  their  survival  as  he  claimed,  but  their  healthy  and  lush development, as observed and recorded by the Police.

[73]     This was not a bonsai operation as Mr Shelton was at pains to detail in his written statement, but a closely planted cannabis crop, described by Detective Chamberlain as hedgerow style, which Mr Shelton accepted.   However, the close planting did not restrict the growth of the cannabis plants as was apparent from their condition in February 2010.  It only limited the amount of light and air each of the plants could receive compared with plants spaced at two metre intervals, as would be usual for a cannabis crop.  Detective Chamberlain allowed in his calculations for this limitation by assessing the production per plant at three to four ounces rather than up to eight ounces.

[74]     Further, I prefer the evidence of Detective Reihana that the terraces and the planting of the cannabis plants had been formed and done by hand.  It may well be the case that in 2003, as Mr Shelton described, trees were milled and a bulldozer employed to drag logs across the steep bank, but the appearance of the terraces from the photographs and the nature of the planting on the steep contours of the bank as described by Detective Reihana, are more consistent with careful development and preparation by hand, than with casual planting on incidentally formed terraces, as claimed by Mr Shelton.

[75]     In short, I did not find Mr Shelton a credible witness.   I do not accept his evidence that the 182 cannabis plants he was growing were to provide cannabis for his personal use.   The number of plants alone is a clear indication that he was growing a crop for commercial purposes.  I reject his evidence that the significant

number of plants was required because of his growing method which would see each plant restricted to producing one, or possibly two, cannabis heads.   This was a healthy lush crop, nearing maturity.

Conclusion

[76]     I accept the estimated potential yields and values for the prisoner’s cannabis crop as assessed by Detective Chamberlain and set out in [36] and [37] above.  (I note that his evidence as to value was uncontested).   I conclude that the cannabis cultivation carried out by Mr Shelton was for commercial purposes.

[77]     For the reasons given, I am satisfied the Crown has proved these factors beyond reasonable doubt. Sentencing will proceed on the basis of these findings.

[78]     I record that there is no evidence of profits from the sale of the cannabis crop (which is explicable by the fact that on detection it had not reached maturity).  Nor was any paraphernalia directed to commercial profit found in or about the premises. I accept that in the case of Mr Shelton, a significant motivation in growing the cannabis was to provide for his personal needs to meet his self confessed addiction to cannabis.

Note

[79]     Sentencing notes or a summary of facts in relation to the prisoner’s 2006 offending would be helpful.   The prisoner refers to 46 plants; at page 7.   The Crown’s and Mr Hennessy’s submissions refer to 273 plants.

Sentencing

[80]     I confirm that sentencing will take place in the Whangarei High Court at 11 a.m. on Friday 8 October 2010.  Counsel are to file any supplementary submissions not later than 1 October 2010.