R v Walpole

[2007] NZCA 89

IN THE COURT OF APPEAL OF NEW ZEALAND

CA26/07
[2007] NZCA 89

THE QUEEN

v

CYRUS CHARLES WALPOLE

Hearing:15 March 2007

Court:Robertson, Baragwanath and Venning JJ

Counsel:M J Knowles for Appellant

E M Thomas for Crown

Judgment:21 March 2007 at 3 pm

JUDGMENT OF THE COURT

APPEAL ALLOWED TO THE EXTENT THAT LEAVE TO APPLY FOR HOME DETENTION IS GRANTED, BUT IN ALL OTHER RESPECTS THE SENTENCE IS CONFIRMED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1]       This is an appeal against a sentence of 18 months’ imprisonment on one charge of cultivation of cannabis and one charge of unlawful possession of a firearm.  Leave to apply for home detention was declined.  The sentence followed a defended fact hearing in the District Court at Christchurch.

Background

[2]       On 2 February 2006 the police executed a search warrant at the home of the appellant, his de facto partner and two children.  The police located 25 cannabis plants in a vegetable garden at the rear of the property.  The police also found a plastic shopping bag containing approximately 28 ounces of cannabis leaf (cabbage) and a snaplock plastic bag containing another four and a half grams of cannabis leaf in a locked shed.  A .303 rifle was also in the shed.

[3]       When spoken to by the police the appellant admitted he smoked cannabis but said he did so:  “once a week, just a joint”.  He denied that he had ever sold cannabis but said he had given it away to friends.  The appellant admitted the rifle was his but he said that his firearms licence had lapsed about a year before and he had not got around to renewing it because of the cost.

[4]       The appellant pleaded guilty but did not accept the statement in the summary of facts that the cannabis found at his property was a commercial cultivation.  The matter went to a disputed facts hearing before Judge Crosbie on 11 December 2006.  The evidence of Detective Constable Pritchard and Detective Sergeant McGowan was received by consent.  Detective Constable Pritchard gave evidence of the photographs of the cannabis found at the property.  Detective Sergeant McGowan had spoken to the appellant when the warrant was executed.  In addition, Detective Sergeant Archer, a supervisor in the drugs squad, gave expert evidence about tetrahydrocannabinol (THC), flowering heads and the value of cannabis.  He also gave evidence as to the amount of cannabis required to feed a moderate habit of smoking two to three cigarettes a day.  In his opinion the plants found had been planted at staggered times and were at three separate stages of their growing cycle.  The appellant also gave evidence.  He accepted that he had planted the cannabis but said it was for his own use and that he had just not had enough time to get rid of the plants he did not need. 

[5]       Judge Crosbie did not accept the evidence of the appellant that the cannabis was for his own use.  The Judge found that the operation was a commercial operation falling within category 2 of R v Terewi [1999] 3 NZLR 62 (CA). The Judge accepted it was at the lower end of Terewi and took a starting point of two years’ imprisonment.  He reduced that by six months for the guilty plea.  The Judge declined leave to apply for home detention.

Appellant’s submissions

[6]       Mr Knowles submitted that the sentence was manifestly excessive and that leave ought to have been granted to apply for home detention.  In particular Mr Knowles submitted:

(a)the Judge’s conclusion following the disputed facts hearing that this was a commercial cultivation within category 2 of Terewi was unsafe and should be set aside;

(b)that properly analysed the case should have been regarded as within category 1 of Terewi;

(c)the Judge had excluded further consideration of home detention simply because it involved the cultivation of cannabis for commercial purposes and that was against the direction of this Court in R v Hakiwai CA19/03 30 May 2003.

[7]       Mr Knowles also complained the evidence from the disputed facts hearing was not available, but we are satisfied the thrust of it can properly be elicited from the Judge’s findings.

Decision

[8]       Despite Mr Knowles’ criticism of the Judge’s findings, we are satisfied there was sufficient evidence and information before the Judge for him to have concluded that this cultivation was a commercial cultivation at the bottom end of category 2 of Terewi.  The appellant admitted planting the cannabis plants.  The 25 cannabis plants ranged in size and maturity.  The appellant admitted caring for the plants by fertilising them.  He had topped them to ensure that they were not seen from the neighbouring property.  For the same reason he had erected shade cloth.  Those actions were inconsistent with the appellant’s explanation that he had found the seeds in the shed when he was cleaning it out one day and thought he would “throw some in the garden” and that while quite a few plants had come up he did not have time to do anything with them.  He clearly had time to tend them.  He had time to hide them, fertilise them and take their tops off.

[9]       The suggestion that the plants were for the appellant’s own cannabis use was simply not credible.  The most conservative estimate of potential yield (accepting that it is only potential) set out in the summary of facts was approximately 45 ounces of cannabis plant (head) with a street value of $15,000.  On the expert evidence of Detective Sergeant Archer the potential yield was closer to 200 ounces or $60,000 in street value.  The appellant only admitted to using or smoking one joint a week.  On Detective Sergeant Archer’s evidence a moderate user smoking two to three cigarettes a day might smoke one ounce of cannabis in 28 days.  Put another way, a moderate smoker smoking two to three cannabis cigarettes a day might only need 12 to 15 ounces a year. 

[10]     We are satisfied that it was clearly open to the Judge to find that the appellant’s cultivation was a commercial cultivation at the lower end of Terewi category 2.  It follows that we reject Mr Knowles’ submission for the appellant that the offending was more properly classified as category 1.

[11]     Bearing in mind that the Judge was to sentence the appellant for the firearms offence as well and that the appellant had a relatively recent previous conviction for cultivation, the starting point of two years was open to the Judge.  The discount of 25% to reduce the effective sentence to 18 months was equally available. 

Home detention

[12]     In declining leave to apply for home detention the Judge said at [20]:

Mr Cole said there was no evidence that there were sales from home.  I agree with that.  However, in my view, granting you leave to apply for home detention would only be a matter for consideration if you thought you had an addiction and there was need for residential rehabilitation programme.  I am told that is not the case here.  More significantly, I believe granting you leave to apply for home detention would defeat the two principal issues of sentencing you today.  I have mentioned holding you accountable but the two principal ones are what I have done already which is to denounce your conduct but more significantly than that to deter you and others like you from engaging in this sort of production.  Granting you leave to apply for home detention would defeat that principal purpose of deterrence so leave to apply for home detention is denied.  (Emphasis added)

[13]     Mr Knowles submitted that in coming to that view the Judge had effectively excluded consideration of home detention because the offending involved the cultivation of cannabis for commercial purposes and that such an approach was against the authority of this Court’s decision in Hakiwai.  However, that decision related to s 97(3) of the Sentencing Act 2002 before it was amended on 7 July 2004.  As from that date the emphasis shifted from the Court being directed to grant home detention unless it would be inappropriate, to providing for a discretion to grant leave to apply for home detention only if the Court was satisfied that it would be appropriate to do so.

[14]     Mr Knowles then submitted that the Judge had apparently taken the view that unless the appellant could show home detention was necessary for his rehabilitation it would not be granted.  He submitted that on any view of s 97(3) the Judge should not have fettered the exercise of his discretion in that way.  Mr Thomas conceded that interpretation could be taken from the Judge’s consideration of this issue and if so he could not support it.  Given that concession it falls to this Court to determine whether leave to apply for home detention should have been granted. 

[15]     The issue was recently considered by this Court in R v Paki CA165/05 5 September 2005 where the Court stated at [12]: 

We accept that the declining of leave to apply for home detention is usual in cases involving offending over a period of time and where that offending has occurred in a home environment. This is particularly so in cases of drug offending. The possibility of returning home, to the scene of offending, a relatively short time after conviction, could tend to undermine the deterrent aspect of sentencing in such cases, and detract from the authority of the judicial process in the eyes of the public. But the judicial discretion must not be fettered, even if sparingly exercised in the types of cases we have mentioned.

[16]     In the present case there are factors that support the application for leave to apply for home detention.  The offending, whilst commercial, is at the lower end of commercial cultivation.  Only one count is involved.  In the pre-sentence report it was noted and accepted that the appellant had expressed remorse about the situation in which his offending had placed both him and his family.  He said to the probation officer that the offending had also resulted in a conviction against his partner and that the consequences of the offending were now a significant deterrent to him.  Against that were the proper concerns of deterrence of others and denunciation of the appellant’s conduct.

[17]     Most significantly, counsel has tendered a letter written to him by the appellant’s mother.  It was written after the appellant was dealt with in the District Court and was not available to Judge Crosbie.  The appellant’s mother had been overseas at the time of sentencing and was not aware of her son’s conviction.  The appellant’s mother has confirmed his explanation for the possession of the gun.  We note the Judge considered the presence of the firearm to be an aggravating feature, but the mother’s letter confirms the gun was a gift from the appellant’s father.  The appellant’s mother has also confirmed she would be prepared to have him live with her and her husband if home detention was granted. 

[18]     In the circumstances of this case, and particularly in light of his mother’s support, we are persuaded to grant leave to apply for home detention in this case.

Result

[19]     The appeal is allowed but only to the extent that leave is granted to the appellant to apply for home detention.  In all other respects the sentence is confirmed.

Solicitors:           
Crown Law Office, Wellington