Sherwood v Police

[2017] NZHC 1024

IN THE HIGH COURT OF NEW ZEALAND

HAMILTON REGISTRY

CRI-2016-419-72

[2017] NZHC 1024

BETWEEN

KAREN ANNE SHERWOOD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 May 2017
Appearances:	S McKenna for the Appellant J E Tarrant for the Respondent
Judgment:	16 May 2017
Reasons:	18 May 2017

JUDGMENT OF GORDON J

SHERWOOD v POLICE [2017] NZHC 1024 [16 May 2017]

Solicitors:           Crown Solicitor, Hamilton

Grantham Law, Hamilton

Introduction

[1]                   Ms Sherwood was  convicted  of  one  count  of  cultivating  cannabis  under s 9(1) of the Misuse of  Drugs Act  1975  (the Act)  by  Judge  N  D  Cocurullo  on 21 November 2016 in the District Court at Te Kuiti.1

[2]                   She appeals her conviction on the ground that the evidence was insufficient to support a finding of guilt. At the end of the hearing on 16 May 2017, I gave a decision setting the conviction aside and substituting a charge under s 12 of the Misuse of Drugs Act 1975 for permitting premises to be used for the purposes of cultivation of cannabis. I then convicted and discharged Ms Sherwood. These are the reasons for my decision.

Background

[3]                   On 4 February 2016 the police conducted an aerial operation and observed cannabis on the property occupied by Mr Boles and Ms Sherwood. The police executed a search warrant on the property on the same day.

[4]                   They found nine cannabis plants growing close to the house, 221 cannabis plants in the garden area and 35 in the bottom of a terraced area in another part of the property. The plants were well cared for. The police also found 2.8 kilograms of cannabis plant material and 28 grams of cannabis seeds in the dwelling on the property.

[5]                   Neither Mr Boles nor Ms Sherwood gave evidence. However, Mr Boles had visited the police station to seek return of the plants and noted to one of the policeman that he was a “marijuana grower”.

District Court

[6]                   Judge Cocurullo found Ms Sherwood guilty of cultivation in relation to the nine cannabis plants growing close to the house. The Judge noted that Ms Sherwood had occupied the property for a significant period of time and that the plants were in

1      New Zealand Police v Boles [2016] NZDC 23587.

sight of and close to one of the doors. The Judge was satisfied that Ms Sherwood had knowledge of the nine plants.

[7]                   Judge Cocurullo then inferred from these facts that Ms Sherwood participated in the cultivation of at least the nine plants growing close to the house.2 Ms Sherwood was sentenced to 40 hours’ community work.

[8]                   The Judge also found Mr  Boles  guilty  of  cultivation  in  relation  to  all  265 cannabis plants, possession of cannabis for the purposes of sale and/or supply, and possession of cannabis seeds for the purposes of sale and/or supply.

Substitution of charge

[9]                   The Crown on appeal did not seek to uphold the District Court decision. Instead, the Crown submitted that the Court should exercise its power under s 234 of the Criminal Procedure Act 2011 and substitute a conviction under s 12 of the Misuse of Drugs Act 1975 of permitting premises to be used for the purpose of the commission of an offence against that Act.3

[10]               At the hearing Mr McKenna, appearing for Ms Sherwood who was also present, agreed that the substitution of a charge of permitting premises would be an appropriate course of action.

[11]               I am satisfied that is an appropriate course of action and accordingly I direct that a conviction under s 12 of the Misuse of Drugs Act be substituted for the offence of cultivating.

Sentence

[12]               In the District Court Ms Sherwood was sentenced to 40 hours’ community work. Mr McKenna submitted that, in theory, a sentence of community work might be appropriate. However, the minimum number of community work hours able to be imposed is 40 hours. Mr McKenna submitted that such a sentence would be excessive,

2 At [53].

3      In the District Court the Judge was asked by the prosecution to substitute a permitting premises charge but declined to do so as the appellant was self represented.

bearing in mind that the charge of which Ms Sherwood was convicted carries a maximum of seven years’ imprisonment whereas the substituted charge only carries a maximum of three years’ imprisonment.

[13]               Mr McKenna further submitted that Ms Sherwood was not able to pay a fine, nor would a sentence of supervision be appropriate as Ms Sherwood is not a person with a drug problem. That, he said, left the Court with the option of a conviction and discharge.

[14]               Ms Tarrant agreed that a sentence of supervision would not be appropriate and she did not press for the Court to order Ms Sherwood to pay a fine. She submitted that the appropriate sentence would be 40 hours’ community work in the context of the overall offending. She submitted that a conviction and discharge would not be appropriate given the number of plants growing on the property.

[15]               However, Ms Sherwood is to be sentenced in relation to the nine cannabis plants, not the total number of plants growing on the property. I also acknowledge Mr McKenna’s submission that there were some issues of power and control in the relationship and that Ms Sherwood has no intention of resuming the relationship with Mr Boles once he has completed his sentence of imprisonment.

[16]               When imposing sentence I accepted Mr McKenna’s submission that, having regard to the fact that 40 hours’ community work was the sentence imposed on the charge of cultivating, which carries a maximum of seven years’ imprisonment, it would not be an appropriate sentence in relation to the substituted charge which carries a maximum of three years’ imprisonment.

[17]For all those reasons I convicted and discharged Ms Sherwood.

Result

[18]               There was insufficient evidence to find Ms Sherwood guilty of the charge of cultivating cannabis. I am satisfied that the District Court Judge’s conclusion resulted in a miscarriage of justice as it affected the outcome of the trial.

[19]               The appeal is allowed and Ms Sherwood’s conviction and sentence are set aside.

[20]A conviction under s 12 of the Misuse of Drugs Act is substituted.

[21]The appellant is convicted and discharged.

Gordon J