Smith v R
[2022] NZCA 606
•6 December 2022 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA133/2022 [2022] NZCA 606 |
| BETWEEN | CRAIG GRAY SMITH |
| AND | THE KING |
| Hearing: | 22 September 2022 |
Court: | Gilbert, Brewer and Moore JJ |
Counsel: | A M S Williams and C G Nolan for Appellant |
Judgment: | 6 December 2022 at 9.30 am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Moore J)
Background
Craig Smith was convicted following a jury trial in the Greymouth District Court of one charge of possession of cannabis for the purpose of sale.[1] Judge J D Large sentenced him to seven months’ home detention.[2]
[1]Misuse of Drugs Act 1975, s 6(1)(f).
[2]R v Smith [2022] NZDC 3283 [Sentencing notes].
Mr Smith filed a notice of appeal against conviction and sentence. He later abandoned his conviction appeal. His sentence appeal remains extant. This judgment deals with that appeal.
The offending
On 28 April 2019, police executed a search warrant at Mr Smith’s Greymouth address. They found:
(a)2.3 kilograms of dried cannabis head in Mr Smith’s bedroom, stored in three banana boxes, one shoe box and a freezer bag;
(b)1.8 kilograms of dried cannabis head in the spare bedroom, stored in a purple sports bag;
(c)315 grams of dried cannabis head in the bathroom, stored in a plastic shopping bag;
(d)425 grams of dried cannabis head in the hot water cupboard, also stored in a plastic shopping bag;
(e)10 grams of cannabis head in the lounge, stored in a small zip-lock bag and a yellow shopping bag;
(f)three cannabis buds weighing approximately two grams on a magazine rack in the lounge;
(g)300 cannabis seeds on a computer desk in the lounge, stored in a small plastic canister; and
(h)a set of digital scales adjacent to the desk.
Mr Smith told police that he grew cannabis for personal use to alleviate his chronic back pain. This claim was supported by evidence from Mr Smith’s doctor, Dr Greville Wood.
District Court sentencing
Judge Large noted that the guideline judgment for cannabis cultivation was R v Terewi.[3] While Mr Smith had a “significant amount” of cannabis, the Judge accepted he used it for pain relief.[4] There was no evidence of commerciality.[5] The Judge found himself unable to determine how much was for supply and how much was for personal use. As a result, he took into account personal use as a mitigating factor.[6] He thus assessed Mr Smith’s culpability as between Category 1 and 2 of Terewi, rather than squarely in Category 2.[7] He set a starting point of 21 months’ imprisonment.[8]
[3]At [3], citing R v Terewi [1999] 3 NZLR 62 (CA).
[4]At [6].
[5]At [6].
[6]At [7].
[7]At [9]–[10].
[8]At [11].
The Judge accepted that Mr Smith had medical issues and a “clearly entwined” cannabis addiction.[9] He noted that Mr Smith now has a prescription for medicinal cannabis.[10] The Judge thus applied a discount of 30 per cent.[11]
[9]At [15]–[16].
[10]At [16].
[11]At [19].
Although observing that cannabis “is not seen to be the drug it once was”, the Judge considered that the least restrictive sentence available was one of home detention, taking into account the principles of accountability, denunciation and deterrence.[12] He imposed a sentence of seven months’ home detention.[13]
Approach on appeal
[12]At [20]–[22].
[13]At [23].
This Court must allow the appeal if it is satisfied that for any reason there was an error in the sentence imposed on conviction and a different sentence should be imposed.[14] The focus is on the sentence imposed, rather than the process by which it is reached.[15] The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.[16] To this end the concept of a “manifestly excessive” sentence is well-engrained and there is no reason not to use it.[17]
Issues on appeal
[14]Criminal Procedure Act 2011, s 250(2).
[15]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
[16]At [36].
[17]At [35].
Mr Smith raises two issues on appeal:
(a)whether the Judge erred by adopting a starting point that was too high; and
(b)whether the Judge erred by imposing a sentence of home detention instead of a less restrictive sentence.
Did the Judge err by adopting a starting point which was too high?
Mr Williams, for Mr Smith, first argued that the Judge erred by adopting a starting point that was too high. He submitted that it was not clear that a “significant proportion” of the cannabis found in Mr Smith’s possession was for sale, particularly given the evidence of his medical issues and related reliance on the substance. He thus submitted that Mr Smith’s culpability sat between Category 1 and 2 of Terewi, the appropriate starting point being between 12 and 15 months’ imprisonment.
In Terewi, this Court set out three categories of cannabis cultivation offending.[18] Those relevant to the present case are Categories 1 and 2:[19]
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.
[18]R v Terewi, above n 3.
[19]At [4].
We accept that this Court has previously recognised that Terewi “may require reconsideration given changing social attitudes and the subsequent passage of the Sentencing Act in 2002”.[20] That would necessarily include revisiting the penalties associated with offending within the Terewi categories. For present purposes, however, those categories apply as originally formulated.
[20]R v Smyth [2017] NZCA 530 at [17].
The Judge assessed Mr Smith’s culpability as being between Categories 1 and 2. That categorisation is not criticised. The issue on appeal is the appropriate quantification of the starting point between those categories.
In terms of Mr Smith’s culpability, the Judge was entitled to find that Mr Smith was in possession of a “significant” quantity of cannabis and that some of it was possessed for the purpose of sale. We do not consider that the Judge went so far as to say that a significant quantity was possessed for that purpose. To the contrary, the Judge expressly noted that he was unable to determine how much was for personal use and how much was for supply.
The Judge then observed that possessing a portion of the cannabis for personal use warranted a reduction in the starting point. Taking that into account, he set a starting point of 21 months’ imprisonment. This can be contrasted with R v Bryant, where this Court adopted a starting point of 30 months’ imprisonment for the cultivation of a similar quantity of cannabis in circumstances where there was limited evidence of commerciality, but absent any mitigation for personal use.[21] The starting point for Mr Smith’s offending plainly reflected his personal use being a mitigating factor.
[21]R v Bryant [2009] NZCA 287. See also McColl v Police HC Wellington CRI-2010-443-19, 28 September 2010; Case v R [2010] NZCA 518; and White v R [2010] NZCA 565. In those cases starting points for offenders involved in small scale commercial cannabis cultivation operations ranged between 30 and 36 months’ imprisonment.
Comparison with other similar cases, including those cited by Mr Williams, reveals that the starting point was within the available range:
(a)In Devereux v Police, one of the appellants was found in possession of 110.74 grams of cannabis alongside scales and $3,120 in cash.[22] There could be “no question of the commerciality”,[23] albeit “low level”.[24] Mander J considered a starting point of 18 months’ imprisonment appropriate.[25]
(b)In Mowberry v R, police seized a total of 57 cannabis plants from the appellant’s address.[26] While the appellant purported that it was for personal use, Gendall J agreed with the sentencing judge that the potential yield of cannabis was too great to be only for personal use.[27] Taking into account the “basic” character of the operation and the “very minor” degree of commerciality, Gendall J adopted a starting point of 18 months’ imprisonment.[28]
(c)In R v McGilp, the appellant was found in possession of 201 grams of cannabis, 98 cannabis cuttings and 58 cannabis plants.[29] The appellant’s brother’s diary recorded sales netting about $3,320, although the Judge found that $1,600 worth of sales were “inconclusive”.[30] This Court did not disturb a starting point of “between 15 and 18 months’ imprisonment”.[31]
(d)In R v Maats, one of the defendants jointly possessed 4.4 kilograms of cannabis plant, including more than 1.6 kilograms of pure cannabis head, with her partner.[32] Her involvement was more limited than that of her partner, in that she made fewer sales and used the proceeds to support her children (albeit in a “misguided” manner).[33] Heath J set a starting point of 18 months’ imprisonment.[34]
(e)In R v Coe, the defendant was found in possession of 1.295 kilograms of cannabis head and 198 grams of cannabis leaf.[35] Despite the quantity, there was no real evidence of commercialism.[36] The defendant had admitted that he either gave it away or swapped it for food.[37] Brewer J considered that “in the absence of an intention to make money out of the cannabis”, a starting point of two years’ imprisonment was appropriate.[38]
(f)In R v Te Wake, police found 135 grams and two tinnies of cannabis, 23 grams of cannabis leaf and paraphernalia associated with supply at the defendant’s address and van.[39] He admitted to selling cannabis four times in the three weeks before his arrest and when he was “short of cash”.[40] Andrews J adopted a starting point of 27 months’ imprisonment.[41]
[22]Devereux v Police [2017] NZHC 167 at [6].
[23]At [33].
[24]At [34].
[25]At [36].
[26]Mowberry v R [2012] NZHC 969 at [3].
[27]At [3], [6] and [9].
[28]At [10].
[29]R v McGilp (2006) 23 CRNZ 526 (CA) at [3].
[30]At [3].
[31]At [7] and [19].
[32]R v Maats HC Gisborne CRI-2010-016-1863, 14 December 2010 at [3] and [5]–[8].
[33]At [24]–[25].
[34]At [26].
[35]R v Coe [2012] NZHC 3242 at [6].
[36]At [22].
[37]At [22].
[38]At [25].
[39]R v Te Wake HC Whangārei CRI-2010-088-1139, 7 October 2010 at [2].
[40]At [2].
[41]At [20].
The starting point imposed by the Judge is easily reconcilable with the reasonably broad range of starting points revealed by these cases. Devereux, Mowberry and McGilp generally involved significantly lesser amounts of cannabis than Mr Smith’s offending and a broadly comparable low degree of commerciality. The greater quantity Mr Smith possessed is an indicator of greater culpability. Although the quantity of cannabis in Maats is similar to the present, the starting point was plainly influenced by the fact the appellant played a lesser role in the offending vis-à-vis her partner. A starting point slightly higher than these cases was justified.
Coe involved a similar degree of commerciality but a considerably lesser quantity of cannabis. Mr Smith’s offending is broadly comparable. It is less serious than Te Wake, however, where the defendant made admissions he was selling the product.
It follows we consider that a starting point of 21 months’ imprisonment was within the range available to the Judge. When viewed in conjunction with the reasonably generous 30 per cent discount Mr Smith received for health and addiction issues, it certainly cannot be said that the end sentence was manifestly excessive.
This ground of appeal must fail.
Did the Judge err by imposing a sentence of home detention instead of a less restrictive sentence?
Mr Williams’ second argument was that the Judge erred by imposing home detention instead of a less restrictive sentence. He submitted that the principles of denunciation and deterrence were not properly engaged in this case. In his submission community detention or intensive supervision is the appropriate sentence.
In Palmer v R, this Court explained that:[42]
… there is nothing in the Sentencing Act 2002 to suggest a presumption for or against commutation, either generally or for particular types of offence. The decision calls for the case by case exercise of judgment against the statutory principles and purposes of sentencing. Those principles and purposes sometimes point, as here, in opposing directions, meaning that the sentencing judge is called upon to assess whether home detention can respond adequately to the seriousness of the offending. As the Court explained in R v D (CA253/2008), it can be very difficult in a marginal case to articulate reasons for preferring one approach to another. In consequence, the margin of appreciation extended to sentencing judges is usually significant.
[42]Palmer v R [2016] NZCA 541 at [19] (footnotes omitted).
Here the Judge considered that the least restrictive sentence available was one of home detention. In so determining, he took into account the need to hold Mr Smith accountable, to deter him and others from similar offending and to denounce his conduct.
We consider that a sentence of home detention was within the margin of appreciation available to the Judge. Although Mr Smith cultivated cannabis for personal use, the quantity involved here makes personal use an implausible explanation for all that was found in his possession. In finding him guilty, the jury necessarily determined that at least some of what he possessed was for sale. Deterring others from cultivating such significant quantities of cannabis with the intention of selling it and denouncing that conduct are relevant factors in the sentencing analysis. The restrictive nature of home detention gives effect to those principles. It also appropriately recognises Mr Smith’s rehabilitative needs, particularly with the post-release conditions imposed.
It follows, in our view, that the Judge was not wrong to impose a sentence of home detention.
We also note in this context that Mr Smith will have served his sentence of home detention by the time this judgment is issued. Mr Williams accordingly accepted that this aspect of the appeal was essentially academic, save for Mr Smith being subject to post-release conditions as part of his sentence of home detention.[43] Those conditions are to assist in Mr Smith’s rehabilitation, and we see no reason to substitute a sentence which would have the effect of quashing them.
[43]The conditions are to attend an assessment for alcohol and drug counselling as directed by a probation officer, and to attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a probation officer. See Sentencing notes, above n 2, at [24].
This ground of appeal is also dismissed.
Result
The appeal against sentence is dismissed.
Solicitor:
Crown Solicitor, Christchurch for Respondent
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