The Queen v Anna Jean McPherson

[2000] NZCA 264

IN THE COURT OF APPEAL OF NEW ZEALAND CA 34/00

THE QUEEN

V

ANNA JEAN MCPHERSON

Hearing:	10 April 2000 (at Auckland)
Coram:	Thomas J Heron J Cartwright J
Appearances:	A M Dollimore for Appellant M A Woolford for Crown
Judgment:	10 April 2000

JUDGMENT OF THE COURT DELIVERED BY THOMAS J

1. The appellant, Ms McPherson, pleaded guilty to one charge of possessing cannabis for supply and one charge of cultivating cannabis.  On 18 January this year she was sentenced in the High Court to three years imprisonment on each count, the terms to run concurrently.

2. Ms McPherson has appealed against these sentences on the basis that they are manifestly excessive, inappropriate or both.  Her counsel, Mr Dollimore, strongly argued that the term of imprisonment should be significantly less.  He also, but more faintly, argued for a suspended sentence should the sentence be reduced to two years or less and, perhaps even more faintly, for leave to apply for home detention.

3. In July 1999, Police executed a search warrant at an address in Hunua.  Ms McPherson, then aged 19, lived at that address with a Mr Lewis, aged 27, and a Mr Mackwood-Smith, aged 35.  The Police found 193 cannabis plants in various stages of cultivation.  The sentencing Judge accepted that the operation was in a relatively early stage of development and found that the average height of the plants was only half a metre.  From the age of the plants it appeared that the cannabis cultivation had begun several weeks before the search warrant was executed.  The Police also found approximately 425 grams of dried cannabis at the property.

4. In terms of value, the Judge accepted that, had the plants reached maturity, they would have been worth up to $90,000 on the street.  Mr Dollimore submitted that this figure was inflated.  He argued that “one would expect some natural mortality rate as the plants matured”.  He also pointed to evidence to suggest that at least some of the cannabis would have been consumed by the occupants themselves prior to sale.  While recognising the force of these submissions, we would observe that mortality and consumption rates are necessarily speculative and that, in any event, these factors would not have altered the street value of the crop.  We are inclined to accept, however, that $90,000 is probably an optimistic estimate.  With regard to the dried cannabis, the Judge found that it was worth around $3,800.  Mr Dollimore did not appear to take issue with this estimate.

5. Immediately after the search, Ms McPherson chose not to contact a lawyer and consented to an interview with Police in which she responsibly admitted her involvement.  Her guilty plea was made on the morning of the depositions hearing.  While this plea was not made at the first possible moment, it was still made at an early stage.  Ms McPherson has no previous convictions.

6. In terms of her personal circumstances, Ms McPherson has a seven-year history of substance abuse, apparently starting with a heroin addiction at age 12, which she is said to have overcome, and then cannabis from age 13.  The pre-sentence report indicates that she is still addicted to cannabis.  It appears that her substance dependencies are partially related to her social environment. 

7. Mr Dollimore submitted that there was no evidence in this case that selling had commenced.  Even so, it was common ground that the cannabis had been grown for commercial sale.  The fact that the property was raided a month before sales began instead of the month after should not make a significant difference to the sentence imposed.  We also accept, as we have noted, that the street value of the final crop would probably have been somewhat less than indicated by the sentencing Judge.  We do not accept, however, that this estimate would have made a material difference at sentencing.  Finally, we note Ms McPherson’s age and history of addiction as mitigating factors, but would observe that these factors cannot carry significant weight.

8. This Court has recently devoted considerable attention to the question of appropriate sentences for cannabis possession for supply and cultivation charges.  See R v Terewi [1993] 3 NZLR 62; R v Harris, 27 September 1999, CA 283/99;  R v Fenton, 11 October 1999, CA 247/99;  R v Daley, 9 December 1999, CA 336/99;  and R v Andrews and Devitt, 29 March 2000, CA 505/99, CA 506/99.  Mr Dollimore rightly conceded that, on any view of the precise future value of the crop, this case fell within category two of Terewi, that is, small-scale cultivation for a commercial use.  The starting point for offences in this category is “generally between two and four years but where the sales are infrequent and of very limited extent a lower starting point may be justified” (Terewi, at 65). Other sentencing principles are clear: the principal sentencing aim for such offences is deterrence of others (Terewi, at 66; Harris, at para 17);  the personal circumstances of the offender carry little weight (Terewi, at 66); and a suspended sentence is only justified in truly exceptional circumstances (Andrews and Devitt, at para 8).

9. The main difficulty in this case arises because of the substantial range given to a starting point for category two offending.  The sentencing Judge took the view that the offending was at the top of category two and towards the bottom of category three.  It would appear from the sentence which he imposed that he must have taken a starting point of four years.  We consider that that in all the circumstances this starting point is too high.  For ourselves, we would think that a more appropriate starting point would have been three years.  In our view, the case was not the most serious example of its type.  We accept Mr Dollimore’s submission that the cultivation was not a highly sophisticated operation.  We also accept that Ms McPherson may have been unduly influenced by her older and more experienced companions.  Even taking into account the need for general deterrence we are of the view that three years is as high as could be justified as a starting point.  An appropriate discount is then required for Ms McPherson’s early guilty plea, her co-operation with the Police, and her lack of previous convictions.  We consider that this discount should not have been less than a year.

10. For these reasons we are of the view that the sentence was excessive.  The appeal is allowed.  We quash both sentences of three years imprisonment and substitute a sentence of two years imprisonment on each count, to be served concurrently.

11. We do not consider that this case is different in any exceptional circumstances, such as to make a suspended sentence appropriate.  Neither do we find it necessary in the circumstances of this case to address the issue of home detention.

Solicitors
Meredith Connell, Auckland for Crown