The Queen v Butters

[2007] NZCA 65

IN THE COURT OF APPEAL OF NEW ZEALAND

CA273/06

[2007] NZCA 65

THE QUEEN

v

ANDREW DONALD BUTTERS

Hearing:5 March 2007

Court:Ellen France, John Hansen and Williams JJ

Counsel:V Nisbet for Appellant

S B Edwards and K Laurenson for Crown

Judgment:14 March 2007 at 3 pm

JUDGMENT OF THE COURT

A         The appeal against sentence is allowed. 

BThe sentence of six years imprisonment is quashed and in its place a sentence of three years imprisonment is substituted.  The cumulative sentence of two years imprisonment is quashed and in its place a sentence of six years imprisonment is substituted.  The sentences are to be served concurrently.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]       The appellant was sentenced by Fogarty J on 12 July 2006 to an effective sentence of eight years imprisonment.  That term was comprised of six years imprisonment on one count of cultivating cannabis (the “Mill Road” cultivation) and a cumulative term of two years imprisonment on a second count of cultivating cannabis (the “Pioneer Park” cultivation).

[2]       The appellant appeals against sentence primarily on the basis that the sentence is manifestly excessive. 

Factual background

(i)       The Mill Road cultivation

[3]       On 8 November 2005, Police discovered two areas of cannabis cultivation near the appellant’s home.  In all, there were some 493 cannabis seedlings in prepared cannabis plots or in seed trays.  The plots were fertilised and slow-release fertiliser materials were found in the appellant’s home.

[4]       Police estimate that if all the seedlings had reached maturity (two metres in height), the value of the plants would have been approximately $493,000. 

[5]       The appellant pleaded guilty to this offending after depositions.

(ii)       The Pioneer Park cultivation

[6]       Pioneer Park, South Canterbury, is a forestry block and camping area.  On 31 January 2006 Police found two motor bikes in scrub in the Park. There were 98 discarded cannabis seedlings near the bikes. Later, on 4 February 2006, Police located four cannabis plots in the Park.  Some 120 plants were found some of which had reached one metre in height.

[7]        Following his arrest in relation to the Mill Road cultivation, the appellant was released on bail.  Whilst on bail, the appellant and his co-offender, Noel King, were seen on 28 April 2006 on a video surveillance camera stripping leaves off cannabis plants at the Pioneer Park cultivation.  Both offenders were wearing balaclavas. Ninety eight plants had been stripped of their leaves when Police checked the plots later, on 1 May 2006.  At the offenders’ address, evidence of cannabis having been dried was located but not of bulk cannabis.

[8]       The appellant and his co-offender both pleaded guilty. The appellant’s plea was an early one.  The matter was remitted for sentence in the High Court.

Sentencing remarks

[9]       Fogarty J sentenced the appellant on the basis a deterrent sentence was necessary.  That was, in large part, because the appellant had been given a lenient sentence (three years imprisonment) in 2003 for similar offending and had been warned at that time that he had to take the opportunity given to set himself straight.  The recidivist nature of the appellant’s offending was also seen as an aggravating feature.

[10]     The Judge said a starting point of 12 years, that is, six years for each of the offences would have been appropriate but took the view the end point should be eight years imprisonment.  In reaching that view, Fogarty J treated this as commercial cultivation of a substantial size.

[11]     The appellant’s co-offender, Mr King was sentenced to a term of two years imprisonment with leave to apply for home detention.  That term recognised Mr King had family responsibilities, had not previously served a prison term, and that rehabilitation was a prospect for him.

Submissions on appeal

[12]     The appellant makes two principal submissions.  The first is that there has been no credit given for the guilty pleas and the sentence is manifestly excessive on that account.  The second submission is that the Judge has adopted a starting point which has treated the offending as more serious than it was.  At best, Mr Nisbet for the appellant says, this offending was at the top of category two of R v Terewi [1999] 3 NZLR 62 (CA) i.e. small-scale cultivation for a commercial purpose warranting starting points between two and four years. Mr Nisbet emphasises in this context the absence of any particular sophistication in the enterprise and that the value ascribed to the Mill Road cultivation reflects a 100 per cent strike rate, that is, it assumes that all of the plants were capable of producing plant material suitable for consumption and that all of the plants reached maturity. Mr Nisbet also submits that, given the timing, the second (Pioneer Point) cultivation may have been the completion of an existing cultivation rather than a new one.

[13]     For these reasons, the appellant submits that an end sentence of between five and six years imprisonment was appropriate.

[14]     The appellant in written submissions made an argument based on disparity with the term of two years imprisonment imposed on his co-offender, Mr King.  That submission was not pressed in oral argument and we see no merit in it.  The factors identified by the Judge explain the differences in sentencing outcomes.

[15]     The Crown submits that, given the aggravating features identified by the sentencing Judge and, particularly, the need for personal deterrence, the final sentence was not manifestly excessive.  In this respect, Ms Edwards points out that the appellant has seven previous convictions for cannabis cultivation and has been sentenced to imprisonment on four separate occasions, the longest sentence prior to the present being five and a half years imposed on him in June 1999.  Ms Edwards submits that this offending was appropriately categorised as within the bottom of category three of Terewi, i.e. large-scale commercial growing “usually with a considerable degree of sophistication and organisation” warranting a starting point of four years or more: Terewi at [4].

Discussion

[16]     The Crown accepts that the sentence has not been reached following the now orthodox route, namely, fixing (and articulating) a starting point having made an assessment of the offending, including any features which added to or reduced the seriousness of the conduct and the criminality involved (R v Taueki [2005] 3 NZLR 372 (CA)) and that neither has there been any articulation of the discount for the guilty pleas. We are unable to accept the Crown submission that the final sentence is, nonetheless, within the available range.

[17]     The Judge must have taken a starting point of at least ten years.  Notwithstanding that the level of recidivism called for a stern response, we are satisfied that such a starting point was manifestly excessive.  Assuming that the Judge assessed the offending at the bottom of category three in Terewi, it involved, on the worst case scenario, mid-level sophistication.  It was an outdoor enterprise, not hydroponic.  There was no evidence of any particular care being taken to protect the crop (apart from its isolation) such as fencing or protection from the elements.  While the Pioneer Park cultivation involved a fairly high success rate in terms of the yield (leaves stripped from about 80 per cent of the plants), the value ascribed to the Mill Road cultivation should have been treated as reflective of the potential value of that cultivation.  Ms Edwards’ submission that she had been unable to locate any comparable case attracting a similar length of sentence is also relevant.

[18]     As Ms Edwards says, it is also difficult to find other cases involving the same level of recividism as shown here.  There was plainly a need for personal deterrence.  However, the sentence imposed still had to reflect the level of offending involved and, as well, a discount for the guilty pleas.

[19]     In our view, an appropriate starting point for the offending was six and a half years with a further 18 months added on for personal aggravating features.  With a discount for the guilty pleas from that eight year period, the appropriate end sentence is six years imprisonment.

[20]     There are a variety of ways in which the sentences could now be reconstructed.  However, we do consider that the Pioneer Park cultivation was the more serious of the charges.  It involved offending whilst on bail and a high percentage of the plants involved had reached maturity.  The sentence imposed should reflect this difference in seriousness.  For this reason, we take the view both sentences should be quashed and that the six year term should be substituted for the two year term imposed in relation to Pioneer Park.  A concurrent three year term should be substituted for the six year term.  We add here that the appeal was based on the six year term but, as the appellant acknowledges, the matter does have to be dealt with in the round to reflect the totality of the offending.

[21]     We do not impose any minimum period of imprisonment.  Although a minimum term had been sought by the Crown at sentencing, Ms Edwards did not press for this.  In our view, there is no reason now to depart from the Judge’s conclusion that a minimum term was not necessary. 

Result

[22]     For these reasons, the appeal against sentence is allowed. The sentence of six years imprisonment is quashed and in its place a sentence of three years imprisonment is substituted.  The cumulative sentence of two years imprisonment is quashed and in its place a sentence of six years imprisonment is substituted.  The sentences are to be served concurrently.

Solicitors:

Crown Law Office, Wellington