The Queen v Chapman

[2007] NZCA 225

IN THE COURT OF APPEAL OF NEW ZEALAND

CA170/07
[2007] NZCA 225

THE QUEEN

v

TONY ALLAN CHAPMAN

Hearing:22 May 2007

Court:William Young P, Baragwanath and Heath JJ

Counsel:Appellant in person

D La Hood for Crown

Judgment:5 June 2007 at 2 pm

JUDGMENT OF THE COURT

A        The application for leave to appeal is granted.

BThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Baragwanath J)

[1]       The appellant was found guilty by a jury of having cannabis plants in his possession for the purpose of sale, but not guilty on a charge of possession of morphine for supply.  Earlier he had pleaded guilty to a charge of cultivating cannabis.  He applies for leave to appeal out of time against the sentence of 21 months imprisonment and special conditions that he undertake an alcohol and drug assessment and any other treatment, counselling or programme directed by the probation officer and the refusal of leave to apply for home detention.

[2]       Because the delay was short and the appellant is self-represented the Crown does not oppose the grant of leave to appeal but submits that the appeal should be dismissed on its merits.

Background facts

[3]       The police executed a search warrant at the appellant’s flat in Christchurch and found that two rooms had been converted for the purposes of growing cannabis.  In the bathroom 20 plants between 55 and 85 cms in height were growing under two lights and a fan was circulating air around the room.  Outside the bathroom were six smaller cannabis plants in buckets.  In a room off the kitchen 18 plants between 40 and 80 cms in height were growing under two lights.  There was again a fan to assist cultivation.  The size differential indicated a plan to ensure continuity of supply.  Four buckets contained stalks which had had cannabis heads cut off.  In the living room the police found a bag of cannabis containing three cannabis “tinnies”, three snaplock bags containing cannabis head, two large bags containing cannabis head and a set of scales.  There were further bags of cannabis leaf on the coffee table and in the hot-water cupboard.  There was also a shoebox containing cannabis leaf.  Altogether there were 38 large cannabis plants, six smaller plants and some 50 g of loose cannabis scattered throughout the house. 

[4]       The appellant admitted to the police that he was growing cannabis in the two rooms.  He said it was for his own consumption and denied selling it although said that he would give it away in exchange for dog food or pork.  Such dealing, that is the exchanging of ownership or control of the substance in return for something else of value, is in law a sale. 

[5]       The appellant was 41 years of age at the time of his offending.  For many years he has had a substance addiction for which he had previously completed the Queen Mary programme at Hanmer Springs.  His 29 previous convictions include one in January 2002 of cultivating cannabis and possession of cannabis seeds for which he was fined a total of $800. 

[6]       Judge Erber placed the case beneath the second category in R v Terewi [1999] 3 NZLR 62 (CA) which requires the imposition of imprisonment for a term of two to four years. The Judge found no particular aggravating features, other than the previous conviction nor mitigating features except perhaps that some of the cannabis was for personal use. As for home detention the Judge observed that the cultivation had taken place in the appellant’s home. He considered (at [12]):

… it would send a very bad message to members of the community to know that a dealer in cannabis, whether by barter or sale, was to be allowed home detention.

Grounds of appeal

[7]       The grounds of appeal are that:

a)the sentence was manifestly excessive;

b)leave to apply for home detention should have been granted;  and

c)the special conditions relating to alcohol and drug counselling including any programme that might be ordered were unjustified.

[8]       The complaint about special conditions cannot be sustained in light of the appellant’s prolonged drug addiction.  We deal next with home detention.

Home detention

[9]       In R v Paki CA165/05 5 September 2005 this Court said 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.

[10]     In R v Wilmshurst CA152/06 15 June 2006 this Court stated at [7]:

Leave to apply for home detention may only be granted if the Court is satisfied that it is appropriate, taking into account the nature and seriousness of the offence, the circumstances and background of the offender and any relevant matters in the victim impact statements (the latter matter has no application in the present circumstance). The Court’s role is to sift out those cases where it is clear that home detention is not relevant, and whilst the threshold is not to be set too high, in cases where home detention is clearly inappropriate and not viable, leave should be refused. 

(Emphasis in original)

The grant of leave in that case turned on the appellant’s good character and availability of a job if home detention were granted together with good rehabilitative prospects. 

[11]     In this case the pre‑sentence report records that addiction to substances is an essential factor in the appellant’s offending.  He told the probation officer that he has managed to stop using intravenous drugs and alcohol although he had been smoking cannabis on a daily basis.  He said he was keen to eliminate all drugs from his life but would need assistance to do so.  A shoulder injury had prevented him from undertaking the heavy labouring work to which he is accustomed and that unemployment has led to a feeling of depression.  In his submissions in support of the appeal he said that he has worked all his life, except for the last three years when he has been undergoing operations, and that he has been offered two jobs from former employers when he is released.  He seeks the opportunity to get back to work again and start a new life of which he can be proud.

[12]     The Judge’s reasons for declining home detention may be succinct: R v Barton [2000] 2 NZLR 459 (CA), although they must explain the basic reasoning process: R v Husband (2000) 18 CRNZ 229 (CA).  We consider that the reasons given by the Judge – both cultivation and dealing were being performed from the appellant’s home – coupled with the appellant’s list of previous convictions and relatively recent conviction for cultivating cannabis justified the Judge’s decision. We confirm the refusal of leave.

Term of imprisonment

[13]     The sentence is below the Terewi range.  By selecting a term of 21 months the Judge made some allowance for the fact that the sales were of limited economic significance, an approach which is broadly consistent with what is said in [12] of Terewi, namely that a starting point of less that two years is possible where sales are infrequent and of very limited extent.

[14]     Given the prior offending the term was well within the range available to the sentencing Judge.

Decision

[15]     Leave to appeal is granted but the appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington