The Queen v Christopher Gerrard McMullan
[2002] NZCA 139
•20 June 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA234/01 |
THE QUEEN
V
CHRISTOPHER GERRARD MCMULLAN
| Hearing: | 12 June 2002 |
| Coram: | McGrath J Williams J Salmon J |
| Appearances: | H S Edward for Appellant K Raftery for Crown |
| Judgment: | 20 June 2002 |
| JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J |
Appeal
On 22 June 2001 the appellant, Mr McMullan, was sentenced to five years imprisonment following his pleading guilty to one count of cultivating cannabis plant. This judgment deals with his appeal against that sentence on the basis that it was manifestly excessive.
Facts
On 28 November 2000 the police executed a search warrant at Mr McMullan’s rented premises in Rotorua. He was absent but there was a strong smell of cannabis coming from the house and the police entered the premises and found what their summary of facts described as a “highly sophisticated cannabis growing operation in every bedroom, the bedroom en suite, and every cupboard within the bedroom”. The walls and windows were lined with foil and black polythene. There were 10 large cannabis plants about 1.7 metres in height ready for harvesting in the main bedroom; another 10 plants about 1.4 metres in height nearly ready for harvesting in the second bedroom, with seven additional plants about 1 metre high, well groomed and ready for transplantation in a wardrobe. A third bedroom contained another 12 plants between .5 and .2 metres in height. In the first and third bedrooms the police discovered 104 and 56 cannabis seedlings respectively, all about 100 mm tall, and all of which had been cloned from mother plants.
There were 45 cannabis seeds carefully wrapped in the kitchen.
The premises also yielded a deal of cannabis growing equipment including over a dozen light bulbs, fans, electronic timers and transformers, plant and food growth enhancers, and large pot plant containers.
There was 214 grams of dry cannabis in a rubbish bag in a wardrobe and, found in the lounge, pipes for smoking cannabis and about one ounce of cannabis.
The appellant faced only the one charge of cultivating cannabis plant but the utensils, seeds, dry cannabis and cannabis smoking equipment are relevant to the factual dispute discussed later.
The information was laid on 30 November 2000 and after several adjournments Mr McMullan pleaded guilty on 5 March 2001 pursuant to s 153A Summary Proceedings Act 1957. He came before Spear DCJ in the District Court at Rotorua on 4 April but the learned District Court Judge declined jurisdiction to sentence on the basis of his tentative view that, even accepting Mr McMullan’s view of the facts, the appropriate sentence exceeded one year’s imprisonment having regard to the previous convictions, the size of the operation and its possible worth.
The District Court having declined sentencing jurisdiction, Mr McMullan came before the High Court on 18 May 2001. At a disputed fact hearing the learned Judge heard evidence from two police officers and Mr McMullan as to whether the appellant should be regarded as coming within category 2 or category 3 in R v Terewi [1999] 3 NZLR 62. Although the Judge heard submissions from counsel on that occasion, there was insufficient time for her to sentence Mr McMullan and she accordingly adjourned the sentencing by consent to 22 June 2001, having indicated her view that Mr McMullan’s case fell within category 3 and invited further submissions in light of that indication. None were received.
Sentencing
In her notes on sentencing, the Judge reviewed the evidence of an experienced police officer that each of the 20 mature cannabis plants would yield $1200-$2400, particularly at the time of year the search was undertaken. And if the 160 seedlings had matured the potential value for the total crop would be in the range of $249,000-$384,000. The evidence was that an indoor cannabis operation of the type operated by Mr McMullan could produce eight crops a year, thus giving a potential annual yield in the vicinity of $2 million-$3 million before possible plant failures. After taking account of that possibility, the crop’s worth was estimated at something of the order of $800,000 per annum.
The Judge then recorded Mr McMullan’s evidence as to his drug addiction and his assertion that he was growing the initial crop of cannabis for his personal use. He claimed the equipment in the house had all been lent to him by another person on the basis that all the cannabis grown in later crops should go to the other person as compensation for providing the equipment while Mr McMullan would retain only the yield from the 20 mature plants found by the police. Mr McMullan estimated the yield at only 2-3 ounces per plant with a value of $12,000 in total. The Judge also recorded Mr McMullan’s evidence that the house was rented to grow a single crop, thus leaving Mr McMullan with enough cannabis for his own use for 12-18 months at an ounce a week and his evidence that even at 3-4 crops per annum the operation would yield less than $70,000.
After reviewing the police evidence that this was a continuing and sophisticated operation designed to be used more than once against Mr McMullan’s evidence that this was a first time growing operation for him, the Judge held that the suggested arrangement between Mr McMullan and the unnamed other person was “highly unlikely given the size, sophistication and quality of the operation”. She preferred the police evidence that this was a continuing operation with good quality crop, having the potential value the experienced officer had given in evidence. She rejected Mr McMullan’s explanation for the operation as “inconsistent and improbable” and held that the cannabis growing operation he was conducting was a commercial one of “considerable sophistication and scale”.
After reviewing authorities collected in the appendix to Terewi and Mr McMullan’s previous convictions, his early plea and other mitigating factors the Judge concluded:
I have found that this was a sophisticated, on-going commercial operation capable of producing 6-8 crops per annum on an on-going basis with an annual yield in excess of $800,000, viewed from the most conservative perspective, and potentially $2m-3m per annum. I take the length of the offending on the evidence before the Court to be limited to 4 months. Mr McMullan’s criminal record is a sad reflection of his abuse of drugs and alcohol, and is an aggravating feature. I adopt a starting point of 7 years imprisonment. From that I deduct 2 years for the early guilty plea, to reach a sentence of 5 years’ imprisonment.
Submissions
At this hearing Mr Edward, counsel for Mr McMullan, accepted that the appellant’s offending fell within category 3 of Terewi, but took issue with the crop valuation evidence suggesting that it was speculative given that Mr McMullan had been in the house for four months only and had not yet harvested the crop. Mr Edward contended for a very much lower annual value than that accepted by the Judge, and made submissions as to the uncertainty of such things as rotation, frequency, value at maturity and forward projections of street worth in support of a submission that the sentencing Judge was in error in reaching her conclusions. Mr Edward repeated Mr McMullan’s evidence that he was to receive one crop and thereafter hand the operation to others. Mr Edward submitted that the learned sentencing Judge should have analysed the cases in the Terewi appendix more thoroughly and submitted that the most comparable was R v Smith (23 March 2000 CA562/99), an unsuccessful appeal to this Court against a sentence of four years’ imprisonment following guilty pleas on two counts of cultivation of cannabis and other drug charges. That was a large-scale commercial cannabis-growing operation utilising hydroponic cultivation in two warehouses holding a total of 211 mature plants, 95 seedlings and 30 dried plants, with an annual turnover of approximately $216,000 depending on crop failure, yield, market conditions and the like. This Court accepted that the Judge was correct to take a starting point of five years’ imprisonment and deduct one year for the guilty plea though recognising that may (para [7] [ 4) “appear high” after reference to this Court’s decision in a very much larger and more sophisticated cultivation case (R v Daley 9 December 1999, CA335, 336 and 337/99).
In light of those authorities, Mr Edward submitted that the Judge’s starting point of seven years was too high in the circumstances and the appropriate starting point should have been five years with a deduction of 12-18 months for Mr McMullan’s co-operation, his plea, his early apprehension, the fact that he faced a single charge, the assertion that he was not the owner of the equipment, and his personal circumstances against which were to be set his previous convictions for drug offending and the sophistication of the operation.
For the Crown, Mr Raftery submitted that the Judge took all relevant factors appropriately into account. However, whilst acknowledging that the learned Judge set too high a starting point, he submitted that the credit allowed for the guilty plea was overly large and that the final sentence of five years was appropriate.
In relation to the disputed fact hearing, Mr Raftery submitted that it was clear that, although he had pleaded guilty and now accepted his offending was in category 3 of Terewi, Mr McMullan had presented his case in the High Court in a way designed to attract maximum credit despite his plea. Mr Raftery pointed to Mr McMullan’s evidence that his cultivation was a “oncer” because he had merely set up the operation at another’s instigation, his contention for a very much lower crop value, thus leading to a category 2 finding, and his evidence that all the cannabis coming to him was for his own pain relief. There was no element of remorse or recognition of a need to cease this type of offending. In support of those submissions, Mr Raftery pointed to Mr McMullan’s previous history which, amongst a lengthy list, included convictions for possessing cannabis in 1995 and 1996 (two counts) and imprisonment for a total of 18 months in 1992 for cultivating cannabis (two counts) and possessing cannabis plant for supply.
Discussion and Result
Having considered those submissions carefully and reflected on the facts of the case we accept the submission that the sentencing Judge set the starting point too high. Although this was a serious case involving a considerable degree of premeditation, planning and sophistication - 48 mature plants and 160 seedlings, to say nothing of the seeds and the cannabis-growing equipment - and although it was indubitably a case well into Terewi category 3, it was not, in our view and with respect, of such seriousness as to warrant a starting point of the maximum term applicable. That said, there was ample justification for the Judge, having heard evidence on the disputed facts, to take the view that this was a continuing commercial operation likely to produce good quality crop of considerable value on a continuing basis. In those circumstances, in our view, the appropriate starting point for sentencing would have been at least five years.
There were few mitigating factors beyond the guilty plea, particularly after the learned sentencing Judge’s findings on the disputed facts. And there was a certain degree of force in Mr Raftery’s submission that the attitude adopted by Mr McMullan at that hearing suggested the guilty plea may have been entered for strategic reasons. In any event, given the facts, conviction was inevitable. It was not entered at the earliest stage although it saved the cost of trial. In those circumstances no major reduction in the sentence for the guilty plea and the other mitigating factors would have been justifiable.
In all the circumstances, and having regard to decisions such as Smith, in our view the appropriate sentence for Mr McMullan was one of four years’ imprisonment. His appeal will accordingly be allowed and a sentence of four years’ imprisonment substituted for that imposed.
Solicitors
H S Edwards, Rotorua, for Appellant
Crown Solicitor, Auckland
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