The Queen v Christopher Ross Jury

IN THE COURT OF APPEAL OF NEW ZEALAND

CA148/02

THE QUEEN

CHRISTOPHER ROSS JURY

Hearing:	16 October 2002
Coram:	McGrath J Baragwanath J Salmon J
Appearances:	PA Williams QC and DCS Reid for Appellant AE Kiernan and CB Wilkinson-Smith for Crown
Judgment:	31 October 2002

JUDGMENT OF THE COURT DELIVERED BY SALMON J

On 6 March 2002 the appellant was convicted after trial before a jury on three counts of cultivation of cannabis covering the period 1 July 1994 to 24 March 1999, two counts of selling cannabis over the same period and 25 counts of money laundering covering a period from 1 September 1995 to 3 February 1999 and involving a total sum of $356,571.30.
On 17 April 2002 he was sentenced to a total of six years imprisonment, a fine of $400,000 and an order to contribute $100,000 towards the costs of the prosecution. The sentence was imposed on the offences of cultivation and sale. No additional penalty was imposed in respect of the money laundering convictions. He was convicted and discharged in relation to those.
The appellant appeals against that sentence on the grounds:
[a]That the overall sentence was manifestly excessive.
[b]That the fine and order for costs were manifestly excessive, both in themselves and when added to the imprisonment.
His partner, Daniela Krumm, was convicted on one count of money laundering involving $100,000 which was moved to a German bank account and then later brought back to New Zealand.

Background

On 24 March 1999 the police executed a search warrant on a farm “run off” owned by Mr Jury on Stockman Road, Tikorangi. They located approximately 530 mature plants in a swede and kale feed crop. They located a further 59 mature plants in a bush and scrub area on the property. Mr Jury’s home was searched. $7,100 in cash was found located in his freezer, and magazines relating to cannabis cultivation were found under his bed.
A financial investigation was undertaken for the period 1 July 1994 to 24 March 1999. Unidentified income of between $660,000 and $738,000 was found to have been received by Mr Jury which could not be attributed to legitimate farming income. The money laundering charges related to attempts by Mr Jury and Ms Krumm to conceal the cash received from the selling of cannabis by various business and banking transactions.
Mr Jury has previous convictions for the cultivation of cannabis. In 1971 he was convicted of cultivating approximately 163 plants and fined $1,500. In 1976 he was convicted of cultivating approximately 1,500 plants and sentenced to six months imprisonment and in 1979 he was again convicted for the cultivation of cannabis involving approximately 300 plants. On this occasion he received a sentence of two years imprisonment.

The Sentencing Judge’s Remarks

The Judge noted that in convicting him the jury was satisfied that the appellant’s operations of cultivating and selling cannabis covered a period of four years from July 1994 to March 1999 and was also satisfied that he had attempted to hide the proceeds of his activities. He correctly expressed his task as to pass a sentence commensurate with the appellant’s overall criminality as found by the jury.
The Judge said that so far as the crop found in 1999 was concerned he proposed to sentence on the basis that it would have been likely to realise somewhere in the region of $200,000 to $250,000. He noted evidence indicating that in respect of the larger plot, reasonably sophisticated steps had been taken to ensure the growing of the cannabis would be invisible from the air. He referred to the fact that the operation extended over a number of years and on a substantial scale. He noted the previous convictions and the fact that the appellant had obviously learned nothing from those sentences. He rejected a request from the Crown to take into account the possibility of gang involvement. He said that he did not attach a great deal of weight to the previous convictions because they happened so long ago, but that they did indicate that the appellant must have been well aware of the risk that he took when he entered into the activities in respect of which he was convicted.
When he came to impose sentences he expressly put aside any question of orders under the Proceeds of Crimes Act 1991 or any issue as to the state of the appellant’s health.

The submissions in this Court

Mr Williams QC, for the appellant, submitted that although pursuant to s 26 of the Criminal Justice Act 1985 the Court had a general discretion to impose a fine in addition to imprisonment, it was not required to do so and that there should be clear reasons for imposing both forms of penalty. Mr Williams emphasised that the amounts involved in this offending were large, but were not at the top of the range and that the appellant would be required to make full reparation for his gains under the provisions of the Proceeds of Crimes Act 1991.
He submitted that the fine and costs order was out of proportion to the seriousness of the offending when considered in totality with the sentence of imprisonment. He submitted that the total penalty amounted to a crushing sentence and he referred to R v Mahoni (1998) 15 CRNZ 101 where this Court noted that crushing sentences not in keeping with the offender’s record and prospects should be avoided.
As to the appropriate sentence, he referred in particular to R v McCormack (CA180/94, 23 November 1994) where cannabis valued by the police at $495,000 was found. Mr McCormack’s activities had extended over a period of some eight years. He was sentenced to four years imprisonment and a fine of $200,000.
Mr Williams emphasised that there were no aggravating features such as the presence of firearms and that the appellant was an outstanding man and an excellent farmer. He referred to medical reports which he said indicated the possibility of the appellant having a heart condition.
For the Crown, Mrs Kiernan, submitted that the total sentence was justified and that it was clear that the Sentencing Judge regarded the fine as part of the punishment and quite separate from the issue of reparation. She submitted that if there had been no fine, at least another two or three years imprisonment would have been justified in the circumstances of this case.

Consideration

The task for the Court is to determine the appropriate sentence for the offending. The Court may impose a fine as well as a prison sentence provided that the combination of the two reflects the overall criminality of the offending. What is not permissible is to impose a prison sentence which, on its own, would be appropriate for the offending and then to impose in addition to that, a fine. The principles to be applied have been discussed by this Court in cases such as R v Briggs (CA323/84, 9 May 1985) and R v Bartley (CA282/93, 20 October 1993). Those cases provide authority for the propositions that the Court must have regard to the total penalty imposed on the offender and that the total penalty must be such as is appropriate in all the circumstances. In R v Briggs McMullin J in delivering the judgment of the Court said:
Moreover, in fixing the amount of a fine where a sentence of imprisonment is also imposed, the Court must have regard to the total penalty imposed on the offender. A sentence of imprisonment, which is in itself appropriate, may become excessive when accompanied by a fine and a fine, proper in itself, may likewise become excessive when accompanied by imprisonment.
In R v Bartley the Court said in relation to the imposition of a fine:
This does not involve setting any kind of scale by which a money value is put on a period of imprisonment. That would in any event be impossible, because the burden of a monetary penalty will vary according to the circumstances of the particular offender. There can be situations where the burden of imprisonment can also vary from one offender to another. What is required is simply an exercise of the Court’s judgment as to what is an appropriate total penalty for the particular offender, taking into account his means and ability to pay as required by s 27 [of the Criminal Justice Act 1985], and all the relevant circumstances.
A convenient starting point is to consider what term of imprisonment would have been appropriate had this been the only sentence imposed. Recent sentences of this Court in R v Terewi [1999] 3 NZLR 62, R v Smith (CA.562/99, 23 March 2000), R v Pure (CA359/00, 20 February 2001), R v Gemmell (CA271/01, 23 October 2001) and R v McMullin (CA234/01, 20 June 2002 suggest that a starting point of five years for cannabis cultivation involving in the order of 200 to 400 plants, is appropriate. The sophistication of the operation will always be a relevant factor and indoor cultivation has been regarded as an aspect of sophistication.
The heaviest penalty imposed by this Court for cannabis cultivation was in R v Daley (CA335/99, 9 December 1999). That was a Solicitor-General’s appeal. The Court of Appeal increased the penalty imposed on the principal offender to seven years imprisonment after deducting 18 months for mitigating factors. The Court held that the appropriate starting point for cultivation in that case was six and a half years and agreed that a cumulative sentence of two years imprisonment for selling, was also appropriate. Daley was a case of a highly sophisticated hydroponic cannabis growing operation in a purpose-built shed. Three thousand three hundred maturing plants were under cultivation, a further 3,780 seedlings were found. Two thousand three hundred and twenty-five mature plants or portions thereof were being dried and processed cannabis head weighing 23.3 pounds was also found. Daley and his two sons pleaded guilty. All were first offenders.
In the present case the quantity of cannabis found was obviously much less. However, unlike Daley, the operation in this case extended over four years. There was the added feature of money laundering relating to a substantial sum. This was a reasonably sophisticated operation and, of course, Mr Jury has previous convictions. This combination of factors, in our view, puts this offending near the top end of culpability for its type.
Deterrence must always be a major factor in sentencing for offending of this nature. Cannabis is easy to grow and the offending is difficult to detect. The maximum penalty for the cultivation of cannabis is seven years imprisonment. The money laundering counts carry the same maximum penalty. For selling cannabis the maximum penalty is eight years imprisonment. Given the on going nature of the operation in this case, we are of the view that on its own the cultivation counts would have justified six years imprisonment and the selling counts seven years. Looking at the totality of the offending we consider that a total term of imprisonment of seven and a half to eight years would be justified in the absence of a fine.
We add that we do not find the decision R v McCormack [supra] helpful to present-day sentencing. The decision was given eight years ago. The more recent decisions of this Court referred to above give a better indication of appropriate current penalties.
The question as to whether a part of the penalty should be represented by a fine does not often arise for the reason that most people convicted of an offence do not have the means to pay one. Clearly there is statutory authority to impose both forms of penalty. It is important to guard against creating the impression that a person can buy his way out of prison. But there are cases, and we consider that this is one, where the imposition of a fine as part of the penalty fits both the nature of the crime and the circumstances of the offender. Offending of this nature is motivated largely by greed. To impose a fine where the means are available to pay one directly addresses that motivation. Obviously, the level of that fine is a matter of judgment. We have already held that a longer prison term than that imposed is justified in this case. The imposition of a fine in addition to the sentence of imprisonment is, therefore, permissible in terms of the authorities referred to in paragraphs [16] and [17] above.
As to whether any allowance should be made for mitigating factors, this Court has stated on numerous occasions that personal considerations will seldom be relevant in drug related offending. As to the health considerations referred to by Mr Williams, we are not persuaded on the basis of the medical reports presented, that the appellant suffers from a condition that would justify any special consideration except to the extent that the imposition of a fine as part of the penalty will reduce the time spent in prison. We do not consider that there are any mitigating factors in this case that would justify a reduction in the sentence otherwise appropriate.
In this case an order was also made that the appellant pay a substantial sum towards the cost of the prosecution. The Courts in this country and in the United Kingdom have noted that it is inappropriate for costs to be used as a means of punishing a defendant for having elected to go to trial. (See generally Hall Sentencing, App. V, and Current Sentencing Practice, para. J6-2G.) Again, of course, a substantial award of costs in offending of this nature is a rare event because most offenders lack funds. We think the better course to follow is to limit the imposition of costs to those cases where the defendant has deliberately prolonged proceedings or committed some sort of misconduct in the course of the trial. There is no suggestion that is so in the present case.
Where costs are awarded care must be taken to see that the totality of the sentence, including imprisonment, fine and costs, is appropriate in relation to the nature of the offending.
We have concluded that in the present case the total of $500,000 imposed as a fine and costs in addition to six years imprisonment, is excessive. In our judgment it is appropriate that the fine be set at $250,000 and that no order be made as to costs. The appeal is allowed to that extent. The sentence of imprisonment of six years is confirmed. The fine of $400,000 and the costs awarded of $100,000 is set aside and in its place the appellant is fined the sum of $250,000. In all other respects the appeal is disallowed.

Solicitors
Crown Solicitor, Auckland

[2002] NZCA 225

31 October 2002