The Queen v Edbrooke

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 169/00

THE QUEEN

DONNA LEE EDBROOKE

Hearing:	27 July 2000 (at Auckland)
Coram:	Thomas J Anderson J Robertson J
Appearances:	P E Dacre for Appellant M A Woolford for Crown
Judgment:	27 July 2000

JUDGMENT OF THE COURT DELIVERED BY THOMAS J

The appellant, Ms Edbrooke, was convicted in the Auckland District Court on 18 April 2000 of one charge of cultivating cannabis, a representative charge of selling cannabis, and a charge of possessing cannabis for the purpose of supply. She pleaded guilty to each charge. The Judge sentenced her to five months imprisonment. On 20 April 2000, the Judge granted Ms Edbrooke bail pending her appeal to this Court in order to allow her to look after her children. She now appeals against her sentence.
The facts of the case are straightforward. On 20 November 1999 the Police executed a search warrant at 18 Tiri Tiri Avenue, Birkdale. They found 22 cannabis plants. The plants were growing in pots in a wardrobe under ultraviolet heat lamps connected to timing devices. A further plant was found growing in the back yard. In addition, the search located 203 grams of dried cannabis plant, including 19 ‘tinnies’ - cannabis wrapped in tinfoil sufficient for two or three cigarettes. Six hundred dollars in twenty dollar bills were found in a wardrobe. 1750 cannabis seeds were also found in a bedroom.
The house belonged to Ms Edbrooke and her de facto partner of nine years. They were both heavy cannabis users, and held strong views that the drug ought to be decriminalised. They have two children, aged two and four respectively. The Probation Officer reports that Ms Edbrooke and her partner are strongly supportive of each other and are “loving parents”. The imprisonment of their mother would have an extremely detrimental effect on the children.
Ms Edbrooke and her partner grew their own plants. Ms Edbrooke’s partner had experimented with different strains of plant. The previous year he had exchanged an ounce of a particular strain for a different strain with a friend. But neither Ms Edbrooke nor her partner liked the strain which they had obtained. Friends in their circle wanted to acquire the cannabis which they did not like. They decided to sell that particular ounce and divided it into 30 tinnies. Between them they sold 11 tinnies at $20 each to their friends. Ms Edbrooke appears to have sold three tinnies and her partner the remainder. Both claimed that, of the $600 found in the wardrobe, only $100 represented proceeds from cannabis sales. The rest came from the sale of a motor vehicle.
The sentencing Judge expressed considerable sympathy for Ms Edbrooke and her partner. He gave both a “full discount” for their guilty pleas and noted that Ms Edbrooke had no previous criminal history (her partner has a conviction for the cultivation and possession of cannabis in 1985). The Judge observed of the pair:
You have strongly, and I accept, genuinely held views about the use of cannabis. You have none of the trappings of the cannabis dealer who can often make a very good living from the sales of cannabis and I tend to accept his [counsel’s] assessment of you that you are not made of the stuff of which major cannabis dealers are made. The amount that you stood to gain is to be measured in the hundreds of dollars rather than thousands and whilst I accept that the potential value of the plants could amount to something like $10,000 I also accept that the commercial element in this case is very small. For what it is worth I also accept that the initial approach came from people who wished to acquire cannabis from you rather than you going out and creating a market. If I had taken that view, I should have regarded the matter far more seriously than I do today.
Having noted that “the commercial element in this case is very small”, the Judge concluded that the pair were unlikely to re-offend. He stated that the circumstances justified the imposition of a non-custodial sentence or a suspended sentence of imprisonment.
The Judge went on the say, however, that he considered himself bound by the decisions of this Court in R v Terewi [1999] 3 NZLR 62 and the full Court in R v Andrews [2000] 2 NZLR 205. He considered that the Court in Andrews had made it clear that, where there is any commercial element at all, the case is to be regarded as falling within category two of Terewi. Thus, the starting point is to be between two to four years imprisonment, although a lower starting point may be justified in some cases where the commercial element is very small. Suspended sentences are only permitted in exceptional circumstances.
The Judge accordingly adopted a starting point of 15 months imprisonment. From this he deducted five months for the guilty plea and five months for the mitigating circumstances. He could not find any exceptional circumstances justifying a suspension of the sentence and both Ms Edbrooke and her partner were sentenced to five months imprisonment. The Judge granted both leave to apply for home detention. As noted, the Judge granted bail to Ms Edbrooke pending her appeal, but not to her partner.
We consider that the Judge erred in treating Ms Edbrooke and her partner on an equal footing. Her partner was the driving force in the cannabis operation. He set up the whole operation at the house. He purchased literature on the subject, installed the equipment in the wardrobe to grow the cannabis, and was responsible for planting, maintaining and harvesting the cannabis. While Ms Edbrooke left the day to day care of the cannabis to her partner, she acknowledges that on occasions she helped him by watering the plants. Short of separating herself and her children from her partner it is difficult to see how Ms Edbrooke could have disassociated herself from the operation.
We therefore consider that Ms Edbrooke’s position warranted discrete attention. Had this been done we believe that a term of imprisonment would have been perceived as unacceptably harsh. Category 2 in Terewi, as endorsed by the full Court in Andrews, encompasses the cultivation of cannabis “for a commercial purpose, ie with the object of deriving profit”. It is not realistic to include Ms Edbrooke’s involvement within this description. She did not cultivate the cannabis for a commercial purpose, that is, for the object of deriving profit. It was cultivated for the personal use of her partner and her, her participation in that enterprise was undoubtedly secondary to his, and she sold no more than three tinnies It would be, in ant event, an overstatement to describe actions in the nature of Ms Edbrooke’s involvement in this case resulting in minimal sales among a circle of friends as “commercial”. The word “commercial” is not to be deprived of its ordinary meaning. Andrews is not intended to remove all flexibility in sentencing offenders who fall at the lower end of the second category in Terewi.
We therefore consider that, if the sentencing Judge had addressed Ms Edbrooke’s position discretely, he would not have concluded that Andrews and Terewi required him to impose a custodial sentence on Ms Edbrooke.
In our view, a non-custodial sentence would have been justified having regard to the following matters:
·     Most importantly, and as set out more fully above, Ms Edbrooke’s partner, and not Ms Edbrooke, was the driving force in the cannabis operation;
·     Ms Edbrooke sold only three tinnies herself, and any “commercial” advantage to her was minimal;
·     Ms Edbrooke, as the sentencing Judge found, had no intention of selling the cannabis grown for her partner and her own use;
·     Ms Edbrooke has no previous criminal convictions;
·     As stated by the Probation Officer, Ms Edbrooke appears genuinely upset and remorseful;
·     Ms Edbrooke co-operated fully with the Police and entered a plea of guilty at the earliest opportunity;
·     The tests undertaken by the Probation Officer indicated that Ms Edbrooke has a low risk of reoffending, an assessment which can be accepted as sound in respect of any further selling.
·     Ms Edbrooke has two young children aged four and two years respectively for whom her presence and care is required.
In the circumstances, we consider that it would have been justifiably open to the sentencing Judge, if a term of six months imprisonment had been imposed, to suspend the term. The Judge, however, imposed five months imprisonment, one month short of the minimum period which may be suspended. We are not prepared to increase the term in order then to suspend it. Such manipulation of the term of imprisonment in order to permit suspension has been condemned by this Court on many occasions.
The sentencing Judge also considered, however, that, but for his belief that Andrews required him to impose a sentence of imprisonment, a non-custodial sentence would have been appropriate. We are prepared to entertain this alternative. Such a penalty is not a lenient option. In R v Minto [1982] 1 NZLR 606, at 608, this Court said:
As we took trouble to emphasise in R v Burton [1982] 1 NZLR 602 periodic detention and community service are two forms of non-custodial sentence which are intended by Parliament to be, and indeed are, very real and effective alternatives to imprisonment. We repeat now that the impact of these alternatives can be severe and they ought not to be regarded by the public as a minor or insignificant reaction by the Courts.
The appeal is therefore allowed. The sentence of five months is quashed and a sentence of five months periodic detention is substituted. Ms Edbrooke is to report to the Chief Warden at the North Shore Centre, 71-73 Wairau Road, on Wednesday 2 August between 4 pm and 6 pm.

Solicitors

Crown Solicitor, Auckland for Crown

[2000] NZCA 142

27 July 2000