The Queen v Fishwick

[2008] NZCA 228

IN THE COURT OF APPEAL OF NEW ZEALAND

CA112/2008
[2008] NZCA 228

THE QUEEN

v

ROSS EDWARD FISHWICK

Hearing:2 July 2008

Court:Arnold, Panckhurst and Fogarty JJ

Counsel:J L Cagney for Appellant

K Raftery for Crown

Judgment:10 July 2008 at 2.30 pm 

JUDGMENT OF THE COURT

AThe application for extension of time within which to file appeal is granted.

B        The appeal is dismissed.

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1]       Following a jury trial before Chief District Court Judge Johnson, the appellant was convicted on one charge of cultivating cannabis (s 9(1) of the Misuse of Drugs Act 1975).  He was sentenced to a term of four years imprisonment.  He appeals against that sentence.  He also seeks an extension of time within which to file his appeal.  As the Crown does not oppose that application, we grant it.

Background

[2]       During a search of two adjoining properties owned by the appellant, the police located eight rooms set up as cannabis growing rooms.  The rooms had lighting and heating systems and ducted ventilation to the outside.  Some of the rooms were lined with reflective foil.  An additional room had been set up with wire lines and a large dehumidifier.  It was used for drying harvested cannabis.  The appellant’s fingerprints were found on several pieces of equipment in the rooms.

[3]       A total of 174 mature cannabis plants were growing in the growing rooms.  The evidence was that, on an annual basis, the growing rooms were capable of producing cannabis with a street value of between $400,000 and $550,000. 

[4]       The appellant, a qualified electrician, and his partner, Ms McDonald, were present at the properties at the time of the search.  Each gave statements to the police. During the course of his interview, the appellant made a number of admissions, to the effect that he had been living at the property for the previous six months, had set up equipment in the rooms and had fed the plants.  During the course of her interview, Ms McDonald implicated the appellant in the cultivation and sale of the cannabis.  At the time of his arrest, the appellant had with him almost $4,000 in cash.

[5]       The appellant and Ms McDonald were jointly charged with three counts – cultivation of cannabis, possession of cannabis for sale to “Gavin Fenton and/or to a person or persons unknown” and selling cannabis, also to “Gavin Fenton and/or to a person or persons unknown”. Ms McDonald pleaded guilty to all three counts, pursuant to a sentence indication of two years imprisonment.  The appellant elected to go to trial.

[6]       At his trial the appellant gave evidence that he was not living at the properties at the time of the search but was simply staying there on the particular day.  He said that Ms McDonald rented the properties from him.  He denied being involved in the cannabis cultivation operation and said that the money found in his possession was arrears of rent, which had been given to him by Ms McDonald. 

[7]       Ms McDonald also gave evidence on behalf of the appellant.  She said that Gavin Fenton and his associates were growing cannabis on the property and that the appellant had nothing to do with it.  She said that the appellant had been “set up” by Mr Fenton and his associates and that they had pressured her into making her statement to the police implicating the appellant.

[8]        In the event, the Jury convicted the appellant on the cultivation count and acquitted him on the possession for sale and selling counts.

The sentencing

[9]       In sentencing the appellant Judge Johnson noted that this was a sophisticated cannabis operation.  He rejected Mr Cagney’s submission on behalf of the appellant that he should interpret the verdicts as indicating that the jury considered the appellant was rather remote from the offending and had merely tolerated it occurring on his property rather than participated in it.  The Judge said:

[19]     The Court of Appeal in [R v Terewi [1999] 3 NZLR 62] categorises cannabis cultivation which is sophisticated, has a commercial aim, and where the revenue is [$100,000] or more, as Category 3. It says that the starting point would usually be four years or more, imprisonment.

[20]     I listened to the evidence, along with the jury.  I am obliged to draw my own conclusions from the evidence I heard about their verdicts.  They must have been satisfied that you had knowledge and participation, to have found you guilty of cultivation.

[21]     I find it extraordinarily difficult to imagine the circumstance, on the facts of this case, where you could have been simply a remote personality not involved in all of this.

[10]     The Judge adopted a starting point of four years.  He saw no mitigating  circumstances and accordingly imposed an end sentence of four years imprisonment.

[11]     In relation to Ms McDonald, the Judge noted that her evidence at trial was at variance with her statement to the police and that her sentence indication reflected the cooperation that she was expected to give the police.  Nevertheless, the Judge imposed a sentence consistent with the sentencing indication, namely two years imprisonment.  He considered that Ms McDonald had been “used” by others.

Basis of appeal

[12]     Mr Cagney’s essential submission to us was that the jury’s verdicts in respect of the appellant could best be understood on the basis that the jury considered that he had turned a blind eye to what Ms McDonald and perhaps others were doing on his property.  Mr Cagney said that the appropriate inference was that the appellant was a landlord who must have been aware of what was going on on his property and took rent with that knowledge.  He said the Judge was wrong to treat the appellant as having been involved in a sophisticated commercial cannabis cultivation operation.  On this basis, Mr Cagney said, the appellant’s offending fell at the lower end of category 2 in Terewi. 

[13]     Mr Cagney said that before the Judge could properly conclude that the appellant was involved in the operation (as opposed to simply tolerating it), there should have been a disputed facts hearing in terms of s 24 of the Sentencing Act 2002.

[14]     In the result, Mr Cagney submitted, a lower sentence should have been imposed on the appellant, one more in line with that imposed on Ms McDonald.

Discussion

[15]     We do not accept Mr Cagney’s submissions.  We consider that, having heard the evidence at trial, the Judge was entitled to reach the conclusion which he did.  We also consider that the sentence which he imposed was properly available to him.

[16]     This is not a case where the Judge has assumed the existence of facts that have effectively been negated by the jury’s verdicts.  There was, as Mr Raftery said, ample evidence on the basis of which the Judge could properly conclude that the appellant was actively involved in the cultivation.  This evidence included his admissions, the fact that he was an electrician capable of setting up such a sophisticated operation, the finding of his fingerprints on several items of equipment used in the operation and the fact that the operation was established on his property.  The jury may have felt compelled to acquit on the possession for sale and selling counts because on the evidence they were not satisfied that he actually sold cannabis (or possessed it for sale) to Gavin Fenton (although the counts did also refer to person or persons unknown).  But it cannot be concluded from their acquittal of the appellant on those counts that the jury considered that the appellant’s involvement in the cultivation was limited to the extent suggested by Mr Cagney.

[17]     In short, then, we do not agree with the interpretation of the jury’s verdicts that Mr Cagney advanced, both before the Judge and before us.

Decision

[18]     We grant the appellant’s application for an extension of time within which to file his appeal, but dismiss the appeal.

Solicitors:
Crown Law Office, Wellington