The Queen v Gary William Mulvena

[2002] NZCA 76

IN THE COURT OF APPEAL OF NEW ZEALAND CA419/01

THE QUEEN

V

GARY WILLIAM MULVENA

Coram:	Keith J Tipping J Anderson J
Counsel:	T Fournier for Appellant (Initial submissions)
J C Pike for Crown
Judgment (on the papers):	22 April 2002

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

1. This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Offences and sentence

1. The appellant pleaded guilty in the District Court to one charge of cultivation of cannabis and was found guilty after a trial before a Judge alone of one charge of possession of cannabis for supply both being offences under the Misuse of Drugs Act 1975. He was sentenced on 24 October 2001 to two years and nine months imprisonment on the charge of possession for supply and two years imprisonment on the cultivation charge. The sentences were imposed concurrently.

Relevant facts

1. On 15 March 2001, the police executed a search warrant at the appellant’s address. The appellant was found to have a small amount of cannabis on his person and in his bedroom. The police also found 80 cannabis plants in a concealed room attached to the garage. The smallest plant was approximately two feet in height and the tallest was over 10 feet. A further 14 plants were found on the roof. The plants, when dried, weighed 3.286 kilograms and were assessed as having a wholesale value of approximately $23,000 and a street value of almost double that amount. The appellant testified at trial that the cannabis was for his personal use. He said he had planned to use only the “head” and compost the remainder; he smoked one cigarette a day and hoped to increase his use. Although the Judge accepted that some of the cannabis was for the appellant’s own use he found that the appellant was preparing to market the drug in a region where cannabis was in short supply. He considered that this was a significant commercial operation.

Grounds of appeal

1. The sentence is appealed on the grounds of manifest excess. Counsel for the appellant filed a synopsis of points on appeal in which he submitted that while the offending was appropriately held to fall within the second category in R v Terewi [1999] 3 NZLR 62, the starting point was set too high. Although it was not stated in the judgment, counsel suggested that a starting point of three years can be assumed, with a deduction of three months for mitigating factors. It is also submitted that the sentence imposed did not adequately reflect the appellant’s efforts to become drug free.

2. In additional written submissions, the appellant made various points which can be summarised as:

[a]Personal consumption of good quality cannabis would have accounted for much of the total cannabis harvest,

[b]The market value of the remaining cannabis was much less than $23,000,

[c]The number of cannabis plants growing at the appellant’s address was unwittingly exaggerated by police,

[d]Lighting equipment found in the search was not used in the growing operation.

Reasons

1. We have had regard to the appellant’s expressions of remorse, his references and the favourable progress he has made in terms of rehabilitation. His efforts to become drug free are to be commended but the sentence imposed cannot be regarded as manifestly excessive. The points made by the appellant on his own behalf are essentially challenges to findings of fact made in the District Court. Those findings were plainly open to the Judge and there is no proper basis in this case for revisiting them.

Result

1. The appeal is dismissed.

2. The appellant requests the return of original documents supplied to the Court. An order is accordingly made for the release of the requested items. Copies will be retained on file.

Solicitors
Crown Solicitors, Wellington