The Queen v Gough

[2008] NZCA 21

IN THE COURT OF APPEAL OF NEW ZEALAND

CA720/07
[2008] NZCA 21

THE QUEEN

v

LINDA CATHERINE VIVIENNE GOUGH

Hearing:19 February 2008

Court:Robertson, Randerson and Ronald Young JJ

Counsel:K R L Guthrie for Appellant

M D Downs for Crown

Judgment:25 February 2008 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.

BThe appeal against sentence is allowed and the sentence imposed in the District Court is quashed.

CFurther sentencing is adjourned pending receipt of a report under s 26A of the Sentencing Act 2002.

DBail will continue until sentencing has been concluded.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       Linda Gough, appeals against her conviction under s 12 of the Misuse of Drugs Act 1975 for knowingly permitting premises to be used for the cultivation of cannabis.

[2]       She was sentenced to six weeks’ imprisonment.  On the same day she was granted bail by the trial Judge pending the hearing of this appeal.

[3]       Her conviction appeal is advanced on the basis that:

(a)there was a substantial miscarriage of justice because of:

(i)the joinder of counts relating to a co-accused, Mr Bellingham, a short time prior to the hearing; and

(ii)the failure by the District Court Judge to fairly sum up to the jury the appellant’s case in respect of the sentence;

(b)On the question of sentence, it was submitted that:

(i)a term of six weeks’ imprisonment was manifestly excessive; and

(ii)the sentencing Judge did not know that an address was available at which home detention could occur.

Background

[4]       Mrs Gough and her husband owned a rural property in Tolaga Bay where they lived with a number of their children and their daughter’s partner, Dale Bellingham.

[5]       On 25 March 2007, following a police aerial surveillance operation, cannabis plants were identified as growing on the property.  A full search was conducted pursuant to s 18 of the Misuse of Drugs Act 1975.  Eight live plants were discovered.  Three, which were between one and one and a half metres in height, were in a small garden at the back of the property known as “the pumpkin patch”, one (half a metre tall) was at the back of the house and four (each about one metre tall) were behind an old bus. 

[6]       In addition, the police discovered large quantities of cannabis plant material throughout the property, including:

·     31 deal bags of cannabis in the television cabinet;

·     50 grams in a box in a stable loft;

·     418 grams on a shelf in the lounge of the house;

·     54 grams in a rubbish bag in the house;

·     84 grams in a bucket in the kitchen; and

·     3 paper bags of cannabis in the workshop.

[7]       The Goughs were not at home when the search was commenced but they returned and were shown three cannabis plants growing in “the pumpkin patch”.  When interviewed, Mrs Gough said:

Q        Whose property is this?

A        Mine and Vernon’s.

Q        And we found cannabis growing here?

A        Yes.

Q        Where were those plants growing?

A        Over by the bus.

Q        Whose plants were those?

A        Dale’s. [Mr Bellingham]

Q        How long were they growing there for?

A        About four months.

Q        How do you know they were his?

A        Because we had asked him to take them out.

Q        Did he?

A        No.

Q        Why not?

A        You’ll have to ask them.

Q        How many plants were there growing by the bus?

A        I don’t know.  I just asked them to remove them.

Q        Why didn’t you remove them?

A        Because I didn’t want Amber to get upset.

QYou didn’t want Amber to get upset so you didn’t pull the plants out?

A        Yes.

Q        Upset about what?

A        Because she has a drug problem, she smokes cannabis really heavily.

QWouldn’t that be an excellent reason to pull the cannabis out in the first place?

AShe would just buy it then and she has little enough money as it is.

[8]       Mr and Mrs Gough were charged with permitting their premises to be used for the cultivation of cannabis.  Mr Gough was separately charged with offences under the Arms Act.  The original indictment filed on 29 June 2007 reflected those original charges and the trial was set for 19 November 2007.

[9]       Mr Bellingham voluntarily went to the police.  He was interviewed and admitted ownership and possession of the cannabis found, and cultivation of all the cannabis plants.  He was charged with possession of cannabis for supply (which he denied) and cultivation of cannabis.

[10]     On 6 November 2007 the Crown Solicitor filed an application to amend the indictment to include counts against Dale Bellingham of cultivating cannabis and possession of cannabis for supply.

[11]     There was a hearing on 16 November 2007 and the Judge granted an application to include the counts involving Mr Bellingham in the indictment.

[12]     It is this decision which is said to have led to a substantial miscarriage of justice.  Mr Bellingham had not objected to his being included in the indictment, but there was vigorous opposition from both of the Goughs.

[13]     In delivering his oral judgment on 16 November 2007, the Judge said:

[3]       The Crown seeks to file an amended indictment effectively to join both prosecutions together and have all matters heard in the one trial.  The charges preferred against the various parties have been laid on the basis of statements made to the police at the time and hence the police are apparently accepting of what Mr and Mrs Gough have said concerning their involvement with the cannabis and have not sought to charge them with cultivation or possession for supply, those charges being confined to those laid against Mr Bellingham.

[4]       It is the sort of matter which ought really to have been all included in one indictment right from the outset.  There is no obvious reason why it should have been dealt with otherwise and indeed it seems simply to have been some sort of administrative problem that has caused two separate sets of proceedings to have been brought.

[14]     The Judge noted the objections in memoranda which had been filed on behalf of each of the Goughs, but then said:

[6]       I am bound to say I can see no basis upon which any injustice or unfairness to the Goughs can properly be identified or anticipated if these matters are tried together.  The general principles applicable to joinder of counts and joinder of offenders in like matters all arising out of the same factual matrix ought in my view to apply and the matter to be disposed of at one hearing.

[15]     Some difficulties then emerged about the role of Mr Simperingham (who was at the time acting as counsel for Mr Gough) because he had previously advised Mr Bellingham.  Any objection to this was withdrawn prior to trial.

[16]     The trial became somewhat cut throat, with the Goughs endeavouring to lay all the blame on Mr Bellingham, and Mr Bellingham stating that some of the cannabis did not belong to him.  It is pertinent to note that the sentencing Judge (who presided at the trial) was of the view that, on the evidence, Mr and Mrs Gough might well have been, and were fortunate not to be, charged with possession of cannabis.

[17]     As the trial developed, it was clear that, although Mr Bellingham admitted the cultivation of the cannabis, he contended that the packaged cannabis was not his and in fact belonged to the Goughs.

Late amendment to the indictment

[18]     Ms Guthrie contended that, because of the joinder of Mr Bellingham’s counts, the jury had before it evidence about the quantity of the cannabis located in the house and loft, which she submitted would otherwise not have been produced.  We find no substance in this complaint.

[19]     The charge against Ms Guthrie’s client did not alter.  The crucial question was whether the Crown could prove beyond reasonable doubt that Mrs Gough knew what was going on at the premises.  It is axiomatic that everything concerning illicit drugs on the property could go to the knowledge of Mrs Gough as to how the premises were being used and what she was permitting to occur on them.

[20]     Counsel referred to s 345D of the Crimes Act 1961 and the decision of this Court in R v Martin CA214/00 23 November 2000.  The issue is not now the correctness of the decision to permit the amendment, but whether there was a miscarriage of justice in the trial as a result. 

[21]     Mrs Gough’s case was advanced on the basis of unfairness and prejudice, but no actual examples of this were identified.  It was always open to the Crown during the trial of Mrs Gough to provide the jury with full information about what was going on at the premises.  We do not accept that any unfairness arose from the course of action which was followed.

[22]     There was also concern at the lateness of the amendment to the indictment, exacerbated by the fact that there was counsel from a distance which was said to create unfairness and prejudice, although no persuasive examples of this were identified.  There were difficult dynamics involving their daughter (who had been Mr Bellingham’s partner), but they would have been an issue in any event.

Identification of Mrs Gough’s case

[23]     The second conviction appeal point was whether Mrs Gough’s case was properly put before the jury.  The complaint was that the District Court Judge did not clearly separate the individual cases of the three accused people, but jumped between the cases involving each accused and interspersed and emphasised the Crown case regularly and unfairly.

[24]     There was particular concern that the Judge, at some length, set out the Crown case.  However, the Judge identified to the jury that he was reporting the Crown case.  There is nothing to suggest that he was endorsing or adopting it.  Ms Guthrie agreed that, later in the summing up, the Judge set out Mrs Gough’s position.

[25]     Ms Guthrie pointed to the fact that, five hours into the deliberations, the jury indicated that they were having some difficulty deciding on a verdict.  There is nothing particularly unusual or untoward about that and no complaint is or can be made about the Judge’s answer to their inquiry.

[26]     Further, it was submitted that the Judge had unfairly responded to an issue about the absence of fingerprints, but Ms Guthrie’s submission as to how the jury would interpret a passing comment of a very general nature is not compelling.  It was also submitted that both the Crown and the Judge had made comments about the amount of illicit drugs which were found on the property and had treated this in a manner suggesting that everybody must have known of the drugs without a proper differential between the individuals.

[27]     Ms Guthrie submitted that the Judge was unbalanced in reminding the jury of the respective cases.

[28]     The Crown case was overwhelming.  The fact that the premises were being used to cultivate cannabis was there to be seen.  The contention that Mrs Gough did not know what was going on lacks credibility.  We are unable to detect how any miscarriage of justice could have arisen from the fact that the Judge treated part of her case on a general basis in the summing up.

Conviction result

[29]     Neither of the issues raised is sustainable and the appeal against conviction must be dismissed.

Appeal against sentence

[30]     Mrs Gough is 46 and a mother of five children.  She continues to suffer serious consequences from a horrific car accident 26 years ago.  Her only previous offending was for unrelated matters and did not involve serious consequences.  It has no bearing upon this appeal.

[31]     The probation officer’s report said that home detention was not an option at Mrs Gough’s address.  It was accepted before us that counsel appearing for her at sentence (not Ms Guthrie) overlooked telling the Judge that an alternative address in Gisborne was available at which she could serve a sentence of home detention.

[32]     It is common ground that Judge Gittos would have considered home detention, had it been available.  In light of that, Mr Downs responsibly accepted that as there is the possibility of a suitable address, that option should be considered.

[33]     The probation officer was of the view that Mrs Gough had a low risk of re-offending, had a significant disability, and that the Court should consider s 110 of the Sentencing Act 2002.  However, it is not the function of a probation officer to determine whether home detention is necessary or appropriate, and the reluctance to investigate alternative addresses was beyond the report writer’s area of responsibility.

[34]     The Judge took the view that Mr and Mrs Gough should be treated in the same manner, even although Mr Gough had an unenviable list of previous offences, including a number of terms of imprisonment (although no offending since 1994), and was also to be sentenced in respect of other offences under the Arms Act 1983.

[35]     The Judge’s conclusion was expressed thus:

[22]     I do not think really that the Court can, particularly after a contested jury trial on these things, simply deal with these offences by way of a suspended sentence or a period of community work.  And given that home detention is not available, I think the only realistic option, to provide a meaningful deterrent and to have regard to those aspects of the Sentencing Act, is to impose a short period of imprisonment.

[23]     Each of Mr and Mrs Gough is sentenced to six weeks’ (42 days) imprisonment.  I expect that given the time of the year and the parole arrangements, that will result in a short sentence indeed, but it is nevertheless something that I think is necessary to mark society’s disapproval of this sort of conduct.

[36]     Ms Guthrie submitted that the sentence imposed on Mrs Gough should be less than that of her husband.  An argument for a difference in sentencing may have some validity, but the problem (if there is one) is the leniency of the sentence imposed on Mr Gough rather than the inappropriateness of the sentence imposed on Mrs Gough.

[37]     Without opposition from the Crown, we allow this appeal.  We adjourn the question of an alternative sentence pending, the provision of a report under s 26A of the Sentencing Act 2002.

[38]     If that indicates that home detention can be imposed under s 80A of the Sentencing Act 2002, then we will forthwith impose a term of six weeks’ home detention.  If the report precludes such a sentence, then we will reconvene a hearing to continue this appeal.  Bail will continue until sentencing.

Solicitors:
Crown Law Office, Wellington