The Queen v Graeme Christopher Pineaha

[2002] NZCA 22

IN THE COURT OF APPEAL OF NEW ZEALAND CA373/01

THE QUEEN

V

GRAEME CHRISTOPHER PINEAHA

Hearing:	18 March 2002
Coram:	Blanchard J Salmon J Chambers J
Appearances:	W D McKean for Appellant P K Hamlin for Crown
Judgment:	26 March 2002

JUDGMENT OF THE COURT DELIVERED BY SALMON J

1. Mr Pineaha appeals against a sentence of two and a half years imprisonment imposed in the District Court on a charge of cultivation of cannabis.  The ground on which this appeal is brought is that the appellant when pleading guilty acknowledged cultivation of seven of a total of 68 plants found and expected there to be a contested facts hearing prior to sentence.  It is the failure to hold that hearing that forms the sole basis of the appeal.

2. The background to the discovery of the cannabis plants on this property is described in the decision of this Court in R v Pineaha (CA315/01, judgment 1 November 2001).  A search warrant was executed in respect of the property occupied by the appellant.  It concerned alleged offending unrelated to the present charges.  During the course of the search cannabis plants were found.  The search provisions of s.18(2) Misuse of Drugs Act 1975 were invoked.  Seven plants were found growing adjacent to the appellant’s house.  The other 61 plants were discovered on other parts of the property which was occupied by the appellant’s father-in-law, “M”.  Mr Pineaha claimed that those plants were outside that part of the property which he occupied and that they were not his plants. 

3. The appellant was charged indictably in relation to the cultivation of cannabis and pleaded guilty to that charge but, as mentioned above, maintaining that he had responsibility for only seven plants.  He was remanded for a disputed facts hearing.  That hearing did not eventuate because the appellant’s then counsel, advised the Court that it had been decided not to proceed with the disputed facts hearing.  He has filed a affidavit in which he sets out the facts leading to that decision. 

4. The principal witness was to be “M”.  Counsel concluded, after discussing the matter with “M”, that the evidence he was able to give would not exculpate Mr Pineaha in relation to the other plants the subject of the police case.  Counsel says this in his affidavit:

   I spoke with the appellant and advised him that I did not think that “M” could assist him with sworn evidence that “M” could be compromised and that we should forego the disputed fact hearing and put the effort into sentencing mitigation.  I believe he understood what I was saying and accepted my advice.  I seem to recall but I am not certain that the appellant’s wife was present at this time.

5. The appellant has also filed an affidavit.  He says that on 6 September 2001, which was the day set aside for the disputed facts hearing, he arrived at the Court with his witnesses.  He says he did not understand what happened.  He said he did not understand his former counsel to indicate that a disputed facts hearing was not required and that if he had known that was the case he would have said something.  He said he did not give instructions to abandon the hearing.  He says that his understanding was that the disputed facts hearing and sentencing were adjourned to a later date to enable a probation report to be prepared.  He went to Court again on that later date and was sentenced.   He says that he has always maintained that only the plants adjacent to his house were his and that he was not responsible for the other plants found around “M’s” property.

6. On 6 September “M” made an unsworn statement to the Court.  He said he believed the appellant was taking the blame for someone else and that, “several of them were involved in it”.  He said half of the plants were self-grown.

7. At the hearing before us the former counsel and Mr Pineaha were both called for cross-examination and each expanded upon the evidence given in affidavits.  It became clear that the witnesses referred to by Mr Pineaha were “M” and Mr Pineaha’s wife, who is “M’s” daughter.  Both were present on 6 September and were present at the discussion between Mr Pineaha and his counsel.  The Court was not provided with evidence from either of them as to whether or not his counsel advised Mr Pineaha to abandon that hearing.  We accept counsel’s evidence that such advice was given and that the Judge was told, both in Chambers and in open Court, that the disputed facts hearing would not proceed.  That conclusion is consistent not only with the Court record but also with the recollection of the Crown prosecutor who filed a memorandum to that effect. 

8. Mr Pineaha made some point of the fact that in his discussions with the probation officer who prepared the pre-sentence report, he continued to maintain his position that he was responsible just for the seven plants.  Those discussions took place after 6 September.  Mr McKean submitted that this supported Mr Pineaha’s contention that he did not understand the contested facts hearing to have been abandoned.  We regard the pre-sentence report as at best, equivocal in this regard.  While the report records Mr Pineaha’s contention that only seven of the plants were his and that the remainder belonged to a member of his partner’s family who was killed in a motor accident, it says nothing about a disputed facts hearing and indeed, records that Mr Pineaha was prepared to take the blame in respect of the other plants.

9. There were good reasons for the advice which the former counsel gave.  On the basis of the evidence before us it seems clear that “M” was not able to say that Mr Pineaha had no involvement in the cultivation of the other plants.  There is no suggestion that Mr Pineaha’s wife could give evidence of assistance to him, and there was the danger that “M” could be implicated if he were to give evidence.

10. We conclude that his counsel did advise Mr Pineaha to abandon the contested facts hearing and that Mr Pineaha accepted that advice.

11. Accordingly, the grounds upon which the appeal is based are not made out and it is dismissed.

Solicitors:
Webb Ross Johnson, Whangarei for Appellant
Crown Solicitor, Auckland