The Queen v Hone Robert Newman
[2001] NZCA 275
•25 October 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA296/01 |
THE QUEEN
V
HONE ROBERT NEWMAN
| Hearing: | 25 October 2001 |
| Coram: | Richardson P |
| Appearances: | N.M. Dutch for Appellant F.E. Guy for Crown |
| Judgment: | 25 October 2001 |
| JUDGMENT OF THE COURT DELIVERED BY JOHN HANSEN J |
The appellant appeals a sentence of six months imprisonment imposed in the Tauranga District Court for cultivation of cannabis. The appeal is some eight months out of time.
The appellant was charged, along with his co-accused, Mr Kissling, with cultivating cannabis and possession of cannabis for the purpose of supply. The appellant was convicted of both charges, Mr Kissling was found guilty on the charge of possession for supply, but not guilty on the charge of cultivation.
Following information received, the Police travelled to the property where the appellant lived. Finding cannabis stalks in a pigsty, the officer in charge exercised his powers, pursuant to s.18(2) of the Misuse of Drugs Act. As a consequence of the search carried out, various amounts of cannabis were found in containers at the property, along with 20 seedlings in pots, seeds, weighing and packaging equipment. The total amount of cannabis involved was just over 2 kg. For sentencing purposes, the Judge accepted its conservative value was in the vicinity of $18,000-00.
The Judge placed the possession for supply within the second category of R v Terewi [1999] 3 NZLR 62, but accepted a submission that some part of it would have been for personal consumption. He concluded an appropriate starting point was one of two years imprisonment, but allowing for the personal consumption, came to the view a proper sentence was one of eighteen months imprisonment for both accused.
However, he considered the appellant was in a different category from Mr Kissling because the Jury had also found him guilty of cultivation of cannabis. Although the plants were seedlings, the Judge noted it was the appellant’s second offence of this nature, and continued in his sentencing notes:
On the basis of totality, a sentence of 2 years imprisonment is appropriate in your case.
He rejected a submission that the sentence should be suspended by reference to R v Petersen [1994] 2 NZLR 533, and R v Andrews [2000] 2 NZLR 205 The sentence of six months was to be cumulative on the 18 months, giving an effective sentence of two years.
On behalf of the appellant it was submitted that a sentence of six months imprisonment on the cultivation charge was manifestly excessive. Secondly, it was submitted, having regard to totality and parity principles, such sentence should not have been imposed cumulatively. No issue is taken with the sentence for possession for supply.
Mr Dutch submits that the Jury verdicts can only make sense if they accepted the evidence of Mr Kissling that he brought the cannabis to Mr Newman’s property, but rejected the evidence he brought the seedlings to the property. On that basis, it is said the cannabis for supply was a joint enterprise, with a commercial element, while the cultivation was entirely separate and related to Mr Newman only. In the light of that, it is submitted the cultivation does not have any commercial element, and is, therefore, within Category 1 of Terewi.
Reference has been made to the evidence that supports the view that Mr Newman was a heavy user, and that the small quantity of seedlings found would not even have met his personal needs and use.
The Crown submits that an effective sentence of two years imprisonment was clearly within the range available to the Judge when the offending is viewed in its totality. The Crown further submits that in relation to the cultivation charge, the Judge was entitled to take into account the clearly commercial element associated with the material found in the house when considering an appropriate sentence in relation to the cannabis seedlings located nearby.
It was submitted that the principle of parity required a higher total sentence for Mr Newman, because the cultivation can be viewed as additional individual offending committed by the appellant, which the Judge was entitled to recognise by the imposition of a cumulative sentence.
Quite clearly, the possession of cannabis for supply fell into Category 2 of Terewi which is defined as:
Category 2: encompasses small-scale cultivation of cannabis plants for a commercial purpose, ie with the object of deriving profit. The starting point for sentencing is generally between two and four years but where sales are infrequent and of very limited extent a lower starting point may be justified.
Despite the value of the cannabis, the Judge took the lowest starting point mentioned in Category 2. Given the amount involved, and its value, and that the appellant was found guilty following trial, the six months deduction for personal use for the appellant and Kissling could be said to be generous.
This Court in R v James (CA140/98, 10 August 1998, Henry, Keith and Anderson JJ) stated:
Sentencing for multiple offending such as that involved here can be structured in different ways. Sometimes what can be referred to as a head sentence may be imposed in the most serious offence. In isolation that may be more severe than would be appropriate if it stood alone, but when accompanied by other concurrent sentences the end result is appropriate. Sometimes the use of cumulative sentences will achieve the same final result, although on analysis it could be said that the individual sentences were less than the particular offending deserved had it stood alone. The latter method was the approach adopted by the sentencing Judge in the present case. As he expressly noted, the 3 year term for wounding with intent did not represent its true gravity. The ultimate question is whether the effective sentence imposed properly represents the totality of the particular offending. Cases of multiple serious offending will always have their own characteristics and features of significance, making comparisons difficult except in a general way. It is for this reason that the Courts will frequently speak of a range which generally will cover the type of offending under consideration. The selection of a sentence within that range will be largely a matter of individual judgment, to which must be applied established principles and if appropriate the guidelines given by this Court.
With those observations we turn to the particular aspects of this case. This appellant was found guilty of the additional offence of cultivating cannabis. In the light of that, the Judge was entitled to treat his culpability as greater than that of his co-accused. Given the amount of cannabis involved in the possession for sale charge, and the number of seedlings, a total sentence of two years could not be said to be manifestly excessive.
Disparity
The second ground advanced by the appellant is that having regard to principles of parity with the co-offender, it was inappropriate to make the sentence on the cultivation charge cumulative. Although that was not urged on us with vigour today by Mr Dutch. This Court addressed the principles applicable when claims of disparity between co-offenders are made in R v James (supra) at page 6:
The principle to be applied when there is a claim of disparity between co-offenders is well established. Put shortly, it is whether a reasonably minded independent observer aware of all the circumstances of the offence and the offenders would think that something had gone wrong with the administration of justice (R v Lawson [1982] 2 NZLR 219). That one of the two co-offenders has received an unduly lenient sentence is not necessarily a ground for interfering with the longer sentence (R v Rameka [1973] 2 NZLR 592). Furthermore sentencing is not an exact science, and the circumstances of one offender will usually contain relevant difference from those of another offender.
In our view, there are relevant distinctions to be drawn between Kissling and the appellant. The appellant was convicted of the additional offence, and had a previous conviction for cultivating cannabis. As well, in considering the cumulative sentence, regard must be had to the totality of the sentence. As we have already pointed out, it cannot be said that a sentence of two years is manifestly excessive for these two offences, given there are no mitigating factors. As noted earlier, the Judge was generous in the discount he applied because of the appellant’s heavy personal use of cannabis.
We are not persuaded the difference in sentence warrants appellate intervention. The Judge had heard all the evidence relating to both accused, and he has not been shown to have erred, either in principle, or in the balancing exercise when drawing the distinction he did when fixing a total sentence for the appellant of six months greater than Kissling.
Conclusion
For the above reasons, leave to appeal out of time is granted, but the appeal is dismissed.
Solicitors
N Dutch for the Appellant
Crown Law, Wellington for the Respondent
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