The Queen v John Arida Cockburn
[2000] NZCA 193
•7 September 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 244/00 CA 210/00 |
THE QUEEN
V
JOHN ARIDA COCKBURN
ANDREW BARRIE THOMSON
| Hearing: | 31 August 2000 |
| Coram: | Thomas J |
| Goddard J Panckhurst J | |
Appearances: | P D Williams for Thomson |
| Judgment: | 7 September 2000 |
| JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J |
In this case Mr Cockburn appeals against his conviction on a charge of cultivating cannabis, and against a sentence of two and a half years imprisonment on that charge and a related one of possession of cannabis for the purpose of supply. Mr Thomson challenges his sentence, two and a half years imprisonment, on one charge of possession of cannabis for supply.
The two were convicted in the District Court at Dunedin after a trial before Judge and jury on 30 – 31 May 2000. The convenient course is to first deal with the conviction appeal, and then with the sentence appeals together.
The Facts of the Case:
The Crown case was a straight-forward one. At about 2.25 pm on 14 July 1999 police officers went to 97 Maitland Street Dunedin, the home address of Mr Cockburn. They were in possession of a search warrant. While waiting for the door to be answered, officers observed the appellants in the lounge area of the address. The two were seated, wearing gloves (or at least one glove), with a set of scales, small plastic bags, and a quantity of cannabis within reach.
Mr Cockburn answered the door. Once inside the house Detective Darry warned and gave Mr Cockburn his rights. A question and answer interview followed which was recorded in the officer’s notebook. Subsequently the appellant, after the notes had been read back to him, signed the notebook as a true and correct record.
Relevantly it read:
Q:‘ What’s the story with the cannabis, John?’
A:‘ It’s just me own supply.’ He then paused and said, ‘For the year.’
Q:‘ How much is there?’
A:‘ I don’t know. I was just seeing, you understand.’
Q:‘ Who was the person with you?’
A:‘ He’s in the top house, we’ve just put in a hot water cylinder, he came down to find out if we’d hooked it up with the wetback.’
Q:‘ That’s Andrew Thomson?’
A:‘ Mmmm, top house, goes with Angie.’
Q:‘ How much cannabis do you smoke a day?’
A:‘ I don’t know, I don’t know, five, seven, 10 joints a day. A bag would last me three days or so. A fair bit, it should be legal, I’m anti other drugs.’
Q:‘ Why are the scales in the lounge?’
A:‘ What? I just wanted to see how much I got off me plants and it’s a good way to control myself, control my intake.’
Q:‘ Do you have anything to add at this stage?’
A:‘ About what? There’s nothing to add, nothing to say.’
Q:‘ I put it to you that you are selling cannabis to Andrew Thomson.’
A:‘ No, no, you are most emphatically wrong, most emphatically wrong. If I was selling to him there would be cash.’
Q:‘ Where did you grow your plants?’
A:‘ Yeah, yeah.’
Q:‘ You don’t want to say?’
A:‘ I’m not saying anything, Hunter.’
After returning to the police station two further questions were asked:
Q:‘ Where is the leaf from the cannabis?’
A:‘ I didn’t, I didn’t, I didn’t keep any, I threw it away, I don’t bugger with that shit, it’s good fertiliser.’
Q:‘ So that cannabis we found is all head?’
A:‘ Mmmm, yeah, yeah, it is.’
Despite the fact that Mr Cockburn had signed the notebook, there was some challenge to its contents. In an appeal setting we must proceed on the basis that it was competent for the jury to act on the basis of the questions and answers as they emerged from the detective’s evidence.
Mr Cockburn gave evidence in his own defence. He said that the day before his arrest he had made a trip to Central Otago. That night, while en route back to Dunedin, he visited friends who as a birthday present gave him the cannabis which was located by the police the following day. He declined to name the supplier or give any information tending to identify him. Further, he gave evidence concerning his dependency and stated that the cannabis which was seized was for his own use, not for sale or supply.
The only further evidence of possible relevance to the cultivation charge, was from a police constable who said that on 12 July 1999 he saw Mr Cockburn in possession of a wad of notes, about two inches thick. He heard the appellant ask his son how much he wanted, $100 or $1000, and saw a $100 note exchange hands. In cross-examination Mr Cockburn accepted that this event occurred, but said he was in possession of only $400 which he had withdrawn from a bank account.
If anything, this evidence might have detracted from the Crown case with reference to the cultivation charge, since it placed the appellant in possession of a significant sum of money a short while before he was found with the cannabis which formed the subject-matter of the charges. On the other hand, in relation to the charge of possession for supply, the money evidence may have been regarded as supportive of the Crown case.
The Argument:
Ms Bulger submitted that the verdict of guilty on the charge of cultivating cannabis was “against the weight of the evidence”. That, of course, is not the relevant test. Section 385(1)(a) of the Crimes Act 1961 provides:
(a)that the verdict of the jury shall be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.
In short, the issue in this case is whether the answers which Mr Cockburn gave provide a sufficient basis for the verdict of the jury.
We note that there was no challenge to the terms of the summing-up. Indeed the trial Judge squarely put the issue to the jury, with due emphasis upon the fact that the Crown case was dependent upon interpretation of the relevant answers as constituting an admission of cultivation. He also clearly explained to the jury that even if the appellant’s explanation concerning how he acquired the drug was not accepted by them, if it raised a reasonable doubt, an acquittal must result.
We do not doubt that there was sufficient evidence upon which the jury could return a verdict of guilty. The relevant exchange between the detective and Mr Cockburn was brief. The latter was reluctant to say too much. His answers to the effect that he just wanted to see how much he got off his plants and that the leaf (as opposed to the head material) was good fertiliser, provide a sufficient foundation for the jury to conclude to the required standard that Mr Cockburn had grown the cannabis.
It is singularly significant that an application for discharge pursuant to s347 of the Crimes Act was not advanced to the trial Judge. If, as is now argued, there was insufficient evidence to enable a properly-directed jury to convict then we would have expected an application to be made. That such did not occur is not decisive on appeal but, we think, is silent confirmation of the view which we have independently formed concerning the adequacy of the proof. For these reasons the appeal against conviction is dismissed.
Sentence Appeals:
The appellants were sentenced on 9 June 2000. The Judge imposed concurrent terms of two and a half years imprisonment upon the two charges against Mr Cockburn. With reference to Mr Thomson, albeit he was found guilty of only possession of cannabis for supply, the Judge considered there was no basis to differentiate and imposed a like sentence of imprisonment.
The sentencing of both men was approached on the footing the case fell within category two of R v Terewi [1999] 3 NZLR 62 (CA). That is that it was a case of small-scale cultivation and/or of possession for the purpose of supply, of cannabis for a commercial purpose (ie with the object of deriving profit). Accordingly the starting-point in arriving at appropriate sentences was between two and four years, unless it could be said that the commercial element was “infrequent” or of a “very limited extent”. We agree that the two cases were appropriately positioned in this category.
The seized cannabis comprised one larger bag which contained 500 grams of good quality material estimated by the police to have a value of about $3000. There were sixteen small bags containing 21.8 – 25.5 grams each, which a detective considered were consistent with ounce deal bags, although a little short of the required 28 grams. There was also a small bag found elsewhere in the house which contained about 17 grams of cannabis. The total quantity was about 890 grams. At sentencing the Judge placed the value of the cannabis in the round, at $7000.
Mr Cockburn is now 57 years of age, resided alone, and was in receipt of a benefit at the time he was sentenced. He had convictions in 1993 – 94 for cultivating cannabis, possession of cannabis (2) and possession of a class B controlled drug. All of these offences attracted community-based sentences. The pre-sentence report and a number of references, painted a tragic picture. Previously Mr Cockburn was in business but in about 1990 that business was lost. At much the same time he was separated from his wife, and family. In recent years his life has been dominated by cannabis use, which in turn culminated in the present convictions for cultivation and possession of that drug for supply.
Mr Thomson is aged 32 years, was also a beneficiary at the time of his arrest, and had an extensive list of previous convictions. These were predominantly for offences of dishonesty, but included cannabis-related matters. In particular, in October 1997 Mr Thomson was sentenced to eighteen months imprisonment upon a charge of cultivating cannabis. Unlike Mr Cockburn, therefore, he had previously served a sentence of imprisonment.
Having placed the case in category two of Terewi, the sentencing Judge noted the personal circumstances of the appellants, but observed the need for a deterrent approach, and concluded that sentences of two and a half years were appropriate in each case.
The sentence appeal in Mr Cockburn’s case was essentially based on two propositions : that the starting-point adopted of two and a half years imprisonment was too high and that it was not apparent from the sentencing remarks that any, or sufficient, allowance was made for the particular personal circumstances of the appellant. With reference to the former, attention was drawn to the considerable evidence which demonstrated Mr Cockburn’s addiction to cannabis. Hence, it was submitted, a judgment was required concerning the scale of the offending with proper allowance to be made for the cannabis required for personal use.
With reference to personal circumstances, while acknowledging they could be given limited weight, Ms Bulger stressed the appellant’s age, the fact that this was his first sentence of imprisonment, the gap of about six years since his last cannabis-related offending, and the sad aspects of Mr Cockburn’s personal life. She argued these required recognition, and that it was not apparent from the sentencing remarks what allowance had been made for personal circumstances.
We have closely considered these arguments. At the end of the day we are not persuaded that the sentence imposed was beyond the range appropriate for this offending. It is true that there was scant evidence available to enable an assessment to be made concerning the criminality involved in the cultivation offence. However, given the make-up of the sentence, that aspect did not result in any increase. With reference to the possession for supply sentence, we conclude that two and a half years imprisonment was very much within the range indicated in Terewi. Although a defined discount was not made on account of personal circumstances, it is evident from the sentencing remarks that the trial Judge was well-appraised of them and brought them to account in arriving at a sentence towards the bottom end of the category two range in Terewi. For these reasons Mr Cockburn’s appeal against sentence must also be dismissed.
The sentence appeal by Mr Thomson was advanced on the basis that the Judge failed to properly address the issue of his criminality and made no, or insufficient, allowance for personal circumstances. In particular, it was stressed that the Crown case against Mr Thomson was presented on the footing he was a party to Mr Cockburn’s offending. Terewi, Ms Williams submitted, established sentencing ranges for principal offenders, not parties.
On a personal front attention was drawn to Mr Thomson’s efforts in recent times to disassociate himself from gang connections and establish a family life out of Dunedin near Port Chalmers. The circumstance of disassociation, counsel submitted, required recognition by way of a discernible reduction in the penalty otherwise appropriate.
We consider that the major issue with reference to this appellant lay in the assessment of his criminality by comparison to his co-offender. The two men were apprehended at Mr Cockburn’s home and he claimed ownership of the cannabis. As against that there was clear evidence of Mr Thomson’s involvement in packaging the cannabis into deal bags. Moreover, a crude tick list was found in his wallet. The sentencing Judge having heard the evidence during a two day trial was best placed to make an assessment of relative criminality.
In the end result he concluded that Mr Thomson was involved in a small-scale dealing enterprise and that there was no basis to differentiate between offenders. In this regard, Mr Thomson’s past record which included three instances of cannabis-related offending (two of them quite recent) which attracted sentences of imprisonment, was obviously an important factor. Again, we are satisfied that to the extent he was able to the sentencing Judge brought to account personal circumstances in fixing the effective sentence at two and a half years imprisonment, in terms of the range indicated by Terewi. This of course was not a case where credit for pleas of guilty could be given.
We have also considered Mr Thomson’s sentence as compared to that of his co-offender, and asked whether there was such disparity as to require the intervention of the Court to achieve the proper appearance of justice : R v Rameka [1973] 2 NZLR 592 (CA). There are aspects of the case which could have provided a basis to differentiate between the two, but we are not persuaded that the learned Judge was wrong in the view which he reached. In short, if Mr Thomson’s criminality was less, his past record of cannabis-related offending had also to be brought to account. Again, we observe, the trial Judge was best placed to make the relativity assessment which was required.
For these reasons Mr Thomson’s appeal against sentence is likewise dismissed.
Solicitors:
Aspinall Joel Radford Bowler, Dunedin, for Thomson
Caudwells, Dunedin, for Thomson
Crown Law Office, Wellington
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