The Queen v John Harold Silson

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 172/01

THE QUEEN

JOHN HAROLD SILSON

Hearing:	30 August 2001
Coram:	Richardson P Heron J Chambers J
Appearances:	G J King for Appellant J C Pike for Crown
Judgment:	30 August 2001

JUDGMENT OF THE COURT DELIVERED BY HERON J

This is an appeal against a sentence of three years imprisonment imposed on 11 May 2001 in the High Court at Auckland for cultivation of cannabis. Possession of cannabis plant and possession of seeds were dealt with by sentences of two and two and a half months concurrent with the cultivation sentence.
Earlier this year, a number of cannabis plots were observed near a dwelling house on Paroa Bay Road, Russell. A search was undertaken and there were found to be nine separate cannabis plots which were sophisticated and well constructed with a total number of 167 plants growing. One of the plots was near the house, others were further away in the bush. One plot had as many as 105 plants in it, some of them more than a metre high. The plots appeared to be well looked after, some of them surrounded by wire mesh, and they had been recently cultivated. The police considered that income from the crop could amount to more than $100,000. Some 8,800 cannabis seeds were found in the appellant’s house and some dried amount of cannabis leaf was also found. The appellant and his wife denied any involvement in the growing of cannabis but later the appellant admitted doing so and acknowledged ownership of all the relevant plants.
The appellant claims that this crop was the first that he had ever planted and he says that he was very much inexperienced and a somewhat naive grower of cannabis. His main reason for using and growing cannabis was for the sake of his wife who suffered from a cyst on the stem of her brain which was said to cause unpredictable collapses at times. Cannabis provided a first time relief for her in what was an uncertain medical situation and he elected to also use the drug.
The appellant is a wood sculptor and apparently makes his living from selling when he can, his various artistic works. A retailer says that the work is of a high standard and that he has sold some of it overseas. It seems that his friends support him and accept that the reason for the cultivation was to supply her and him with a ready supply of cannabis. His probation officer accepts his explanation and confirms his quite recent resort to using cannabis. He is aged 47 with no previous convictions.
The sentencing Judge remarked on the extent to which cannabis offending was a feature of Northland. On sentencing the Judge was supplied with photographs which he suggested supported the contention that this was an overall sophisticated and well husbanded cultivation. The Judge put aside the personal circumstances surrounding the appellant’s wife, and in particular because of what he described as a relatively large scale cannabis growing operation.
When the appellant contested that the amount of cannabis grown would be far in excess of the daily needs of him and his wife and that others were involved, the Judge adjourned the sentencing to see whether that needed to be further clarified. It was not pursued. When resuming he told the appellant that the Court of Appeal had recently set down sentencing guidelines and that within those guidelines the appellant was in category 3. He thought that whilst he was not charged with possession for supply, and that he contended he had not sold cannabis, the volume of cannabis that he was producing would have most likely led to sale. Having taken a four year starting point, he imposed a sentence of three years imprisonment, taking into account so far as he could, his personal circumstances and in particular an early plea of guilty.
Category 3 of R v Terewi [1999] 16 CRNZ 429 is described as:
It involves large scale commercial growing, usually with a considerable degree of sophistication and organisation.
Mr King submitted on behalf of the appellant that the Judge’s assessment was wrong and that not sufficient weight was given to the appellant’s personal circumstances. In broader terms he said too much emphasis was placed on deterrence and that R v Terewi contravened the New Zealand Bill of Rights Act 1990 by subordinating personal circumstances in favour of deterrence. We do not intend in this case, to revisit R v Terewi on the wider grounds suggested which if advanced would be for a court of five or more Judges, nor do we think the factual basis for any such broad attack on general principles has been laid in this case.
Mr King emphasised that the large value of plants had arisen as a result of favourable growing conditions and a lack of knowledge on the appellant’s part of the likely number of plants in relation to the personal needs of him and his wife. There had been no charge of possession for supply, no sales of cannabis had in fact occurred and the commercial element emphasised in R v Terewi had not been plainly demonstrated.
The Crown submits that the Judge’s assessment was the correct one and that the appropriate inferences should be drawn from the extent of the crop, the immediate denial of ownership, later retracted, and the extent of the cultivation of the crop itself.
In R v Terewi it was thought annual revenues of more than $100,000 clearly put the operation into category 3. It was said that penalties however between the two categories may not differ greatly.
We think there is room in this case for the view that the attendant inference from the value of the crop is to be tempered by the overall circumstances relating to the growing of the crop and the lack of any real evidence of intention to sell surplus supplies having regard to the relative novelty of the appellant’s undertaking and the way in which it came about.
In a letter to the court on sentencing, he said:
I had been given a jar of cannabis seeds early last year. Having not grown before I had no idea of the quantity they would produce. I had been informed to plant as many as I could fit into the area I had prepared as only the female plant was any good for smoking, and that more often the greater amount would be male, and that many would be lost to possums, rats and possibly goats.
The Crown did not suggest that this cultivation had occurred any earlier than suggested but had been detected by aerial surveillance which had operated for a number of years.
We consider the commercial aspect of the undertaking as not entirely established on the special circumstances of this case such as would meet the category 3 threshold. Obviously there will be cases that approach the threshold but are in effect closer to category 2 small scale commercial undertakings in the end. This is such a case. We think therefore, the starting point of four years was too high and one of three years was more appropriate. We adopt the Judge’s level of discount of one year for the plea of guilty and other factors and conclude that a sentence of two years imprisonment is appropriate.
The appeal is allowed, the sentence of three years is quashed and one of two years is substituted. Leave to apply for home detention is declined.

Solicitors:
Crown Law Office, Wellington for Crown

[2001] NZCA 240

30 August 2001