The Queen v Kovacevich

[2006] NZCA 241

IN THE COURT OF APPEAL OF NEW ZEALAND

CA173/06

THE QUEEN

v

MICHAEL STEVEN KOVACEVICH

Hearing:28 August 2006

Court:O'Regan, Williams and Heath JJ

Counsel:G R Anson for Appellant

M T Davies and C F Parkhill for Crown

Judgment:5 September 2006 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Heath J)

Introduction

[1]       Mr Kovacevich and his wife, Ms McVinnie were charged with various offences arising out of the cultivation and possession of the Class C controlled drug, cannabis. 

[2]       Ms McVinnie pleaded not guilty to each of the 11 counts brought against her.  Mr Kovacevich pleaded guilty to three counts of cultivating cannabis and one charge of possession of equipment for the purpose of cultivating cannabis.  Mr Kovacevich pleaded not guilty to the remaining seven charges brought against him.  All pleas were entered, on arraingment, at the start of their trial.

[3]       Following a trial before Judge McDonald and a jury in the District Court at Kaikohe, both Ms McVinnie and Mr Kovacevich were found not guilty on all charges to which not guilty pleas had been entered.

[4]       On 4 May 2006, Mr Kovacevich was sentenced by the Judge who presided at the trial.  He was sentenced to an effective term of three years imprisonment.  That term was imposed on all three cultivation charges with a term of imprisonment of one year being imposed on the possession of equipment charge.  The sentences were to be served concurrently.

[5]       Mr Kovacevich appeals against the sentence imposed.  The challenge goes to findings of fact made by the sentencing Judge in relation to the nature of the cultivation enterprise. 

[6]       While acknowledging that Judge McDonald had the advantage of having presided over a trial that occupied some seven days, during which evidence of the cultivation operation was given, Mr Anson, on behalf of Mr Kovacevich, submits that the Judge’s findings of fact were inconsistent with not guilty verdicts returned by the jury.  Were it not for that alleged inconsistency, Mr Anson frankly conceded that he could not have challenged the District Court Judge’s view of the facts.

[7]       The approach taken by Judge McDonald to the facts on which he sentenced Mr Kovacevich was said, by counsel for Mr Kovacevich, to have led to the Judge wrongly placing the offending at too high a level, having regard to the guideline judgment of R v Terewi [1999] 3 NZLR 62 (CA).

Background facts

[8]       A search warrant was executed at the Kovacevich home in Ahipara on 14 December 2004.  The Judge described what was found as “a large sophisticated set-up for the cloning, seeding and growing of cannabis”.  In the garage underneath the dwelling, 71 plants were located.  They were housed in a growing room constructed for the purpose.

[9]       Seven large plants were in the growing room.  There were growing bulbs, light hoods, a fan and growing pots.  The remnants of cannabis plants and stalks were also found.  Paraphernalia associated with the cultivation of cannabis plants were located in, and adjacent to, a back-pack found near the growing room.

[10]     In the dwelling, the Police located four polystyrene containers in which cloned cannabis seedlings were growing: 269 seedlings were found.  Each polystyrene container was marked with a date. 

[11]     In total, some 340 plants were identified in the dwelling or growing room. 

[12]     A search of the surrounds of the property followed.  In a garden at the rear of the property, the Police found 11 plants which were one metre high.  About 65 additional clones were located at the rear of the section in two polystyrene containers. 

[13]     Inside a derelict house on the adjacent section, another growing room was located.  That room contained silver paper, growing lights and a further 11 large plants.  The power to that room was run from the Kovacevich home.

[14]     Fertilizer, pots and other paraphernalia used for the cultivation of cannabis were also found on or about the property.

The competing contentions

[15]     Mr Anson conceded, as he had before the sentencing Judge, that a sentence of imprisonment was inevitable.  Primarily, that concession was based on an aggravating factor involving earlier drug related offending. 

[16]     Mr Anson made two points in support of the appeal:

(a)That the jury must have accepted the out of Court admissions and denials made by Mr Kovacevich in order to reach not guilty verdicts on each of the charges to which Mr Kovacevich entered not guilty pleas.  Those admissions are said to negate any inference that the cannabis was cultivated for non-personal use.

(b)Mr Kovacevich’s acquittal on count 9 of the indictment (possession of a quantity of cannabis in excess of the amount at which a purpose of supply is presumed) required the Judge to approach sentencing on the basis that the cannabis was cultivated for personal use.

[17]     Mr Anson submitted that, if the jury had taken the view that the cultivation of cannabis was for commercial purposes, Mr Kovacevich could not have persuaded the jury on a balance of probabilities that the cannabis to which count 9 referred was in his possession for personal use.

[18]     Mr Davies, for the Crown, submitted that the factual findings made by Judge McDonald were open to him, particularly having presided over a lengthy trial.   Mr Davies submitted that this was not a case in which the Judge was constrained by a jury verdict in making findings of fact for sentencing purposes.

[19]     Alternatively, Mr Davies submitted that, even on the assumption that the verdicts constrained the Judge, the offending fell within the second category in R v Terewi, justifying the imposition of a sentence of imprisonment of the length imposed.

Analysis of competing submissions

[20]     Terewi, at [4], formulates categories of cannabis offending for sentencing purposes.

[21]     Category 1 comprises the growing of a small number of cannabis plants for personal use by an offender without any sale to another party occurring or being intended.  This Court indicated that offending falling within that category was “almost invariably” marked by a fine or other non-custodial sentence.

[22]     The second category encompasses small scale cultivation of cannabis plants for commercial purposes, with the object of deriving profit.  The Court remarked that, generally, the starting point for sentencing for such offending was between two and four years imprisonment.

[23]     Plainly, there will be offending involving cultivation which straddles the type of offending described in categories 1 and 2.  This case, if we were to accept Mr Anson’s submission that the jury verdicts prevented the Judge from forming his own view on the scale of the operation, would fall within that category.

[24]     The sophistication of the cultivation operation, even if one were to assume (we think unrealistically) that it was intended to stock-pile all the cannabis for personal use, would still attract a starting point beyond category 1, simply because imprisonment is inevitable.

[25]     The Judge took a starting point for sentence at three and a half years imprisonment, deducting six months for the guilty pleas.  The starting point included the period of one year for aggravating circumstances, an earlier conviction for cultivation of cannabis.

[26]     On any view, we regard the end sentence of three years imprisonment as within the range available to him.  On that basis alone, the appeal must fail.

[27]     However, we comment briefly on the submission relating to inconsistency with the jury verdict.

[28]     In R v Heti (1992) 8 CRNZ 554 (CA) at 555-556, this Court held that a Judge who has heard evidence at a jury trial is entitled, where the evidence supports it, to reach his or her own view of facts relevant to sentencing, provided that view is not inconsistent with an acquittal.

[29]     The only charges of cultivation that the jury had to consider arose out of Ms McVinnie’s role.  Plainly, there had been a cultivation operation.  Not only was that clear from the evidence summarised by Judge McDonald, but it was also confirmed by Mr Kovacevich’s guilty pleas.  The jury must have found that the Crown had not proved, beyond reasonable doubt, that Ms McVinnie actively participated in the cultivation process.

[30]     Therefore, there was no jury finding in respect of cultivation that could have constrained the sentencing Judge’s approach to fact finding for the purpose of sentencing.

[31]     Count 9 alleged that both Mr Kovacevich and Ms McVinnie had possession of a particular quantity of cannabis for the purpose of supply at a particular time.  By returning verdicts of not guilty in respect of both Mr Kovacevich and his wife, the jury cannot have been satisfied, beyond reasonable doubt, that the particular quantity of cannabis was in their possession for the purpose of supply.  That conclusion is not, however, inconsistent with a finding that the cultivating operation for which Mr Kovacevich accepted responsibility was sophisticated in nature with, at least, the potential for profit.

[32]     The existence, in two separate dwellings and their surrounds of so many cannabis plants, coupled with the construction of growing rooms for the purpose of cultivation, amply justified the Judge’s conclusion that “a large sophisticated set up for the cloning, seeding and growing of cannabis” existed.  On that view of the facts the case fell within the range available on the second category of Terewi.  Applying the Heti principle, we hold that the Judge was entitled to form his own view of the evidence.  The appeal fails on this ground also.

Result

[33]     The appeal against sentence is dismissed.

Solicitors:
McLeod and Partners, Kerikeri for Appellant
Crown Law Office, Wellington