The Queen v Pattison

IN THE COURT OF APPEAL OF NEW ZEALAND

CA37/02

THE QUEEN

ROBIN JAMES PATTISON

Hearing:	27 June 2002
Coram:	Gault P McGrath J Anderson J
Appearances:	W D McKean for Appellant J C Pike and A Markham for Crown
Judgment:	27 June 2002

JUDGMENT OF THE COURT DELIVERED BY GAULT P

The Crown appeals, with the leave of the High Court, under s144(2) Summary Proceedings Act 1957 from the judgment of the High Court delivered on 31 August last year. In that judgment, the appeal by the respondent against a sentence of imprisonment for 18 months for cultivation of cannabis was allowed and a fine of $250 was substituted.

Background

The respondent was charged on an information alleging that on 20 March 2001 he cultivated the prohibited plant cannabis contrary to s9(1) and (2) Misuse of Drugs Act 1975. He pleaded guilty. A summary of facts, to which no objection was taken at the time, was produced for sentencing. It described the execution by the Police of a search warrant at the respondent’s address on 20 March 2001. The summary states:
… a large amount of freshly picked cannabis was found spread out in the lounge area of the dwelling.
It was clear that a number of cannabis plants had recently been harvested and the Defendant was in the process of manicuring the high quality seedless cannabis heads whilst watching television, when the police arrived at the address.
A subsequent detailed search was made of the property and further amounts of cannabis were found.
In the spare bedroom of the two bedroomed cottage, a total of 8 various plastic bags were found containing 1.149 kilograms of high quality seedless cannabis heads, and a further 72 grams of similar plant material was found spread out on a cardboard box drying in the bedroom.
In the Master Bedroom, in each bedside cabinet, beside the double bed, 5 grams and 4 grams of further good quality plant material were found in small plastic bags.
In the garage of the address, 1.619 kilograms of low grade cannabis leaf was found spread out on the garage floor. This plant material was dry. A further 298 grams of similar plant material was found in a large plastic container. In an upright freezer a plastic rubbish bag containing 199 grams of further low grade cannabis was found, and in a chest freezer alongside 1.948 kilograms of similar plant material was found packaged in 5 plastic bags.
Eleven stems of high quality seedless plant material were also found drying in the garage and weighed 158 grams, and close by 50 grams of similar high quality plant material was found spread out drying on newspaper.
When questioned about the cannabis, the Defendant readily admitted that he had cultivated a number of plants in a nearby plot in an area of scrub at the rear of the farm property.
He said the freshly picked cannabis found in the lounge had only been harvested the day before and that the dried plant material had come from plants which he had harvested about a week earlier.
The Defendant then escorted police to the area of bush where he had grown the plants and there police located a cannabis plot, measuring 12 metres x 3 metres. The plot was protected by an electric fence and a number of irrigation drains had been dug through the plot to assist the plants in growing. Still growing in the plot was one large 1.5 metre tall cannabis plant which was well formed and contained numerous high quality seedless heads, and a further four 1 metre tall cannabis plants were located. Examination of the plot revealed a total of a further 24 cannabis plants had recently been harvested from it.
In total police located 1.438 kilograms of high quality seedless cannabis heads, 4.064 kilograms of low quality plant material and 2.76 kilograms of wet, recently harvested, plant material (it is accepted by police that this wet weight would reduce to a third of its original weight once dried).
In explanation the Defendant said that the cannabis was all his and that he had grown it. He said that he was a regular cannabis user and that although he did not sell it, given his good harvest, he would not doubt give some to his mates to smoke and when in social situations, just to be friendly.
Counsel who represented the respondent at sentencing proceeded on the basis that the cultivation charge was in respect of all of the cannabis located. That was consistent with the admissions to the police recorded in the summary of facts.
The District Court Judge was provided with an affidavit from an experienced police officer dealing with the value in the market of cannabis of different quality. He placed a value on the cannabis located of $16,900. The Judge accepted a submission that the value of some of the freshly harvested cannabis should be adjusted downwards to allow for reduced weight after drying. Referring to the summary of facts the Judge said:
The second page of the summary sets out the details, the plots that were inspected and the attitude of the defendant as reflected by his guilty plea was to immediately accept responsibility. In view of that he is charged with cultivation and it may very well be that the investigating officers thought there was no need, which there is not in my personal view, to charge with the question of supply when one has regard to the amount and as said by counsel for the Crown, the quantity and the quality of cannabis adequately reflects what was going on upon this particular property.
The Judge assessed the offending as falling within the second category identified in R v Terewi [1999] 3 NZLR 62 stating that quite clearly the quality and quantity of the cannabis has the obvious inference that it was grown with the object of deriving profit.
From an assessed sentence of 2½ years imprisonment the Judge deducted a year for mitigating factors including the guilty plea and imposed the 18 month sentence.
Represented by different counsel, the respondent appealed to the High Court. We understand his primary ground was that the inference of commercial purpose was not justified on the material before the sentencing Judge. This seems to have given rise to an issue of what might be taken into account in determining whether the cultivation had a commercial purpose. At some point the focus fell upon the fact that the information charged cultivation only on the one day – 20 March 2001.
In the outcome the Judge ruled as follows:
3.This appellant was charged that on 20 March 2001 he did cultivate a prohibited plant, namely cannabis. Cultivation of cannabis is a specific offence provided for under s9 Misuse of Drugs Act. It by its very wording and its nature obviously refers to plants which are growing as distinct from plants which have been cut and stored or had other treatment done to them. Charges in respect of cannabis in another form may be laid under the provisions of, I think it is s6 and indeed if necessary a charge of possession of cannabis for supply to persons I think over the age of 18 can be specifically laid.
4.No such charge of having cannabis in possession for supply was laid despite the clear evidence cannabis in other than growing form was found in sufficient quantity to satisfy the presumptions provided for in the Act.
5.The police having elected therefore to charge simple cultivation when indeed they could have laid a charge for possession of supply, cannot in these circumstances in my judgment then ask the Court to sentence on the basis that it was a commercial operation which implies that the cannabis was in fact being grown for supply. Any accused particularly in this somewhat technical field of drug charging is entitled to know precisely what charges he faces and the basis for it.
6.These matters were not drawn to the attention of the sentencing Judge in the hearing before him and there appears to have been an argument as to which class of offending within R v Terewi [1999] 3 NZLR 62 the accused fell. Terewi was of course involving an accused who had pleaded guilty to a count of possession of cannabis for supply as well as the count of cultivation. It was therefore not simply a charge of cultivation. I am not saying in cases of cultivation it will not be possible because of the amount being cultivated to infer it was a commercial operation. Obviously such inference can be drawn in the appropriate case but in the present case cultivation was restricted on day stated in charge to five plants and as I have indicated the police by electing to proceed down this track and failing to lay any charge of possession for supply cannot I think be heard to say the five plants indicate a degree of commercialisation which justify a prison sentence.
The sentence was quashed and substituted with a fine accordingly.
Concern by the Crown that the High Court judgment has been interpreted as indicating that a commercial purpose in cultivation cannot be inferred from cannabis no longer growing unless there is also a charge of possession for supply led to the application for leave to appeal.
Leave was granted by Baragwanath J who formulated two questions of law:
(i)Can cannabis that at the time of police search has been harvested be the subject of a charge of cultivation?
(ii)May a sentencing court take into account, on a charge of cultivation, all types and amounts of cannabis found in the defendant’s possession – whether growing or harvested? In particular, can that amount of harvested cannabis alone properly found an inference of commercial cultivation.
In argument in this Court neither counsel contended other than that, in appropriate circumstances, harvested cannabis could be taken into account as evidence of prior cultivation and as evidence of aggravation on a charge of cultivation. That plainly is common sense and accords with the decision of this Court in R v Reed [1991] NZLR 190, 192. The fact that the harvested cannabis could be the subject of a separate charge of possession does not affect that: Lane v Auckland City Council [1975] 1 NZLR 353, R v Espie (CA183/80, judgment 5 November 1980).
The questions posed do not really arise from the judgment of the High Court in which the charge was construed, because of the specific date, as a charge of cultivating only the five plants found growing on that date.
However, even approached in that way, the fact that only a few plants remain growing after harvest of a much greater crop of which they formed part need not preclude an inference of commercial purpose. The context in which those five plants were grown might make the inference inevitable. Normally, however, the charge of cultivation would extend to the whole crop and relate to the time period over which it was grown.
Of course, the logical step that should have been taken by the Crown in this case would have been to seek amendment to the information to change the specific date to a period over which the harvested cannabis had, admittedly, been cultivated. We can see no reason why that would not have been allowed. The sentencing in the District Court had proceeded on the summary of facts and on the assumption by counsel for the respondent that the charge related to all the cannabis located.
Amendment would have enabled the real issue to be addressed. That was whether the inference of commercial purpose was justified. That could have been the subject of evidence at sentencing if put in issue in accordance with R v Bryant [1980] 1 NZLR 264.
Under s144(a) this Court on appeal has the same powers as the High Court had. We therefore could have entertained an application by the Crown to amend the information. However, responsibly, Mr Pike did not seek such an amendment. He considered that the lapse of time and the manner in which the matter had developed would make it unfair for the respondent now to be exposed to the possible re-imposition of a custodial sentence almost a year after that was quashed.
The main concern of the Crown is to dispel the apparent understanding resulting from the High Court decision that unless a separate charge of possession for supply is brought, cannabis no longer growing cannot be relied upon as supporting an inference that prior cultivation had a commercial purpose. As already indicated we do not accept that as correct.
Mr McKean submitted that, in fairness, in the circumstance that existed in this case, a separate charge of possession for supply should be required. That offence has as an element (albeit the subject of presumptions) the intention to supply (commercial purpose). An accused charged with that offence is entitled to have this element found by a jury. If it is to be inferred, or found for sentencing purposes by a Judge hearing evidence and then be used to justify a higher sentence on a charge of cultivation, the accused is, in effect, being denied the right to trial by jury on the issue contrary to s24(e) New Zealand Bill of Rights Act 1990.
To accept Mr McKean’s argument would seem to require exclusion of commercial purpose as a factor aggravating the culpability of cultivation. Even where the crop has not been harvested, the grower might be said to be in possession of the plants. The legislature cannot have intended that when creating the separate offences of cultivation and possession and we would require compelling authority before intruding into prosecution decisions on what charges are to be brought.
We do not accept that, in the circumstances with which we are presented, it is a breach of the right to trial by jury to have facts relevant to sentence determined by the sentencing Judge. That there is another offence in which intention to supply is an element (in fact with a higher maximum sentence) does not affect that.
The situation here is not the same as in R v Courtie [1984] 1 All ER 740 where the effect of the statutory provisions was that there were created offences with different maximum penalties according to the factual ingredients of the case. We are dealing with the single offence of cultivation of cannabis for which there is a maximum sentence (seven years) with the usual degrees of culpability depending on aggravating factors by reference to which appropriate sentences are to be fixed. To aid that assessment the judgment in R v Terewi gives guidance. That identifies commercial purpose as a significant aggravating factor, but it is still just that. Assessing its impact in a particular case is part of the sentencing exercise. Where there is dispute evidence should be heard in accordance with Bryant.
In his written submissions Mr McKean sought to characterise the charge of cultivation in respect of which it would be contended that there was a commercial purpose as a charge of the two separate offences – of cultivation and of possession for supply. We do not accept that. As we have already said, that factors of aggravation may constitute separate offences does not mean they cannot be considered. Commonly they are. It would make little sense to require both offences to be charged before that could be done.
In any event, in the present case, because of the stance taken by the Crown we need take the matter no further.
The appeal is dismissed.

Solicitors

Webb Ross Johnson, Whangarei, for Appellant

Crown Law, Wellington

[2002] NZCA 152

27 June 2002