The Queen v Scott Edward Percy

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 89/00

THE QUEEN

SCOTT EDWARD PERCY

Hearing:	31 May 2000 (at Auckland)
Coram:	Tipping J Williams J Goddard J
Appearances:	L Bidois for Appellant K Raftery for Respondent
Judgment:	14 June 2000

JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J.

Having been found guilty by a jury in the District Court at Rotorua of charges of possession of equipment for cultivating cannabis and unlawful possession of a firearm on 8 March 2000 the appellant, Mr Percy, was sentenced to concurrent terms of 18 months imprisonment on each. He had earlier pleaded guilty to a charge of possession of instruments for the purposes of smoking cannabis and was convicted and discharged on that count.
He now appeals to this Court against the sentences of imprisonment on the ground that they were manifestly excessive in the circumstances.
On 14 September 1998, as a result of information received from the public of suspicious activity in a forest area near Rotorua, three members of the Armed Offenders Squad dressed in civilian clothes gained access to the area via a locked gate and systematically searched bush and farmland. Whilst doing so they were confronted by Mr Percy. Dressed in camouflage clothing, he was carrying a cocked and loaded .303 rifle and was patrolling the police officers’ tracks. Posing as rangers of the Department of Conservation, the police left the area without causing suspicion but an armed squad of police returned to the area later that day. They found a well concealed campsite in a gully in dense native bush. Mr Percy was in occupation. He surrendered when called on. Police inquiries showed that the camp-site was well-provisioned with sufficient food and cooking equipment to last for a considerable time, together with a 50kg bag of fertilizer and other material commonly used in the preparation of cannabis plots and the growing of cannabis plants, though no cannabis seeds were found. The .303 rifle was at the campsite. It had been cut down. Six rounds of ammunition were in the magazine.
At his trial on 27 and 28 January 2000, Mr Percy put forward an innocent explanation for his presence at the site and his possession of the firearm and other materials but by its verdict the jury plainly did not accept Mr Percy’s version of events.
In his sentencing remarks, the learned District Court Judge noted that the jury’s verdict accepted that the equipment which Mr Percy had with him was to be used for cultivating cannabis. Evidence at the trial showed that cannabis growers commonly prepare their plots at the time of the year when Mr Percy was apprehended. After referring to the favourable pre-sentence report, the testimonials presented in mitigation and Mr Percy’s personal circumstances, the learned District Court Judge observed (p 2) :
There are aggravating features in this case. They are the combination of the firearm with a cannabis operation. In those circumstances the potential for armed conflict and confrontation and tragedy is ever present. The fact that it was a loaded firearm available for immediate use is an aggravating factor and I note the evidence at trial that when you were observed with the firearm it was loaded and on full cock.
In mitigation it can be said that you have no previous convictions that give the Court any cause for concern in sentencing this morning. You are obviously well thought of by many people as is evidenced by the testimonials that have been presented. It is also difficult to assess the scope of the intended cannabis operation and so to some extent that weighs in your favour.
Then, after referring to R v Peterson [1994] 2 NZLR 553 and R v Terewi [1999] 3 NZLR 62, the learned Judge concluded (p 3)
In this case, there is an overriding need, in my view, to impose a sentence which will deter you and others from this behaviour. The potential for real tragedy, as I indicated before, is very real in circumstances where a firearm is involved with any cannabis operation and although as Mr Bidois has submitted the extent of that cannabis operation is difficult to gauge, nevertheless, the jury’s verdict indicates quite plainly that they accepted that the firearm was present there for use in connection with the cannabis operation and no other innocent purpose.
In his submissions, Mr Bidois, counsel for Mr Percy, submitted that if the charge of possession of equipment for cultivating cannabis was seen on its own, a sentence of 18 months imprisonment was manifestly excessive for a person such as Mr Percy with no relevant previous convictions. However, he also accepted that possession of a cocked and loaded firearm in those circumstances was a serious aggravating factor and that accordingly a term of imprisonment was inevitable. That notwithstanding, Mr Bidois submitted that the overall sentence of 18 months imprisonment should be reduced to 13 months and that the Court should consider suspending that term having regard to the fact that cultivation had not been commenced and to Mr Percy’s personal circumstances.
He also relied on R v Fenton (CA 247/99) where an 18 month sentence of imprisonment was reduced to 13 months for an appellant who had actually cultivated a number of cannabis plants which were nearing maturity when he was apprehended although he acknowledged that there was no firearm present in that case.
For the Crown, Mr Raftery pointed to the extent of Mr Percy’s cultivation preparations and the necessity to deter and protect the public from persons using large calibre rifles which are loaded and cocked in circumstances such as this. He submitted that the sentence was appropriate and that suspension was not a realistic possibility.
Whilst we accept that a sentence of 18 months imprisonment on the charge of possession of equipment for cultivating cannabis might, when seen on its own, be regarded as at the upper end of the range, we agree with the learned District Court Judge in his assessment of the aggravating features in this case. Mr Percy was found patrolling the area with a loaded and cocked rifle in circumstances where serious injury or death must be seen as a present possibility. Those who cultivate cannabis in isolated areas and arm themselves to protect their “patch” must know of the dangers not just to others who might be engaged in similar illicit activities but also to trampers and other bush users. Carrying firearms in such circumstances is to be deterred.
Seen in that light, in our view, 18 months imprisonment on the counts on which Mr Percy was convicted properly encapsulated the totality of his criminal offending.
We have also given consideration to Mr Bidois’ submissions that the term of imprisonment should be suspended having regard to the circumstances of this case and Mr Percy’s recent successful efforts to reduce his reliance on cannabis, obtain a job and accept his family responsibilities. Whilst those efforts are to be commended, in our view they are insufficient to outweigh the possession and use of a firearm in circumstances such as this.
The appeal is accordingly dismissed.

Solicitors:

Chadwick Bidois, Tauranga, for Appellant
Meredith Connell, Auckland, for Crown

[2000] NZCA 83

14 June 2000