The Queen v Shaun John Jordan

[2000] NZCA 114

IN THE COURT OF APPEAL OF NEW ZEALAND CA130/00

THE QUEEN

V

SHAUN JOHN JORDAN

Coram:	Thomas J Keith J Tipping J
Judgment: (Ex parte)	6 July 2000

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

1. The appellant, Mr Jordan, was convicted in the District Court at Christchurch on charges of possession of cannabis for supply, cultivation of cannabis and a related charge of theft of electricity.  He was sentenced to 2½ years imprisonment. He now appeals against that sentence.

2. The appellant applied for legal aid in respect of his appeal. The Registrar declined the application after the necessary consultation pursuant to s15 Legal Services Act 1991.  The appeal has, therefore, been determined on the basis of written submissions.

3. The jury found that the appellant and his co-offender, Mr Shellac, were operating a sophisticated cannabis operation involving hydroponics in the basement of a house.  The operation involved a significant amount of cannabis being grown in a designated growing room and a separate drying room with extractor fans and lamps. It was, as the sentencing Judge remarked, a substantial cultivation of cannabis for commercial purposes.  Mr Shellac pleaded guilty to the charges and was sentenced to two years imprisonment. In respect of that sentence he was given credit for his guilty plea and the absence of any previous convictions.

4. Mr Jordan’s submissions are based on his claim, which formed the basis of his defence at trial, that he was not involved in the operation other than to move some of the equipment for Mr Shellac.  He advances some facts in support of this claim and argues therefore he should have received a lesser sentence than Mr Shellac and not a greater one.

5. The sentencing Judge appropriately acknowledged the need for parity in a case such as this.  However, equally appropriately he acknowledged that the jury, on the basis of their verdict, must be taken to have rejected Mr Jordan’s claims, and found him to be fully involved in the operation.  The sentencing must proceed from these facts as found by the jury and accordingly the submissions of Mr Jordan based on an alternative narrative do not present a valid challenge to the sentence.

6. Mr Jordan also asked the Court to consider his personal circumstances as a factor in mitigation of sentence.  However, the direction of this Court has been clear on a number of occasions that in the commercial cultivation of drugs, the sentence must give greater weight to deterrence than to the personal circumstances of the offender.

7. The sentence of 2½ years imprisonment imposed on Mr Jordan is appropriate in itself and bears appropriate parity to that imposed on his co-offender, Mr Shellac with whom the jury found Mr Jordan was involved in the operation.  The sentencing Judge was unable to give Mr Jordan credit for either an early guilty plea or an absence of previous convictions and this resulted in him receiving a slightly greater sentence than Mr Shellac.

8. For these reasons this Court is satisfied that there are no grounds to interfere with the sentence and the appeal is accordingly dismissed.