The Queen v Shelford
[2006] NZCA 40
•22 March 2006
IN THE COURT OF APPEAL OF NEW ZEALAND
CA3/06
THE QUEEN
v
DAMIEN COREY SHELFORD
Hearing:7 March 2006
Court:William Young P, Robertson and Allan JJ
Counsel:R J Bowden for appellant
M D Downs for Crown
Judgment:22 March 2006
JUDGMENT OF THE COURT
A The appeal against conviction is adjourned until Monday 15 May 2006.
BThe appeal against the sentence of 21 months’ imprisonment is dismissed.
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REASONS
(Given by Allan J)
Introduction
[1] This is an appeal against conviction and sentence in respect of charges brought under ss 6 and 13 of the Misuse of Drugs Act 1975 (the Act).
[2] On 15 November 2005, the appellant was arraigned in the Whangarei District Court by Judge D J McDonald on charges of possession of cannabis for a purpose specified in s 6(1)(d) or (e) and of possession of utensils for the purpose of the commission of an offence under the Act.
[3] Mr Shelford pleaded guilty on arraignment to the charge of possession of utensils and was remanded for sentence. He was found guilty by a jury on the other charge following trial. On 1 December 2005 he was sentenced to 21 months’ imprisonment for the drug offending and an additional three months’ imprisonment (against which there is no appeal) imposed under s 106E of the Summary Proceedings Act 1957 in respect of outstanding fines. Leave to apply for home detention was granted.
The appeal
[4] The appeal against conviction is advanced upon the basis that this Court’s decision in R v Phillips [1991] 3 NZLR 175, confirmed in R v Hansen CA128/05, 29 August 2005, no longer represents the law. Those cases are authority for the principle that the onus carried by an accused person in terms of s 6(6) is a legal onus; that is, the presumption enacted by the subsection may be displaced only by proof on the balance of probabilities that a controlled drug was not in the possession of an accused person for a purpose set out in subsection (c), (d) or (e), as the case may be, of s 6(1) of the Act. It is submitted on behalf of the appellant that s 6(6) of the Act imposes upon an accused person merely an evidential, rather than a legal or persuasive, onus . The Judge summed up to the jury in terms consistent with R v Phillips and R v Hansen.
[5] The decision in R v Hansen was the subject of an appeal heard in the Supreme Court on 22 February 2006. The judgment of that Court has not as yet been delivered. The appropriate course is to adjourn the appeal against conviction. It will be relisted for mention on Monday 15 May 2006 at 10 am and will then be dealt with in the light of the Supreme Court judgment if it is then available.
[6] The appeal against sentence is advanced on two alternative grounds. First, it is said that the sentencing Judge took a view of the facts for sentencing purposes that was not reasonably open to him. Secondly, it is submitted that the sentence was, of itself, manifestly excessive.
Facts
[7] On the morning of 5 April 2005, the police executed a search warrant at Mr Shelford’s home in Whangarei. A cannabis plant was found on the kitchen bench. Section 18(2) of the Act was thereupon invoked and a search of the residence was conducted. The police located a white plastic bag containing 25 grams of low quality cannabis leaf (“cabbage” as it is known in the drugs world), a pipe for consuming cannabis, a set of scales and a bag within which was found four plastic bags, each containing 27-30 grams of high quality cannabis head material.
[8] The appellant claimed, both to the police and at trial, that all the cannabis was for his own use.
The Judge’s view of the facts
[9] By reason of the quantity of cannabis found at the appellant’s residence the provisions of s 6(6) of the Act applied at trial. Therefore the appellant had an obligation to establish on the balance of probabilities that all of the cannabis was for his own use and not for the purpose of supply. The Judge directed the jury accordingly. Although the guilty verdict reflected the appellant’s failure to satisfy the burden of proof which rested upon him, it says nothing about whether the jury believed that all, or simply some, of the cannabis was intended for supply. The jury may have thought that most, or indeed all, of the cannabis was intended for supply, or it may have thought that most of it was intended for the appellant’s personal use, or there may have been no commonality of view on the point. We simply do not know.
[10] A sentencing Judge must accept as proved all facts, express or implied, that are essential to a finding of guilt: s 24(1)(b), Sentencing Act 2002, and may accept as proved any fact that was disclosed by evidence at the trial: s 24(1)(a). But it is for the Crown to prove beyond reasonable doubt the existence of any disputed aggravating fact: s 24(2)(c).
[11] Here, the only fact essential to the finding of guilt, was that some of the cannabis was in the appellant’s possession for the purpose of supply. The sentencing Judge was therefore obliged to make a finding as to the factual basis which under-pinned the sentence: R v Accused [1998] 1 NZLR 422; R v Houia CA163/94, 9 August 1994.
[12] In the former case this Court noted that a sentencing Judge was entitled to reach his or her own conclusion on the evidence where the jury’s verdict did not of itself provide an indication of the precise factual basis for the verdict, and will not necessarily be bound to accept the most favourable version from the prisoner’s point of view.
[13] Mr Bowden submitted to the District Court Judge that the appellant ought to be sentenced upon the footing that part only of the cannabis was intended for supply. The Judge declined to take that course. He said:
Having had the benefit of presiding over the trial, I do not consider that I can properly do that. I propose to sentence you on the basis that the whole four ounces that was found in your bedroom packaged in the way it was, was for on sale by you.
The Judge left out of account the low quality cannabis leaf.
[14] Mr Bowden submitted in this Court that the sentencing Judge had insufficiently stated his reasons and that, accordingly, this Court was obliged to take a view of the facts consistent with the verdict most favourable to the appellant: R v Houia. We doubt whether Houia is authority for Mr Bowden’s proposition, but in any event we are satisfied that the Judge did sufficiently state his reasons for concluding that it was appropriate to sentence the appellant on the basis that all of the high quality cannabis head material was intended for supply.
[15] The appellant’s first argument therefore fails.
Was the sentence manifestly excessive?
[16] Sentencing for cannabis cultivation (and by extension possession of cannabis for supply), is influenced by the decision of this Court in R v Terewi [1999] 3 NZLR 62. In the District Court counsel were agreed that this case fell within Category 2 in Terewi which:
…encompasses small scale cultivation of cannabis plants for a commercial purpose, that is with the object of deriving profit. The starting point for sentencing is generally between two and four years, but where sales are infrequent and of very limited extent, a lower starting point may be justified.
[17] Subsequently, in R v Andrews [2002] NZLR 205, 209, this Court observed that if the commercial element is very small, then that may be a factor which can properly be reflected in a reduction of the normal starting point for a category 2 case.
[18] Here, the Judge proceeded on the basis that all four ounce bags of cannabis, weighing a total of 113 grams, were in the possession of the appellant for on-sale. Put at its lowest, the value of the cannabis was $1000. Despite those findings, nevertheless the Judge acceded to the submission of counsel for the appellant, that a starting point lower than two years was appropriate. The Judge fixed 18 months. To that he added a further three months by reason of the presence of aggravating factors. At the time of the offending the appellant was serving a sentence of community work. More generally, the appellant’s record of criminal convictions, despite his relative youth (24 years at the time of the offending), was extensive and varied. It included convictions for violence, driving offences, wilful damage and dishonesty. In addition, the appellant had previously been convicted of various offences against the Misuse of Drugs Act, including possession of a Class B drug, possession of cannabis and possession of utensils. He had already served a term of imprisonment in respect of his drug offending.
[19] Mr Bowden does not challenge the uplift as such. Rather he submits that in all the circumstances the starting point was too high.
[20] In support of that submission he referred to R v Mukhtar Ali CA156/04, 29 July 2004. Unlike this case, there the sentencing Judge did not indicate the volume or value of the cannabis taken into account in imposing sentence. The evidence disclosed a small quantity of cannabis plant material, sufficient for approximately 10 cigarettes found concealed in a bedroom, together with five deal bags of dried cannabis head material weighing a total of 142 grams, and a plastic supermarket bag containing 510 grams of slightly damp, lesser quality cannabis leaf material. The police also located a set of electronic scales and cash at several points in the house totalling something over $1500. The appellant and his wife were both beneficiaries. The Crown had conceded that a starting point of 18 months was appropriate, and it was the sentence imposed by the Court and upheld by this Court.
[21] Mr Bowden submits that this case ought not to have attracted a sentence as severe as that in Mukhtar Ali. The quantity of cannabis material here was smaller. There were no indicators of active dealing, and at 24 years of age the appellant could properly be classed as a younger offender. As to the last point, we note that the personal circumstances of drug offenders carry little weight in the overall assessment of an appropriate sentence.
[22] He also submits that the overall sentence is out of line when compared with cases such as Hansen where $4,350 worth of cannabis produced a sentence of two and a half years imprisonment on appeal. In Hansen (at [52]) this Court noted that comparisons with other cases are of limited utility. Because each case is highly fact influenced there is the potential for distortion.
Discussion
[23] We have recently observed that this Court will not ordinarily be assisted on sentence appeals by the citation of High Court authorities, where there are sufficient decisions in this Court indicating clear principle: R v Davis, R v Collinson CA440/04, CA13/05, 20 October 2005 [64]. Similarly, where a tariff decision of this Court exists, the Court will ordinarily derive little help from the citation of other decisions of this Court. This case involved cannabis offending to which the tariff decision in R v Terewi applies. There is little to be achieved by reference to other decisions of the Court simply by way of comparison, when the very point of tariff decisions is to obviate the need for such citation.
[24] Having said that, neither of the two cases relied upon by Mr Bowden persuade us that the sentence imposed in this case was out of line. The volume and value of cannabis found at the appellant’s residence was of the same order as that involved in R v Mukhtar Ali and it was significantly higher than the quantity necessary to trigger the presumption. Moreover, the appellant’s previous record (which included previous drug offending), and the fact that the offending occurred while he was serving a sentence of community work, are factors the Judge was bound to take into account in fixing an appropriate sentence. The sentence imposed was below the lower end of the range prescribed by Terewi for Category 2 offending. Although not lenient, the term of 21 months imprisonment ultimately imposed fell within the range available to the sentencing Judge. We are not persuaded that it was wrong in principle.
Result
[25] The appeal against conviction is adjourned to Monday 15 May 2006 at 10 am pending delivery by the Supreme Court of its judgment in R v Hansen. The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington
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