The Queen v Stephen James Norfolk

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 195/01

THE QUEEN

STEPHEN JAMES NORFOLK

Hearing:	27 August 2001
Coram:	Richardson P Heron J Chambers J
Appearances:	J M Jelas for Crown S J O’Driscoll for Appellant
Judgment:	27 August 2001

JUDGMENT OF THE COURT DELIVERED BY HERON J

This is an appeal against a sentence of 18 months imprisonment imposed in the High Court at Invercargill, following a plea of guilty to cultivating a prohibited plant, namely cannabis.
Two cannabis plots were located in bush and scrub in the Doolans Creek Valley near Gibson, Queenstown. It is a remote back country area used to graze cattle and sheep. The police observed the appellant arriving at the scene and noted that he examined the tips of the plant, pulling out two male plants to begin with, and then a further six male plants. This is a means of preventing the fertilisation of the female giving the female cannabis plant higher concentrations of the active ingredient, tetrahydra cannabinol and thereby producing a better product. He was apprehended and declined to make any statements and provided no explanation.
The area under cultivation was about 28 square metres and contained about 22 female plants. A second plot was a similar size containing 16 female plants. The average height was 1.37m. Other plants were found discarded in and around the plots having being pulled that day, or on an earlier occasion. The police estimate 89 cannabis plants were found and by the process earlier mentioned 51 plants discarded. The police estimate accepted by the appellant was that high grade cannabis material having a commercial value of up to $38,000 could have been produced from the remaining plants which appeared, to have been cultivated in the sense that they were protected by netting, and there was some suggestion of fertiliser having being applied.
The short point in this case was that the appellant’s case, having regard to its circumstances should not have been classified as a category 2 case for the purposes of sentencing tariffs outlined in R v Terewi [1999] 3 NZLR 62 and the starting point of 2½ years even if correctly categorised was too high.
The Judge said:
[11] The leading authority for sentencing in this area is now the decision of the Court of Appeal in R v Terewi (supra) which both counsel notes. That divides Cannabis cultivation into three categories. The first is the growing of a small number of Cannabis plants for personal use, without any sale to another party occurring or being intended. This is a category that is almost invariably dealt with by fine or a non-custodial sentence. Non-commercial supply to others would lead to a greater monetary penalty, and in cases of persistent offending periodic detention, or a short term of imprisonment. Category 2 encompasses small scale cultivation of Cannabis plants for a commercial purpose, ie, the object of deriving a profit. The starting point for sentencing there is generally between two and four years. Where sales were infrequent and of a limited extent a lower starting point might be justified. Category three was for the most serious class of offending, involving revenue of over $100,000.00.
[12] Your counsel’s submission is that this is clearly in category one. I cannot accept that. While this was not the most sophisticated Cannabis cultivation that has come before the Courts, steps had been taken to protect the plots; they were well cared for and tended; and they had been fertilised. Male plants had been thinned out for the obvious purpose of improving the quality of the female plants. While I accept that there was nothing found to indicate supply, of equal concern is the fact that nothing was found to indicate that you are a user, or a heavy user of Cannabis, as you now maintain. Your refusal to co-operate with the police leads me to draw an inference that others were involved in this activity. It is also pertinent to note that you took some considerable steps to avoid apprehension by wearing camouflage jacket and covering your face. In my view, given the number of plants, and the fact that they were thinned down to female plants, this Court is entitled to place this in category 2 of R v Terewi (supra) and that fact distinguishes the case which you so heavily rely on from a newspaper report.
The Judge considered that the case was less serious than two recent High Court decisions in the region, then fixed on a sentence of 18 months. He declined to suspend the sentence. He thought there was nothing exceptional in the appellant’s circumstances, and in many respects his personal circumstances were less disadvantageous than others. The Judge granted him leave to apply for home detention.
Counsel takes issues with the Judge’s assessment of the facts saying that whilst supporting the extent to which the plants were cultivated and the degree of commitment made by the grower to his crop, did not necessarily detract from the fact that they could be for his own use. Alternatively it is submitted that if the appellant’s case does come within category 2, that a starting point of two and a half years was excessive. In that respect reliance was made on a sentence of R v McPherson Unreported CA 34/00, 10 April 2000, where Thomas J delivering the decision of the Court of Appeal said:
This Court has recently devoted considerable attention to the question of appropriate sentences for cannabis possession for supply and cultivation charges. See R v Terewi [1999] 3 NZLR 62; R v Harris, 27 September 1999, CA 283/99; R v Fenton, 11 October 1999, CA 247/99; R v Daley, 9 December 1999, CA 336/99; and R v Andrews and Devitt, 29 March 2000, CA 505/99, CA 506/99. Mr Dollimore rightly conceded that, on any view of the precise future value of the crop, this case fell within category two of Terewi, that is, small-scale cultivation for a commercial use. The starting point for offences in this category is “generally between two and four years but where the sales are infrequent and of very limited extent a lower starting point may be justified” (Terewi, at 65). Other sentencing principles are clear: the principal sentencing aim for such offences is deterrence of others (Terewi, at 66; Harris, at para 17); the personal circumstances of the offender carry little weight (Terewi, at 66); and a suspended sentence is only justified in truly exceptional circumstances (Andrews and Devitt, at para 8).
The probation officer’s report noted the appellant as an intelligent, healthy and fit man with a multitude of sporting interests as well as being a builder by occupation which the Judge thought gave the lie to suggestions of heavy drug dependency such as would make this a crop for his own consumption. As well we note the reference in the same report to other people being involved in the cultivation which might suggest a degree of commercialisation.
We consider also that the number of personal references available in this case which disclose no awareness of personal drug taking of this kind, casts considerable doubt on his assertion that this was not a commercial undertaking but one to meet his own needs.
In the end, on this issue, it was a matter of drawing inferences from the circumstances and the likelihood of this number of plants, with their ultimate street value, being consistent with growing for his own personal use. We note that as few as 28 plants have been held, nonetheless, to lead to a finding of category 2, R v Fenton CA 247/99, 11 October 1999. We think the Judge was right to have regard to the relevant factors in combination in making the assessment and in that regard we are not persuaded he was wrong.
The starting point of 2½ years is plainly within the range mentioned in category 2 of R v Terewi but Mr O’Driscoll said that where sales are infrequent and of a very limited extent, a lower starting point was invited in Terewi. Mr O’Driscoll invited a comparison between R v McPherson and the present case based on the number of plants (193 plants) found growing. To do ignores the apparent sophistication of the cultivation in this case and the ultimate value of the crop albeit less than that in R v McPherson. Starting point assessments are not capable of exact arithmetical gradation or scaling and when coupled with a significant discount of one year for mitigating factors, which included personal circumstances generally disregarded in this type of case, we are not prepared to say the resulting sentence is manifestly excessive or inappropriate.
The Judge’s reference to the absence of fuller co-operation, and an acceptance of the reality of this offending as a category 2 matter, leading to a lesser discount, was criticised by Mr O’Driscoll. The Judge may have been referring to co-operation which would have resulted in the disclosure of the identity of others but in the end we consider the discount was appropriate in the circumstances without more.
It follows that the appeal against sentence is dismissed.

Solicitors:

Crown Law Office, Wellington for Crown
O’Driscoll & Marks, Dunedin for Appellant

[2001] NZCA 245

27 August 2001