The Queen v Thomas John Edmonds

IN THE COURT OF APPEAL OF NEW ZEALAND

CA23/02

THE QUEEN

THOMAS JOHN EDMONDS

Hearing:	27 May 2002
Coram:	Elias CJ Gault P John Hansen J
Appearances:	R J Bowden for Appellant A E Kiernan for Crown
Judgment:	28 May 2002

JUDGMENT OF THE COURT DELIVERED BY GAULT J

The appellant was convicted after pleading guilty in the District Court at Whangarei to one charge of cannabis cultivation contrary to s9(1) Misuse of Drugs Act 1975. After a sentencing hearing on 27 November 2001 he was sentenced to two years six months imprisonment. He now appeals against his sentence.
On 10 August 2001, as the result of information received, the police executed a search warrant at the appellant’s Whangarei property. Inside the house they found 65 cannabis plants, eight mother plants, and 42 cannabis seedlings. The plants were in black plastic poly-planting bags and were growing indoors under controlled lighting. Also located were boxes of fertiliser, extractor fans, a container of ozone generator for plant growth and other items relating to cultivation. The appellant told the police that he had grown the plants from cuttings taken from the mother plants about two months prior to the execution of the search warrant. He also told the police that he had changed the artificial light cycle in order to stimulate the growth of cannabis head. By way of explanation he stated that he was growing the cannabis for personal use and that this was his first attempt to do so. He said that he expected to get one or two ounces of head per plant. Notably, the police did not find any dried cannabis on the property, although they did find some used caps of cannabis oil.
The principal submission in support of the appeal was that the appellant’s case should not have been classified as a category two case for the purpose of the sentencing tariff outlined in R v Terewi [1999] 2 NZLR 62. As a secondary matter counsel submitted that even if correctly categorised, the starting point taken was too high or that the Judge failed to give an appropriate discount for the early guilty plea, the appellant’s remorse and his good record.
At the sentencing hearing on 17 November 2001 evidence was directed to the nature of the cannabis growing operation conducted by the appellant with a view to determining whether it fell within category one or category two as set out in R v Terewi. The appellant’s evidence was that the operation was a one-off and that the cannabis was for his personal use only. Rejecting that evidence, the Judge said:
There comes a stage when there is much more growing than is necessary for the reasonable needs of the individual. Thus we get a situation where an individual found growing large quantities of cannabis claims a large habit of very heavy cannabis consumption. The defendant claims up to an ounce per week, this from a man who is unemployed except for seasonal employment, who says that he found $300.00 per ounce too much. An unemployed man has not the means to pay $300.00 per week.
The other matter which I believe to be of some significance is that no cannabis leaf itself was found, only the plants which he was growing. It is somewhat surprising that a man who claims such heavy usage has no personal supply of cannabis to smoke. He was asked about this by the Police. He gave no adequate reason.
….
The conclusion, which I reach, is that the evidence all points one way. That is the defendant was growing far more cannabis than he could possibly consume himself and was sufficiently well aware to know that there was money to be made on the basis of his previous purchases at $300.00 an ounce for any surplus which he created by his efforts. He certainly was setting out to create a surplus and a substantial surplus and I believe a continuing surplus.
Accordingly, the Judge categorised the offending as being at the lower end of category two, attracting a sentence of between two and four years imprisonment. He then referred to the prevalence of drug offending in the Northland region and the need to impose a deterrent sentence. While not specifying an exact starting point, the Judge considered that an appropriate sentence after making a deduction for the plea of guilty was one of two years six months imprisonment.
For the appellant, Mr Bowden took issue with the Judge’s assessment of the evidence, particularly the inference drawn by the Judge regarding the lack of dried cannabis in the appellant’s home. He submitted essentially that the commercial aspect of the operation was not entirely established. In that respect reliance was placed on R v Fenton (CA247/99, judgment 11 October 1999). Alternatively, he submitted that if the appellant’s case came within category two, the final sentence is too high. He suggested a starting point of less than two years and, taking into account a substantial allowance for personal use and an appropriate allowance for the guilty plea, the sentence should be of 12 months imprisonment or less.
Mrs Kiernan, for the Crown, submitted that the Judge’s assessment was the correct one and that the appropriate inferences should be drawn from the extent of the crop, the varying stages of cultivation of the plants and the nature of the operation, which was capable of generating several crops per year. She supported the final sentence by reference to the discretionary nature of the sentencing task and the importance of deterrence as a sentencing principle in drug offending.
Category two of R v Terewi encompasses small-scale cultivation for commercial purposes. R v Fenton, must be read with R v Andrews and Devitt [2000]2 NZLR 205. Where there is a commercial element, even though the cultivation is also for personal use, category two applies. We agree with the Judge’s assessment of some commercial purpose, which was a matter of inference from the circumstances and the unlikelihood that the number of plants was consistent with growing solely for personal use.
But the categories are for guidance in assessing comparative culpability, they do not fix it. For offending falling within category two the judgment in Terewi states that the range available to a sentencing judge is generally between two and four years before adjustment for special factors. But there is the additional direction that if the commercial element is small a lower starting point might be justified. The decision does not state that for all cannabis offending having a commercial element, however small, the sentence must be no less than imprisonment for two years.
In the present case, the sentencing Judge, although finding that the offending was towards the low end of Terewi category two, must have fixed the starting point at three years or more to reach his sentence of two and a half years after allowing credit for the plea of guilty. He appears to have justified that by reference to the need for deterrence having regard to the number of similar offences occurring in the area. There are limits, however, to the extent to which regional variations in sentences for the same level of criminality can be introduced. Further, deterrence already is incorporated into the levels of sentences for drug offending. What the Judge did not do is make an assessment of the likely level of commercial activity the appellant contemplated in growing cannabis surplus to his personal requirements.
From the photographs produced it is apparent that, even though an indoor operation, this cultivation could only be described as basic and relatively unsophisticated. Even if a substantial part of the likely production were intended to be packaged and offered for sale (and there was no evidence that this was in preparation), the commercial value would be modest. Speculation on methods of sale and likely prices is not particularly helpful, but on the only available estimate of the expected yield, all sold in one ounce lots, the gross return would have been between $8,000 and $16,000. And there would be deducted the value of that retained for personal use. This might have developed into a more serious on-going cultivation, but on the evidence available it could not be regarded as having reached that level.
In the absence of proof of any more substantial commercial purpose we consider that a starting point above two years is unjustified. There is then to be an allowance for the appellant’s plea of guilty, offset because of two previous offences for cannabis possession, but only to a small extent because they were more than ten years old.
For the reasons given, we are satisfied that the sentence imposed is excessive. We are, however, satisfied also that the finding of a commercial purpose in respect of surplus calls for a sentence of imprisonment by way of deterrence. Accordingly the appeal is allowed. The sentence of two and a half years is quashed and there is substituted a sentence of imprisonment for 18 months. That sentence will not be suspended.
We have given consideration to the matter of leave to apply for home detention. That is not appropriate since the appellant’s home was used to commit the offence. Further, his admitted heavy drug use must count against him in this respect. Leave to apply is refused.

Solicitors
Crown Solicitor, Auckland

[2002] NZCA 116

28 May 2002