Wark v Police
[2015] NZHC 3198
•14 December 2015
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2015-412-000038 [2015] NZHC 3198
BETWEEN NICHOLAS BRIAN WARK
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 14 December 2015 Appearances:
A Dawson for Appellant
L C Preston for RespondentJudgment:
14 December 2015
ORAL JUDGMENT OF GENDALL J
[1] The appellant Nicholas Brian Wark pleaded guilty to one charge of cultivation of cannabis.1 This is punishable by a term of imprisonment not exceeding seven years.2 On 23 September 2015 Judge Strettell in the District Court sentenced Mr Wark to two years and three months’ imprisonment.3 Mr Wark now appeals this sentence on the following grounds:
(a) the adopted starting point was too high;
(b) insufficient credit was given for mitigating factors; and
(c) the sentence imposed was manifestly excessive.
1 Misuse of Drugs Act 1975, s 9(1).
2 Misuse of Drugs Act 1975, s 9(2).
3 R v Wark [2015] NZDC 19184.
WARK v NEW ZEALAND POLICE [2015] NZHC 3198 [14 December 2015]
Background
Background of the offending
[2] Turning first to the background of the offending, on 4 August 2015 a drug search was carried out at 113 Canongate, Dunedin. Approximately six months prior Mr Wark had been given access to the property by the owner for the purpose of completing building work and home improvements. During this time he constructed secret cannabis growing rooms, hidden behind newly erected false walls. Access to these rooms could be gained through the lower basement via a hidden hatch. At the time of the raid on the property the address was unoccupied and the appellant Mr Wark was using the address solely as a hiding place for his cannabis operation.
[3] The first of the growing rooms was a nursery containing one growing light and four cannabis seedlings. Behind a further false wall was a main growing room with 30 mature cannabis plants, all healthy and well maintained.
[4] When approached with regard to what was found, Mr Wark explained that he had been growing 30 cannabis plants for the last ten weeks and they were approximately two weeks from harvest. He expected to yield two to three ounces of quality cannabis from each of the plants. That is 60 to 90 ounces with a commercial value of between $18,000 and $36,000.
The District Court sentencing
[5] Turning now to the sentencing in the District Court Judge Strettell noted that an issue at sentencing was the comment made by Mr Wark in his probation report indicating that the cannabis was not for sale. However, the Judge found that the simple quantity of plants alongside the sophistication of the operation indicated that it was at least a small commercial crop. This was discussed by counsel at the time of sentencing and it was accepted that this was an inference that could be made in part, and also that there was a self interest, it seems, in the operation.
[6] Mr Wark wrote to the Court demonstrating remorse that he had let down his partner and family having previously given commitments to no longer cultivate. The
Judge in the District Court pointed out some personal circumstances in respect of his child and family, but noted that these have a relatively limited impact upon sentencing for drug offending.
[7] Judge Strettell continued his sentencing with the following comments in paras [9], [10] and [11]:
[9] The aggravating factors that one might glean from the offence itself is the quantity of cannabis cultivated, the value of the cannabis and the degree of sophistication in respect to the operation, including the efforts made to secrete the operation and clearly a great deal of effort has been put in to ensuring a successful cultivation. In my view, a starting point, having regard to that, is in the vicinity of two years six months.
[10] Personal aggravating features are the defendant’s criminal history but particularly his previous cultivation charges and clearly the two charges of cultivation in 2012 were moderately serious given that he was sentenced to prison for that. One would have thought that if there was not a commercial inference to be drawn from that conviction, that it may well have been that he would have received possibly an electronic sentence of home detention or community detention. The fact that he did not suggests the potential of it either not being available or that there was a clear commercial element in that offending. But in any case, the cultivation itself being repeat offending of a significant nature is an aggravating feature. I agree with counsel for the prosecution that that leads to an uplift of six months and, therefore, a period of three years less any discount that one might give.
[11] I am prepared to grant appropriate discount for his co-operation and efforts and taking into account to the extent I can, their personal circumstances touched on by him and in the letters by reducing it by nine months and impose a term of two years three months’ imprisonment.
[8] Mr Wark was sentenced accordingly.
Submissions
Submissions for the appellant
[9] Turning now to the appellant’s submissions, on the starting point, counsel notes that three categories of cultivation offending are identified in the decision in R
v Terewi.4
4 R v Terewi [1999] 3 NZLR 62 (CA).
[10] As to commerciality, counsel seemed to accept that no cannabis had yet been harvested and there was no evidence of any other aspect of commerciality one might expect to see. A reason for the cannabis grow is explained by what was said to be Mr Wark’s wish to self-medicate for serious health problems. Counsel says he has also been instructed that the other person involved with the property had full knowledge that the operation was taking place at the address and had an interest in the outcome.
[11] Given all of these factors, counsel submits that the case falls at the bottom end of category two cases in Terewi and so a lower starting point of two years and three months should have been adopted.
[12] Counsel for Mr Wark also submits that the only credit given was the 25 per cent discount for the early guilty plea, whereas proper recognition should have been given for the appellant’s personal mitigating features including the purpose of self- medicating for Hepatitis C. It is further contended that greater regard should have been had to the impact that Mr Wark’s incarceration was having on his children and also that the probation report concluded that he was “not without insight” as to the offending.
[13] Overall, it is suggested that a further three or four months discount would have been an appropriate discount for these personal features.
[14] Counsel for the appellant submits that a sentence in the region of 21 to 22 months’ imprisonment would have been more appropriate than the 27 months which was imposed.
Submissions for the respondent
[15] Turning now to the submissions for the respondent, on the ground advanced that the starting point was excessive, Ms Preston for the respondent considered that the offending falls also within category two of Terewi which would generally attract a starting point of between two and four years. The starting point of two years six months, she contends, was therefore appropriate.
[16] On mitigating features, it was submitted that Judge Strettell afforded adequate credit for mitigating features personal to the appellant here in addition to his plea.
[17] And, finally, overall, Ms Preston contended the sentence was within range and appropriate.
Jurisdiction
[18] Turning now to jurisdiction matters, Mr Wark may appeal the imposed sentence as of right.5 As the first appeal Court,6 this Court must only allow the appeal if satisfied that:7
(a) First, for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[19] In the relatively recent judgment of Tutakangahau v R, the Court of Appeal confirmed that the Criminal Procedure Act 2011 sentence appeal regime was not intended to signify a departure from the position under the previous Crimes Act
1961, s 385(3), and the Summary Proceedings Act 1957, s 121(3), regimes.8
Discussion
[20] It is well established that a sentence appeal is a two stage process. First, there must have been an error in the sentence imposed on conviction, and if there was, then, secondly, it must also be found that a different sentence should have been imposed. The errors asserted in this case are that the adopted starting point was too high, insufficient credit was given for mitigating features, and, due to these factors, a
manifestly excessive sentence was imposed. I will deal with each of these in turn.
5 Criminal Procedure Act 2011, s 244.
6 Section 247.
7 Section 250.
8 Tutakangahau v R [2014] NZCA 297, [2014] 3 NZLR 482.
The adopted starting point
[21] In setting a starting point, the basic approach is to identify and evaluate aggravating and mitigating features of the offending, where there is a tariff judgment, to place the offending within the appropriate “band”, and to adopt an appropriate starting point by reference to comparable cases.
[22] R v Terewi as the tariff case for drug offending9 identifies three broad categories of cannabis cultivation offending. Both counsel for the appellant and the respondent accept that the offending in this case is properly categorised as category two offending. This type of offending:10
…encompasses small-scale cultivation of cannabis plants for a commercial purpose, i.e. 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.
It is the degree within that category on which counsel differ before me.
[23] In determining the appropriate category, the Court of Appeal provides further guidance at paras [6] and [11]:
[6] It will be helpful to sentencing Judges if prosecutors bring evidence of the likely amounts of annual gross revenues, or turnover, obtained by the offender from a cannabis growing operation or which the offender must have anticipated deriving from the activity. That will reflect crop cycles and yields and will be a better measure of the size of an operation than simple reference to the number of plants which have been found. The sentence should also take into account the period over which the offending has continued.
…
[11] We consider that, in 1999 values, annual revenues of more than
$100,000 (in cash or kind) will place a cultivation operation clearly within category 3 but the differences in penalty may not be great where cases are close to the borderline. The division between the categories is merely a means to give a guide to penalty in relation to a particular position on the scale of offending.
[24] It was accepted that in this case the initial cannabis grow would have produced a yield of 60 to 90 ounces of cannabis with a monetary value of between
9 R v Terewi, above n 4.
10 At [4].
$18,000 and $36,000. This clearly places the offending within category two. As Judge Strettell noted, he considered it quite implausible to suggest that there was no commercial element to the grow. I share his sentiment on this point. Although the offending therefore falls at the lower end of category two, this was a concerted, deliberate and elaborate exercise to construct and operate a secret cannabis grow facility in an unoccupied house rented solely for that purpose.
[25] Turning to other authorities here, in Dyer v Police the police located a hidden grow in which 43 cannabis plants and 16 cannabis seedlings were located.11 The police maintained that the grow could have netted between $45,150 and $135,450 per year. However, there was no evidence of actual sales. Andrews J on appeal considered that an appropriate starting point was in the region of two years and three months’ imprisonment.12
[26] In R v Shand, the cultivation occurred inside a grow room found in a spare bedroom.13 One hundred and five cannabis plants were located and it was admitted that there was at least some level of commerciality. The commercial value of the crop was somewhere in the region of $45,000. A starting point of two years and six months’ imprisonment was adopted by Allan J.
[27] The offending in the present case is at the lower end of the category two band, however, in my view there are aggravating elements. Although it was not a sophisticated commercial enterprise, the set up itself has elements of sophistication with the secret rooms. The plants were all healthy and well maintained. There was also a nursery suggesting a growing cycle was being established.
[28] However, I do find myself, to a limited extent, agreeing with counsel for the appellant on this aspect relating to the starting point. It appears to me that a starting point of two years and four months would have been more appropriate in the
circumstances here. This, however, is not the end of the exercise.
11 Dyer v Police [2014] NZHC 2961.
12 At [21].
13 R v Shand [2013] NZHC 3024.
Insufficient credit for mitigating features
[29] Turning now to the issue of insufficient credit being given for mitigating features, counsel for the appellant says the only credit applied in the District Court was for the guilty plea, the sentencing Judge allowing the full 25 per cent. It was submitted that the Judge did not properly account for other mitigating features.
[30] However, that is not my reading of the discount provided in the District Court here. Although the guilty pleas were entered at the early stage of the offending, this is not the only factor a sentencing Judge takes into account when applying a guilty plea discount.
[31] The Supreme Court in Hessell v R identified the further relevant factors to assessing the appropriate credit to be given for a guilty plea:14
[74] But, as we have emphasised, the credit that is given must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case. Consideration of all the relevant circumstances will identify the extent of the true mitigatory effect of the plea.
[32] In this case, despite the fact that an early plea was entered, this was in the face of an overwhelming prosecution case as I see it. I would therefore consider that Mr Wark was not entitled to the full 25 per cent discount, and I infer from Judge Strettell’s approach that he did not either.
[33] For the record, if I were to approach the discounts independently, I would apply a two month discount for the personal mitigating features. This would be discounted from the total of two years and 10 months after the uplift for aggravating features is added to the starting point. This takes the sentence to 32 months’ imprisonment. A discount of 20 percent for the guilty plea, which I consider appropriate in this case, would take the end sentence to around two years and two
months’ imprisonment.
14 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
Imposition of a different sentence
[34] Even though I have identified what at best might be regarded as a possible error in the sentencing of Judge Strettell in the District Court, I do not consider that a different sentence should be imposed here. The Judge imposed a final sentence of two years and three months in the District Court. The best position advanced for Mr Wark here might arrive at an end sentence of about two years and two months. From this I can only conclude that the sentence arrived at by Judge Strettell was within the range allowed having regard to the sentencing Judge’s discretion. This is a discretion to which the High Court should pay due deference and I consider a possible maximum reduction of one month in the circumstances prevailing in this appeal would only be tinkering.
Outcome
[35] For all these reasons this appeal is dismissed.
...................................................
Gendall J
Solicitors:
Public Defence Service, Dunedin
RPB Law, Dunedin
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