Wilson v The Queen

[2004] NZCA 306

IN THE COURT OF APPEAL OF NEW ZEALAND

CA273/04

THE QUEEN

v

NEIL BARRY WILSON

Hearing:24 November 2004

Court:Chambers, Baragwanath, and Goddard JJ

Counsel:R J Bowden for Appellant

J A Farish for Crown

Judgment:13 December 2004 

JUDGMENT OF THE COURT

A        The appeal against sentence is allowed.

B        The sentence of five years’ imprisonment is quashed and a sentence of four years’ imprisonment  is passed in substitution therefor.

REASONS

(Given by Chambers J)

Cannabis cultivation in North Auckland

[1]       On 2 November last year, police received information regarding a large number of cannabis seedlings in a forestry block north of Dargaville.  Police visited the site and found 1,200 cannabis seedlings.  Over the next two months, police carried out surveillance.  Police officers saw James Anderson and Neil Wilson regularly tending the plants. 

[2]       On 26 February this year, the police terminated the operation by apprehending Messrs Anderson and Wilson as they came out of the cannabis plots.  Both men were subsequently charged with cultivating cannabis.  Both pleaded guilty.  Nicholson J sentenced both of them on 10 June.  Each was sentenced to five years’ imprisonment. 

[3]       Mr Anderson has not appealed.  But Mr Wilson has.  He says that the sentence was clearly excessive. 

Issue on the appeal

[4]       There is one issue on this appeal: was the sentence clearly excessive?

Clearly excessive?

[5]       The sentencing proceeded on an agreed statement of facts, save in one respect.  That was as to the value of the crop.  In accordance with this court’s directive in R v Terewi [1999] 3 NZLR 62 at [6], the police gave an estimate (on oath) that “the least value for this growing operation would be $1.3 million and the most would be $3.66 million”. Messrs Anderson and Wilson disputed that valuation evidence.

[6]       In accordance with s 24 of the Sentencing Act 2002, Nicholson J conducted a factual enquiry as to the value of the crop.  That enquiry took three days.  In the circumstances, such a lengthy enquiry appears to have been justified.  But we would remind sentencing judges of subs (2)(a):

the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:

[7]       That is an important provision because some facts, while disputed, may have little bearing on the likely sentence.  The defence needs to know what significance is likely to be attached to the disputed fact so that a sensible decision can be made as to whether the expense of a disputed fact hearing is warranted.  Our perusal of the High Court file does not disclose what indication was given as to the likely consequence of the disputed fact.  It may be that the indication was given orally.  It is preferable for the sentencing judge to make a record of the dispute and of his or her indication to the parties under s 24(2)(a). 

[8]       Following the s 24 hearing, Nicholson J delivered a sentencing facts judgment.  He found proved beyond reasonable doubt that the police had located 1,200 cannabis seedlings when they visited the site in November last year.  He further found that the police recovered, following their scene examination on 26 February this year, 520 mature cannabis plants ranging between 8 feet and 12 feet in height.  The plants were high quality female cannabis plants that were in the early stages of producing high quality cannabis head material.  The judge found that those plants would have been likely to yield between 300 and 400 pounds of seedless cannabis head on maturity and that this could have sold for between $900,000 and $1,200,000.  The judge was satisfied beyond reasonable doubt that Messrs Anderson and Wilson had cultivated the cannabis for the commercial purpose of sale and supply. 

[9]       Those factual findings are not disputed on this appeal. 

[10]     Nicholson J approached the sentencing task in the following way.  First, he categorised this case in terms of Terewi as category 3.  He noted that in these cases the starting point would generally be four years or more.  Nicholson J considered this a bad category 3 case, warranting a five year starting point.

[11]     In Mr Wilson’s case, the judge then added one year to the starting point because of the fact that Mr Wilson had two previous convictions for cultivating cannabis.  His Honour then considered mitigating circumstances.  He allowed six months’ discount for the guilty plea.  He said that he would not give more than that because of the pair’s “non-acceptance of responsibility for growing with a commercial purpose”.  His Honour then allowed a further six months for Mr Wilson’s personal circumstances.  The judge accepted that, apart from Mr Wilson’s cannabis offending, he was “a person of excellent character, a hard worker and a good family man”.  He also formed the view that Mr Wilson had on remand been pursuing programmes which made it less likely that he would offend again on release. 

[12]     By these means, the judge arrived at a sentence of five years’ imprisonment. 

[13]     Mr Bowden, for Mr Wilson, in his written submissions challenged the starting point, the uplift based on prior convictions, and the miserliness of the discount for the guilty plea and extenuating personal circumstances.  His formula was: 4.5 – 1.5 (guilty plea) – 1 (personal circumstances) = 2. 

[14]     His oral submissions were, however, more realistic.  He still advocated a starting point of 4.5 years.  He accepted that a six months’ uplift would be justified on account of relevant prior offending.  He accepted that the total discount for mitigating circumstances should be 1.5 years.  That resulted in an overall sentence of three and a half years. 

[15]     It will be apparent that Mr Bowden did not attack the logic of Nicholson J’s approach; rather the attack was on the quantum of the components and the end result, when compared with other sentences on comparable offending.  We too accept that the judge’s approach to sentencing was correct. 

[16]     We are not persuaded that the judge’s starting point of five years was too high.  A starting point of five years was adopted in R v Pure CA359/00 20 February 2001 at [12].  That case is not dissimilar.  In the present case there were many more plants under cultivation, although we have not overlooked the fact that the profits would presumably have been shared.  On the other hand, what was missing here compared with Pure was any evidence of prior dealings.  Mr Wilson, unlike Mr Pure, never got to the stage of actually making money from his illegal activity.  Overall, we think those factors roughly balance out, which makes the five year starting point appropriate. 

[17]     We accept, as ultimately Mr Bowden did, that previous drug offending can be an aggravating feature justifying an uplift on the starting point: Terewi at [12]. We agree with Mr Bowden that the judge’s uplift on account of the two prior cultivation convictions was excessive. The two previous convictions were both in the 1980s. We do not have details of them, but neither can have been significant cultivation. The first attracted a fine of only $190. The second was dealt with by way of a non‑custodial sentence. Mr Wilson’s criminal record was not extensive. His last conviction had been in 1991. While some uplift was justified on the grounds that this was a third conviction, we agree with Mr Bowden that a six months’ uplift was more appropriate.

[18]     Nicholson J allowed a one year discount for mitigating circumstances.  Mr Bowden in the end advocated a one and a half year discount.  In particular, Mr Bowden challenged the judge’s reasoning with respect to the six month allowance he gave for the guilty plea.  This represented a discount of only 8% on the uplifted starting point.  Mr Bowden challenged the judge’s reasoning that the discount should be tempered by Mr Wilson’s “non-acceptance of responsibility for growing with a commercial purpose”. 

[19]     We agree with Mr Bowden that the judge’s approach on this issue was flawed.  The charge was cultivation.  Mr Wilson admitted cultivation.  It is true that Mr Wilson disputed the extent of the cultivation and the police’s estimate as to the value of the crop.  His challenge to the police assertion of value was successful: Nicholson J’s findings on the sentencing fact dispute were significantly different from original police assertions as to the value of the crop.  Mr Wilson was in that sense justified in his challenge.  He should not be deprived of the benefit of the credit which would normally be given for an early guilty plea in those circumstances.

[20]     Mr Bowden submitted that a one and a half year discount for mitigating circumstances was justified.  From our uplifted starting point of five and a half years, a one and a half year discount is approximately a 27% discount.  We think that is justified, given the guilty plea and the other extenuating circumstances which the judge found. 

[21]     By these means, we reach a final result of four years’ imprisonment.  We have compared that final result with the penalties imposed in Pure, R v Wharehinga CA438/02 30 May 2003 and R v Mark and Jones CA470/03 and CA483/03 29 June 2004.  We consider that five years’ imprisonment is excessive when set against those authorities.  Four years’ imprisonment is more consistent. 

[22]     Accordingly, we allow the appeal. 

Solicitors:
Crown Law Office, Wellington