Wilson v The Queen

[2017] NZCA 342

IN THE COURT OF APPEAL OF NEW ZEALAND

CA35/2017
[2017] NZCA 342

BETWEEN	NICHOLAS JAMES WILSON Appellant
AND	THE QUEEN Respondent

Hearing:	1 August 2017
Court:	Clifford, Simon France and Toogood JJ
Counsel:	AJD Bamford for Appellant M H Cooke for Respondent
Judgment:	10 August 2017 at 12 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.

BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

1. Mr Wilson appeals a sentence of four years and nine months’ imprisonment imposed by Judge Ruth in the District Count at Nelson for various drug dealing offences.[1]  The appeal has been filed a short period late.  No objection is taken.  We grant an extension of time to appeal accordingly.

Facts

[1]R v Wilson [2016] NZDC 23800 at [38].

1. Mr Wilson was renting a house for the sole purpose of using it to grow cannabis.  The tenancy was for seven months, although the offending was discovered after only two and a half months.  By Mr Wilson’s own admission, it was a big operation involving, at the time of search, 468 plants.  Four rooms were being used, all equipped with the necessary lighting and paraphernalia.  A quantity of good quality dried cannabis head material was also located — 228 grams.  Mr Wilson readily admitted responsibility.  He disputed estimates of the likely monetary value of the cannabis.  Sentencing proceeded on the basis of a reduced potential yield and a likely monetary value of $100,000.[2]  Mr Wilson pleaded guilty to cultivation, possession of equipment and possession of cannabis for supply.

   [2]At [8].

2. At the same time, 300 LSD tabs were found hidden in a wardrobe.  Mr Wilson said they were for his own use, and that he had obtained them in exchange for cannabis.  This explanation was not accepted, and the matter proceeded to trial where a jury found Mr Wilson guilty of possession of LSD for supply.

Sentencing

1. Judge Ruth took the LSD offending as the lead sentence and identified a sentence of four years’ imprisonment.[3]  How that was structured is not detailed.  However, it probably reflects a starting point of four years and three months’ with a three month deduction for trial co‑operation.  This aspect refers to acknowledgements by Mr Wilson concerning possession, enabling the trial to focus on the purpose of such possession.

   [3]At [37].

2. Having identified a sentence of four years’ imprisonment for the LSD, the Judge then turned to the cannabis offending.  The starting point for the uplift was 20 months (the Judge having previously noted that standing alone the starting points for the two drugs would be comparable).[4]  There were then discounts for guilty plea (two months)[5] and for personal circumstances and good standing in the community (six months).[6]  The three month discount for trial co‑operation was also applied here, so the uplift of 20 months was reduced by a total of 11 months down to nine months.[7]  This nine months was added to the LSD sentence, leaving the final outcome of four years and nine months’ imprisonment.

Submissions

[4]At [15] and [37].

[5]At [37].

[6]At [38].

[7]At [38].

1. The primary focus is on the LSD sentence, where it is submitted insufficient account was taken of the fact that most of the LSD was for personal use, and of allegedly poor quality.  Reference is made to R v Stanaway, where this Court acknowledged LSD to be less pernicious than most Class A drugs, and stated that sentencing must take account of the quantity of the drug involved, its purity and street value, and how the offender came to possess it.[8]

   [8]R v Stanaway [1997] 3 NZLR 129 (CA) at 133.

2. If the LSD sentence were reduced, it is submitted the uplift for the cannabis offending should also be reduced on the basis of totality.

Analysis

1. Neither matter relied on by Mr Wilson calls into question the starting point of around four years’ imprisonment.  There was evidence about the appearance of the LSD tabs which supported the idea that it was of lesser quality.  Indeed, Mr Wilson’s evidence in support of it all being for personal use was that it was not of saleable quality.  However, the jury’s verdict necessarily represents a rejection of that testimony.  Further, the arguably lesser quality of the drug does not undermine the primary culpability component — namely, that it was a sizeable quantity of a Class A drug possessed for the purpose of supply.  We also note that a four year starting point was unremarkable, and probably towards the bottom of the range for similar LSD offending.[9]

   [9]R v Faulkner HC Auckland CRI‑2006‑004‑25880, 15 April 2008 — 300 tabs, five year starting point; R v Love HC Palmerston North CRI‑2006‑054‑5597, 4 September 2009 — 201 tabs, three years and six months’ starting point; and R v Cornelius HC Whangarei CRI‑2010‑027‑143, 7 November 2011 — 336 tabs, five year starting point. 

2. A conclusion of commercial purpose was inevitable.  Once the allegedly poor quality of the drug is put to one side, the indicia all point towards possession for the purpose of supply.  Three hundred tabs is a large quantity — indeed, the statutory presumption for supply is 25 tabs.[10]  The drug was stored in the same place as Mr Wilson’s cannabis for supply.  There was a ready market for the drug looming, namely a music festival.  Mr Wilson candidly admitted a willingness to supply cannabis, and there is no reason to think the sentiment did not carry over to such a dealable quantity of another drug.

   [10]Misuse of Drugs Act 1975, sch 5.

3. We place little relevance on the fact that he is a heavy user.  It does not mean that the particular supply which was the subject of the charge would not all be sold.  By Mr Wilson’s own evidence, further supplies were readily available.  There was no reason he would need to hoard these 300 tabs.

Result

1. The application for an extension of time to appeal is granted.

2. The appeal against sentence is dismissed.

Solicitors:
Bamford Law, Nelson for Appellant
Crown Law Office, Wellington for Respondent