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R v Gurnick [1999] NZCA 19; (1999) 16 CRNZ 513 (4 March 1999)

Last Updated: 5 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND CA 320/98

THE QUEEN

v

BRUCE ROYAL GURNICK

Coram: Eichelbaum CJ Robertson J Elias J

Hearing: 3 March 1999 (at Auckland) Counsel: S R Clark for Appellant

A R Burns for the Crown

_{Judgment: 4 March 1999}

_{JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J}

The appellant was charged that :

1. On and before 16 January 1998 at Ngatea he cultivated a prohibited plant namely a plant of the genus cannabis; and

2. On 16 January 1998 at Ngatea had in his possession the class C controlled drug cannabis.

Shortly before he was due to face trial a District Court Judge heard a pre-trial application in respect of admissibility of certain evidence. It was contended that a search conducted at the appellant’s residence at 92 Hopai East Road, Ngatea, was illegal and that the evidence obtained pursuant to that search should not be admitted. The learned Judge on the morning of trial indicated that the challenge to admissibility was unsuccessful and that reasons would be given in due course. They were delivered four days later.

Meantime as a consequence of that ruling Mr Gurnick pleaded guilty to the first count. He maintained his plea of not guilty to the second count. After a brief trial he was convicted. The following week he was sentenced to 3 years imprisonment on the supply trial and one year’s imprisonment on the cultivation charge, the terms to be served concurrently.

He now appeals against the conviction on the basis that the pre-trial ruling was in error and that the guilty plea was a direct consequence thereof.

As a back-stop he argues that the total sentence imposed was in the circumstances manifestly excessive.

In January 1998 the police obtained a warrant as a result of information received from an informant regarding the visibility of cannabis plants in the garden of a property to search premises at 92 Hopai East Road, Ngatea, said to be occupied by Phillip Roland Holdem.

Three police officers went to the premises at about 8.45 am on the morning of

16 January. Constables Lenihan and Laurie went to the front door. Constable Hinton went to the back door. Constable Hinton said he could smell burning cannabis coming from inside the house. He knocked on the door. No-one came and he entered the house through the open door. He accepted in evidence at the pre-trial hearing that he walked through the kitchen area and lounge. He did not see anyone nor did he find any incriminatory materials. He proceeded out and joined the other constables where they were speaking to the appellant and his de facto partner outside the front door.

Meantime the other two constables had been at the front door talking to the appellant. When Mr Gurnick was shown a copy of the search warrant and asked whether a person by the name of Holdem lived at the address, he indicated that Mr Holdem did not live there and pointed to another address further up Hopai Road where Mr Holdem lived.

Constable Hinton’s evidence was that when he came to the front door and learnt of the discussion about the validity of the search warrant, thereafter in response to his discovery of the smell of cannabis burning in the house he invoked his authority to search without warrant under s 18(2) of the Misuse of Drugs Act 1975. Before proceeding he gave the occupier the information required by s 18(4).

Constable Hinton returned into the house with Mr Gurnick’s de facto partner and found a small amount of cannabis material and a cannabis cigarette under a cushion on the couch. A substantial search was then carried out of the premises. Seven larger cannabis plants and five cannabis seedlings were located and other cannabis plant around the premises. In the garage area at the back of the house were 10 kilograms of cannabis leaf.

It was accepted in the evidence given by Constable Hinton at the pre-trial hearing that when he initially entered the house he believed that he did so by virtue of a valid search warrant. It is now argued for the appellant that when Constable Hinton first entered the premises endeavouring to trace the source of the burning cannabis he had commenced the search. Once he exited the premises and learned that there was a question mark about the validity of the search warrant, Mr Clark contended that any authority thereafter was spent as the police officers accepted that the search warrant was not executed due to concerns about its validity.

It is submitted that the position thereafter (when the search pursuant to s 18(2) of the Misuse of Drugs Act took place) can be categorised as follows :

(a) That Constable Hinton had entered the premises and commenced a search;

(b) that once the validity became an issue and the police elected not to execute the warrant they could not thereafter rely on the provision of s 18(2) of the Misuse of Drugs Act.

It was therefore submitted that the search conducted by Constable Hinton was illegal because the search warrant was never executed and that a search had been commenced under the misapprehension that Constable Hinton was searching pursuant to a warrant and not under s 18(2) of the Misuse of Drugs Act 1975.

It was further argued by the appellant that the search was both warrant-less and without statutory authority. The learned District Court Judge did not find it necessary to make an express finding as to the validity of the warrant.

As was noted by this Court in R v Bradley (1997) 15 CRNZ 363 :

... any member of the public, including a police officer, on legitimate business may come on to a property for the purpose of communicating with the occupier.

However Mr Clark submits that Constable Hinton was making an unannounced peaceful entry of occupied premises (which was an average sized house set in a rural area) there was a possibility that the police would expect to find occupiers at the address and that there was no basis for Constable Hinton to enter the house when there was no response.

In our judgment Constable Hinton going to the back door of the house could not be categorised as unlawful. While he was in there he could smell cannabis which it was not unreasonable for him to follow up.

For the appellant emphasis has been placed on various principles enunciated by this Court in R v Grayson & Taylor [1997] 1 NZLR 399 including :

A search is unreasonable if the circumstances giving rise to it make the search itself unreasonable or if a search which would otherwise be reasonable is carried out in an unreasonable manner. So too seizure. Whether a police search or seizure is unreasonable depends on both the subject matter and the particular time, place and circumstance. ...

Reasonable expectations of privacy are lower in public places than on private property. They are higher for the home than for the surrounding land, for farmland and for land not used for residential purposes. ...

Illegality is not the touchstone of unreasonableness. In terms of Section 21 what is unlawful is not necessarily unreasonable. The lawfulness or unlawfulness of a search will always be highly relevant but will not be determinative either way. ...

Section 198 reflects the law’s aversion to general warrants. It may not be used to authorise fishing expeditions. The sufficiency of the description of the offence, the place to be searched and the things to be the subject of the search is a matter of fact and degree. The basic right to privacy of the home requires the police, except in exceptional circumstances, to intimate their authority before they enter. While each case turns on its own facts, an unannounced peaceable entry of occupied premises or a forced entry of occupied premises without prior refusal is likely to render the search both unlawful and unreasonable.

Bearing these principles in mind it was submitted that the search was unreasonable because the initial entry and search was unannounced. It was not conducted pursuant to either a search warrant or under s 18(2). It involved a private residential home which was at the time occupied by the appellant and his family. The police arrival at the appellant’s address was purely by happen chance and they soon knew that Mr Holdem was at another address. It was stressed that the evidence suggested that

the cannabis plants could not conveniently or easily be seen by a person outside the property.

We are unable to conclude that the police officer walking through the open back door into the house and out the front door was in all the circumstances unreasonable.

But much more importantly we accept the submission of Mr Burns that the re- entry into the house was a separate and lawful search. There is no reason why there cannot be a concurrent exercise of powers under s 18(2) even although there could be a warrant available. The police were acting cautiously. Nevertheless there were reasonable grounds for believing that grounds existed for a s 18(2) warrant-less search. See R v Scott (CA 491-492/97, 31 March 1998).

In the pre-trial ruling the learned District Court Judge referred to a decision of this Court R v Reid (CA 108/98, 30 July 1998) and quoted in part from the case. Mr Clark submitted that the passage was taken out of context and contended that the full passage needed to be considered. It was :

As to the finding of real evidence, we think that can be a relevant consideration, the weight of which may depend on the seriousness of the offending and the cogency of the evidence found. This is because of the necessity to balance legitimate state interests against intrusions on individual interests, requiring a weighing of relevant values and public interests, as this Court noted in R v Grayson & Taylor. In the present case, without demeaning the actual seriousness of the offending to which the discovered exhibits relate, we think that there will be cases where cogent evidence of more serious crime will weigh more in terms of reasonableness. So also will evidence more closely connected to the offending apprehended by the applicant for a warrant or the executor of a search. Here the exhibits indicate illegal drug activity but seem quite disjunctive of the activities on which the application for the warrant was based. We think that the discovery of the particular exhibits is insufficient in this case to outweigh the unlawful search of a subject’s home, with the intrusion on privacy that entailed. We would add that the rights protected by s 21 of the New Zealand Bill of Rights Act 1990 persuade us to emphasise the care which those who issue warrants must apply to questions of evidential and logical cogency.

It was submitted that the Judge placed undue emphasis on the real evidence which was found and the quantity of it. Counsel submitted that although the quantity was large none of the other indicia of dealing (like scales, list of names, deal bags, sums of cash, or

outwards signs of affluence) were present, it had been an error to place particular emphasis upon that. We do not agree but accept that this was a factor which the Judge was entitled to take into account.

We are not satisfied that any error on the part of the Judge has been demonstrated when he concluded that the search was neither unlawful nor unreasonable. In our view the second entry into the house which Constable Hinton announced was a warrant-less search was both lawful and reasonable. Accordingly the evidence of what was discovered then and thereafter was admissible.

It necessarily follows that the appeal against conviction cannot succeed.

The appeal against sentence was advanced on the basis that an effective sentence of 3 years imprisonment was manifestly excessive particularly as the Judge accepted that the appellant and his partner were chronic cannabis users and that a reasonably substantial quantity of cannabis would have been used personally by the appellant. Mr Gurnick gave evidence that he had been a cannabis smoker for 30 years and that his consumption had increased following a work related accident in 1985. He used cannabis for pain relief for chronic lower back pain associated with a prolapsed disc.

Emphasis was also placed on the fact that there was independent material confirming his position and the fact that he was making a real effort to deal with his problem but the District Court Judge concluded :

However the fact remains that the appropriate sentence in a case such as this cannot be set based on your personal circumstances.

The fact that there can be recognised exceptions to that principle was referred to by counsel including decisions of this Court in R v Jenkin & Povey (CA 72/94 and CA 73/94, 23 June 1994), R v Kelsall (CA 261/93, 3 August 1993), R v Donald & Smith (CA 101/96, 31 July 1996).

Particular emphasis was placed on the comments of Gault J in delivering the decision of this Court in Jenkin :

Of the personal circumstances identified by the Judge the one that can be supported by reference to authority as a recognised ground for departing from the normal custodial sentence for drug offending of this degree of seriousness is the third – the desire for and prospects of rehabilitative treatment. It has been recognised that with cases of substance addiction supported by repeated criminal offending sometimes a case can be made out for treatment with a view to breaking the cycle of offending. In such cases specific treatment programmes generally are proposed with professional reports as to commitment and prospects of success. When analysed the material before the sentencing Judge fell short of that.

On the other hand the Crown noted that the quantity of drugs recovered was substantial, that this man had previous convictions including a term of imprisonment for cultivating cannabis, manufacturing cannabis oil and possession of cannabis oil in 1990 and a more substantial term of imprisonment in 1995 for possession of cannabis for sale and cultivating cannabis. It is not to be ignored that the second sentence which was

2½ years imprisonment had been imposed in June 1995. Although Mr Gurnick would undoubtedly have been released from prison before the expiry of that sentence it is to be noted that this offending occurred almost immediately after the expiry of this last sentence.

Bearing in mind the approach in this Court in R v Dutch [1981] 1 NZLR 304 and subsequent decisions including R v Robertson (CA 9/91, 14 March 1991), R v Gosney (CA 263/95, 11 August 1995) and R v Petersen [1994] 2 NZLR 533, the sentence imposed was within the available tariff.

The District Court Judge in sentencing having considered the issues of rehabilitation, work prospects and the effect on the family said :

My view is that now that this is your third conviction for major drug dealing offences in the 1990’s, a sentence that would be capable of suspension is simply not possible.

It could not be said that the circumstances were such that the Judge in the exercise of his discretion could not determine that a deterrent sentence was necessary and appropriate and that a failure to deal with the matter on a rehabilitative basis is wrong in principle. The sentence imposed was severe but as against his history which demonstrated a man who was unable or unwilling to learn that the law applies to him as well as to others and that he could not or would not accept that peddling in drugs is an unlawful activity it was within range. The Judge was entitled to conclude that Mr Gurnick would continue to forfeit his right to remain in the community so long as he offends.

The appeal against sentence is also dismissed.

Solicitors:

Crown Solicitor, Auckland

McCaw Lewis Chapman, Hamilton