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R v GREER [2004] NZCA 72 (20 May 2004)

Court of Appeal of New Zealand

R v GREER [2004] NZCA 72 (20 May 2004)

Last Updated: 30 June 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 163/03

THE QUEEN



v



ALAN IVO GREER

Hearing: 17 May 2004

Coram: O'Regan J
Wild J
Doogue J

Appearances: B S Yeoman for Appellant
M F Laracy for Crown

Judgment: 20 May 2004

[1]	By notice dated 21 April 2003 the appellant seeks leave to appeal against his conviction and sentence in the District Court at Palmerston North. He was convicted having pleaded guilty on arraignment at the start of his trial on 21 June 1999 to nine of the 12 counts in the indictment, and to the remaining three a little way in to the Crown case at trial. He was sentenced on 9 July 1999.
[2]	A previous application for leave to appeal dated 16 July 1999 was declined in or about August 1999.
[3]	An adjournment was sought and declined on 16 March 2004. The application for an adjournment was renewed before us. However, we need not rule on the application for an adjournment, and need not comment on the alleged lack of disclosure which was the basis for it. The allegation of a lack of disclosure is impossible to reconcile with the appellant’s guilty pleas.

Conviction appeal

[4]	The basis for the application for leave to appeal against conviction is that the search of the appellant’s home which led to the charges was an unlawful one. It is submitted that the trial Judge was wrong not to exclude, as exhibits in the case, the fruits of the search, on the principles established in R v Grayson and Taylor [1997] 1 NZLR 399 (CA). Under Grayson principles, the question was whether the search was unreasonable. Its lawfulness or unlawfulness, whilst highly relevant, was not necessarily determinative either way.
[5]	There is no suggestion in the evidence called before the appellant pleaded guilty to the remaining charges that the search was unlawful. Detective Sicely gave evidence that the Police executed search warrants at the appellant’s home on 30 June, 2 July and 3 July 1998 – three successive search warrants. It was not put to the Detective that any of those warrants was improperly obtained or executed.
[6]	The second ground of the application for leave to appeal against conviction is that the appellant was poorly advised by his counsel at trial and was pressured to plead guilty to nine counts in the indictment in order to assist his co-accused, who was his then partner and mother of their three children. No evidentiary foundation for this ground was laid: there was no supporting affidavit(s) and no waiver was filed enabling a report to the Court by the counsel who represented the appellant at trial. We note that counsel was very experienced senior counsel. As we have mentioned, the appellant pleaded guilty to nine of the 12 charges in the indictment upon arraignment at the start of his trial, and to the other three a little way into the trial. Two of those three counts alleged receiving and the third taking documents with intent to defraud. The video recorder, cheque books and bank drafts which are the subject of those three counts were all located in the appellant’s home in the course of the three searches of it. There is no indication in the evidence, so far as it went before guilty pleas to the remaining three charges brought the trial to an end, as to what, if any, the defence to those charges might be.
[7]	None of the grounds for the appeal against conviction is made out.

Sentence appeal

[8]	The nub of the application for leave to appeal against sentence is that the sentencing Judge, Judge Adeane, erred in taking a four year starting point on the possession of Class B drugs for supply count, rather than a three year start point.
[9]	Four of the counts in the indictment were for drug offences. The appellant pleaded guilty to all of them on arraignment. Two of those charges involved the Class B controlled drug cannabis oil and the other two the Class C controlled drug cannabis plant. It was on possession of cannabis oil for supply and possession of cannabis plant for sale that the Judge took his four year starting point. The submission is that that is out of line with the decisions of R v Wallace and Christie [1999] 3 NZLR 159 and Griffiths v R CA 207/99, 28 July 1999.
[10]	In the course of their searches of the appellant’s home, the Police located 26 grams of cannabis oil, 16 kg of cannabis leaf (ten kg of which was high quality leaf with a value exceeding $50,000), many hybrid (so-called "skunk") cannabis plants growing and apparatus for cannabis oil manufacture e.g. bulk isopropyl alcohol. The sentencing Judge described what the Police searches uncovered as "a thoroughly comprehensive cannabis operation". Although the Crown had submitted that the operation was in the top category identified by the Court of Appeal in R v Dutch [1981] 1 NZLR 304 (CA), the Judge thought it could be placed at the top of the second category. He categorised it as "typical of the sort of operation which is grown by someone with not only a commercial interest in cannabis but a personal interest in cannabis". The Judge noted that the amounts involved vastly exceeded the level at which a commercial motivation is imputed. Even allowing for a significant amount of low grade material, the Judge noted that the value of the cannabis secreted away by the appellant was considerable.
[11]	R v Terewi [1999] 3 NZLR 62 (CA) is, of course, now the leading authority on sentencing for cannabis cultivation offending. Ms Laracy said this case was decided before Terewi, but submitted that a comparison with cases set out in the Schedule to Terewi of Category 2 offending supported the Judge’s four year starting point, and could have justified a starting point approaching five years for the combined drugs charges. In fact, Terewi was decided on 25 May 1999, about six weeks before the sentence under appeal was imposed. We accept that, in relation to cultivation, the appellant’s offending was in Terewi Category 2: small-scale cultivation of cannabis plants for a commercial purpose, with the starting point for sentence generally between two and four years, lower where sales were infrequent and of very limited extent.
[12]	In terms of cases referred to in the schedule of Category 2 offending in Terewi, Ms Laracy pointed us particularly to R v May CA279 & 280/91, 18 November 1991. That case involved a guilty plea to a charge of cultivation of cannabis. 10.5 kg of cannabis valued conservatively at $45,000 was involved, plus thousands of seeds and an underground drying and storage facility. A sentence of three years imprisonment was substituted for one of four years.
[13]	As with all the cases collected in Terewi, May is of limited relevance because it involved cannabis cultivation, and this appeal is against the Judge’s four year starting point in fixing his sentences for possession of cannabis oil for supply and possession of cannabis plant for sale.
[14]	We need therefore to look beyond Terewi, and the cases mentioned in it, to decisions indicating sentencing levels in and around 1999 for possession of cannabis plant for sale and possession of cannabis oil for supply, perhaps particularly the latter. In R v Harding & Martin CA308, 348/92, 11 December 1992 this Court had noted a range of sentences for possession for supply of cannabis oil ranging from two and a half years for 118 grams to six months for 2.6 grams.
[15]	In Rameka v R CA18/99, 13 May 1999 a sentence of four and a half years imprisonment was upheld. Having pleaded guilty to possession for supply of cannabis oil and a representative charge of manufacturing cannabis oil, Rameka had been sentenced to four and a half years (concurrent) on each count. He had left several pounds of cannabis plant and a large quantity of isopropyl alcohol at a neighbouring property. He had begun manufacture of a second batch of cannabis oil when the Police arrived to search the premises. It was estimated that he had sufficient cannabis to supply over 160 capsules of oil per week, valued at some $4,800. Twelve previous cannabis convictions (including for possession, supply and cultivation) featured in Rameka’s lengthy criminal history. The sentencing Judge had described Rameka’s cannabis production operation as a well organised and well run one.
[16]	In the course of dismissing the appeal in Rameka, this Court referred to a number of cases involving possession for supply of cannabis oil. They included R v Stott CA98/78, 10 April 1979 (S found guilty at trial, 232 grams of cannabis resin, three years upheld); R v Leydon CA136/79, 10 December 1979 (guilty plea, 6.96 grams of resin, two and a half years upheld though termed "severe"); R v Traber CA73/92, 13 May 1992 (pleas of guilty to manufacture and possession for supply of $4,000 worth of cannabis oil, three years upheld); R v Kemp CA172/95, 26 June 1995 (pleaded guilty on arraignment to possession of equipment for manufacture and 71 capsules, two and a half years upheld though "towards the top end of the range").
[17]	In R v Burke CA373/98, 19 April 1999 this Court indicated, obiter, that a sentence of four years imprisonment after a contested hearing for offences involving $40,000 worth of cannabis oil, could not be seen as excessive.
[18]	In terms of its culpability, we regard the combined drugs offending in this case as more akin to Rameka and Burke, than to Stott, Leydon, Kemp and Traber. The Judge’s four year starting point is thus comfortably within the sentencing range indicated by those cases.
[19]	It is not suggested that the Judge’s 12 month discount for guilty pleas and other factors was inappropriate, although it was submitted it should have been subtracted from a three year start point. We think that 12 month discount applied to the Judge’s four year start point is entirely appropriate. In addition to the appellant’s guilty pleas, we note the following factors mentioned by the Judge: an apparent "watershed" in the appellant’s attitude to criminal offending generally; the fact that only one of his significant number of previous convictions was a drug offence, committed back in 1985; that it was unlikely, given the appellant’s frequent brushes with the law, that his commercial involvement with cannabis had been a longstanding one.
[20]	The start point of the sentence under appeal is appropriate and the end point well within the appropriate sentencing range. In no way can we view it as manifestly excessive.

Result

[21]	The application for leave to appeal both against conviction and sentence is dismissed. The convictions entered and the sentences imposed stand.

Solicitors:
Brian Yeoman, Petone for Appellant
Crown Law Office, Wellington