R v Kennedy Coa

• Jurisdiction: New Zealand
• Judge: Harrison J
• Judgment Date: 28 March 2011
• Neutral Citation: [2011] NZCA 109
• Docket Number: CA859/2010
• Court: Court of Appeal
• Date: 28 March 2011

BETWEEN

The Queen

Applicant

and

Patrick Arthur Kennedy

Respondent

[2011] NZCA 109

Court:

Harrison, Courtney and Clifford JJ

CA859/2010

IN THE COURT OF APPEAL OF NEW ZEALAND

Application by the Crown for leave to appeal against sentence of 12 months home detention and 400 hours community work — cultivation of cannabis — District Court placed offending at mid-category two of R v Terewi — 10 kilos of cannabis and 40 plants found as well as scales and bags — low level commercial use — respondent heavy cannabis user — non-custodial sentence given based on respondent's efforts at rehabilitation — whether term of imprisonment should have been given.

Counsel:

S Edwards for Applicant

R Fairbrother for Respondent

The Solicitor-General's application for leave to appeal against sentence is declined.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Harrison J)

Introduction

1 In sentencing the respondent, Patrick Kennedy, Judge Rea acknowledged the dilemma not infrequently posed by two conflicting sentencing purposes 1 On the one hand was the need to punish serious drug offending. On the other hand was the need to recognise and promote Mr Kennedy's positive steps towards rehabilitation. The latter factor prevailed, resulting in a non-custodial sentence and generating this

application by the Solicitor-General for leave to appeal against what he says was a manifestly inadequate sentence or one which was wrong in principle 2

2 Mr Kennedy pleaded guilty to two counts of cultivating cannabis prior to trial in the District Court at Napier. He pleaded guilty to possessing a sawn-off shotgun during the trial. He was found guilty by the jury on the remaining charge of possessing cannabis for the purpose of sale. Judge Rea treated the cultivation charges as the lead or index charges. He sentenced Mr Kennedy to 12 months home detention and 400 hours community work on each concurrently. A fine of $5,000 was imposed on the possession for sale charge.

3 Ms Edwards, counsel for the Solicitor-General, submits that the starting point of three years imprisonment adopted by the Judge was too low in terms of this Court's guideline judgment in R v Terewi; 3 that the discount of one year allowed for personal mitigating features was excessive; and that a sentence of home detention did not adequately address relevant sentencing goals, specifically denunciation and deterrence.

Circumstances

4 The relevant facts fall into a narrow spectrum. When executing a search warrant at Mr Kennedy's home in late 2009, the police found over 10 kilograms of cannabis head in the house and 40 plants growing outside. There were 21 ounce bags containing cannabis, an accepted denomination in cannabis dealing, in a blue drum. There were three other blue drums containing 9.7 kilograms of good quality loose cannabis head material. Some lower quality cannabis and several thousand cannabis seeds were also found. Apart from the cannabis, there were two sets of digital scales; a number of resealable plastic bags; a single-barrelled 12 gauge shotgun with a laser sight; some other drug paraphernalia; and $8,860 in cash.

5 In the opinion of a drug expert called for the Crown, the cannabis if sold could have realised between $70,000 and $185,000, depending on when and in which denominations it was sold.

District Court

Starting point

6 Given the quantity of cannabis in his possession, Mr Kennedy carried the burden of proving that none of the cannabis was for sale 4 Once he was found guilty, Judge Rea had to consider the commerciality involved in order to determine Mr Kennedy's level of culpability.

7 In the Judge's view, the amount of cannabis found in Mr Kennedy's possession was “huge” and, given that some of it was packaged, it was difficult not to infer that at least some was for supply 5 However, “there were no overt signs of sales” other than some admitted bartering 6 The Judge found that there was a commercial aspect to Mr Kennedy's possession of the cannabis; but how much he was to sell was dependent on opportunities 7

8 Mr Kennedy may have been fortunate that the Judge appeared to accept as genuine his assertion that the firearm was used for pig hunting, given the Judge's observation that that was the “normal excuse put forward for unlawful possession” of firearms 8 While acknowledging Mr Kennedy's “raging cannabis habit”, the Judge concluded his claims about how much he used were implausible taking into account the physiological effects of such high consumption. Nonetheless, the Judge accepted that Mr Kennedy was completely in a cannabis “thrall” – it was his reason for living 9

9 The Judge placed the offending at midway in band 2 of Terewi, which mandated a starting point of three years imprisonment.

Mitigating features and home detention

10 Judge Rea dealt with the mitigation and home detention compendiously. Having identified the starting point, he considered whether a sentence other than imprisonment was appropriate. He noted 10 citing this Court's decision in R v Hill, 11 that in some cases personal mitigating circumstances such as the effort “to rid oneself of a drug addiction” could justify a sentence of home detention where otherwise imprisonment would be appropriate.

11 The Judge observed that Mr Kennedy had “made every post a winner” since the search warrant was executed 12 and that:

• [8] It is not often, it has to be said, that a jury is told that the best thing that has happened to somebody is that they have been remanded in custody but that is the very submission that Mr Fairbrother has made. It would seem from the material that I have from the Probation Officer's report and the individual references that many people have gone to a good deal of trouble to provide, that Mr Kennedy has returned to a totally law abiding life and will continue to be a contributing member of the community in which he is living.

12 Judge Rea considered that “by a fine margin” a sentence of home detention could fulfil the sentencing purposes of denunciation and deterrence 13 As Ms Edwards notes, this observation implies that the Judge applied a discount of one year or one third of the starting point for mitigating factors. That is because eligibility for home detention requires a “short-term sentence” 14 defined for the purposes of the Sentencing Act 2002 as two years imprisonment or less 15

13 The Judge sentenced Mr Kennedy to a term of 12 months' home detention, the maximum period available for a sentence of home detention 16 on both charges (concurrently) of cultivation. As noted above, there were additional penalties of community work and a fine.

Appeal

Starting point

14 Terewi remains the applicable authority on sentencing levels or tariffs for cultivation and possession for sale offending 17 As noted, the Judge concluded that Mr Kennedy's offending was in the middle of category 2 offending as described in Terewi 18

… encompassing small-scale cultivation of cannabis plants for a commercial purpose, ie 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.

15 However, the Judge had earlier found that, based on the amounts of cannabis only, the offending was more properly characterised as at the top end of category 2,“but more likely” as lower category 3 of Terewi 19 Category 3 is the most serious class of cannabis dealing involving large scale commercial growing, usually with a considerable degree of sophistication and organisation, where on 1999 values annual revenues would be in the vicinity of $100,000 in cash or kind and a starting point of four years imprisonment is appropriate 20 In Mr Fairbrother's submission, the Judge's conclusion that it was mid-category 2 offending reveals the extent to which he considered the cannabis was for Mr Kennedy's personal use. In the absence of evidence of sales, Mr Fairbrother submits that the Judge made the correct subjective assessment as to the commercial extent of Mr Kennedy's operation.

16 However, given that absence of evidence of past sales, Ms Edwards submits that Mr Kennedy's culpability is to be measured according to his intent to conduct future sales. In that respect, she says, the quantity of cannabis is the central piece of evidence. Therefore, unsurprisingly, Ms Edwards relies on earlier authorities of this Court, where the starting point adopted was in a similar or higher range but the quantities of cannabis were significantly lower, to support her primary submission that the starting point adopted by the Judge was plainly inadequate.

17 Three of those authorities provide comparative assistance. In R v Duncan a starting point of three years' imprisonment on a charge of possession for supply was upheld where the quantity was 1.26 kilograms of cannabis 21 (but there was evidence of other drug possession and use). In R v Gray, a starting point of two and a half years imprisonment for possession for sale of over 3.5 kilograms of cannabis was upheld on appeal 22 In R v Bin Af If a total of 6.7 kilograms of dried cannabis together with 38 mature plants and the roots of 16 others attracted a four and a half year starting point 23 (but that was a sophisticated operation over two properties where the appellants were found to have equipment estimated at a value of around $40,000 to support the operation). Also relevant, although not cited by counsel, is R v Raihania 24 (a Solicitor-General's appeal) where a starting point of two and a half years was treated as appropriate and where the amount of cannabis found was 5.5 kilograms with an estimated street value of $40,000–$90,000.

18 In our judgment Ms Edwards is correct. A two stage approach is required to assess the starting point in this case. At the first stage, based on amounts of cannabis...