AUTON v NEW ZEALAND POLICE [2021] NZHC 1510

AUTON v NEW ZEALAND POLICE [2021] NZHC 1510 [23 June 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-000060[2021] NZHC 1510BETWEEN ANDREW MYERS AUTONAppellantAND NEW ZEALAND POLICERespondentHearing: 22 June 2021Appearances: P N Allan for AppellantS M H McManus for RespondentJudgment: 23 June 2021JUDGMENT OF GENDALL JThis judgment was delivered by me on 23 June 2021 at 3:30 p.m. pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] On 5 March 2021 Judge Brandts-Giesen in the District Court dismissed theappellant Mr Auton's application for a discharge without conviction in respect of onecharge of cultivating cannabis.[2] Following this, Mr Auton was then convicted and sentenced to 12 months'supervision and ordered to pay a $750 fine and court costs.1 He now appeals thatconviction and sentence and says he should have been discharged without conviction.Background[3] On 28 May 2020 police executed a search warrant at the address Mr Auton wasoccupying. When police searched this address, they located a cannabis cultivationinside the house.[4] There were grow tents in various locations throughout, including the fronthallway, kitchen, bathroom and a cupboard by the toilet. Each grow tent was fullysealed with a temperature regulator and ventilation system. In total there were32 cannabis plants and 46 seedlings located. Scattered throughout the house were asignificant number of grow nutrients and supplies. Overall a non-trivial operation.[5] In explanation Mr Auton stated his flatmate started growing cannabis in thehouse but he accepted half were his, however.[6] At the hearing of the District Court proceedings, it seems from Judge Brandts-Giesen's remarks that Mr Auton interrupted the lawyers and the Judge on variousoccasions to put forward his story that the plants belonged to the flatmate who hadmoved out and that he had to take care of them during lockdown. He said the formerflatmate and associates returned to the flat to harass him to ensure he was stillcultivating the plants. Mr Auton also said he never personally used the cannabis. Thiswas all unsworn evidence given from the dock.1 Misuse of Drugs Act 1975 s 9(1); maximum penalty 7 years' imprisonment.[7] His counsel, Mr Allan, submitted the basis on which Mr Auton had pleadedwas that he accepted he had cultivated the plants but that he did so because he felt hehad no choice. The prosecutor, Mr Burdes, referred to Mr Auton's DVD interview andnoted he was maintaining the grow for at least two months and had plenty ofopportunity to withdraw.[8] The Judge began his decision by recording the fact no application for dischargewas filed in advance of the hearing. Mr Allan instead advanced this by way of an oralapplication. The Judge commented this was unsatisfactory, as, he said, wereMr Auton's inappropriate interruptions to "rectify what he considers to be inaccuraciesin his own counsel's submissions, and also in remarks made by Mr Burdes for thepolice".[9] The Judge did acknowledge the gravity of the offending here was low butfound Mr Allan had not pointed to any particular circumstances that justified adischarge other than the usual stigma that follows a conviction. He therefore couldnot find the consequences of conviction were out of all proportion to the offending.[10] Judge Brandts-Giesen then proceeded to sentencing. He placed the cultivationin the lowest band of R v Terewi because there was no evidence of commerciality.2Then he considered Mr Auton's statements from the dock. The Judge found Mr Autonwas clearly more involved in the cannabis grow than he claimed and agreed withMr Burdes that he had plenty of opportunities to withdraw. The Judge determined hecould not grant a discharge without conviction on the evidence before him.[11] The Judge was informed Mr Auton could not complete community work, sofined him $750 to be paid at the rate of $20 per week. The Judge also placed him onsupervision for 12 months to "address any issues probation may identify, especiallywith respect to drugs and interpersonal relationships".2 R v Terewi [1999] 3 NZLR 62, (1999) 16 CRNZ 429.Principles on appeal[12] Section 107 of the Sentencing Act 2002 states an offender should only bedischarged without conviction if the Court is satisfied the consequences of aconviction would be out of all proportion to the gravity of the offence. There must bea "real and appreciable" risk that any given consequence will occur.3 The gravity ofthe offence is informed by the aggravating and mitigating factors of the offending andthe offender.4 A discharge without conviction may only be considered if this test issatisfied.[13] An appeal against a discharge without conviction is dealt with as an appealagainst conviction.5 The appeal will only be allowed if the Court is satisfied the Judgeerred in their assessment of the evidence such that a miscarriage of justice has occurredor that a miscarriage of justice occurred for any other reason.6[14] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.7 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".8 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.9Grounds of appeal[15] Mr Auton's stated grounds of appeal are:3 DC (CA47/2013) v R [2013] NZCA 255 at [43].4 R v Taulapapa [2018] NZCA 414 at [22].5 Jackson v R [2016] NZCA 627.6 Jackson v R, above n 5, at [12].7 Criminal Procedure Act 2011, ss 250(2) and 250(3).8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].9 Ripia v R [2011] NZCA 101 at [15].1. I ought not have been convicted of this offence given my lack ofprevious convictions and my low level of culpability; and2. The sentence imposed was manifestly excessive as the Judgeeffectively sentenced me and then added supervision on to [it] withoutit being either recommended by Probation or discussed with Counsel[16] I take this to mean Mr Auton is saying he ought to have been granted adischarge without conviction rather than seeking to retract his guilty plea and appealhis conviction.[17] Mr Auton filed his notice of appeal out of time, but the Crown does not opposean extension of time being granted, accepting there is no prejudice to the Crown here.Leave to bring the appeal out of time is granted. I will now consider the appeal andits merits.SubmissionsAppellant's submissions[18] Mr Allan submitted Mr Auton should be discharged without conviction. Hesummarised his points thus:(a) Mr Auton has no previous convictions;(b) the offending only came to light as a result of the Police happening onit rather than an investigation;(c) the offending did not involve harm or loss to any person;(d) notwithstanding the maximum penalty for the offence the gravity ofthis type of offending is low;(e) the offending came at a time shortly prior to a referendum as tolegalization of cannabis;(f) Mr Auton's explanation for performing acts of cultivation related tobeing subject to intimidation and of having little alternatives available;and(g) while no particular circumstances are made out Mr Auton would havea "blotting of his copybook" and the resultant stigma of conviction.[19] Overall, Mr Allan contended the gravity of the offending here was very low.[20] In the alternative, Mr Allan submitted the supervision component ofMr Auton's sentence was manifestly excessive. He said the Judge did not have thebenefit of a pre-sentence report or indeed any material suggesting Mr Auton hadrehabilitative needs. He noted, first, that the Judge set supervision at its maximumlength to "address any issues probation may identify [emphasis added]". Secondly, hesaid supervision was not contended for by the prosecutor or raised by the Court as apossible sentence.[21] Mr Allan submitted the appropriate sentence was instead a $750 fine to be paidin instalments if Mr Auton was not to be discharged without conviction.[22] I also note for completeness two further matters. First, at the conclusion of theappeal hearing before me, Mr Auton asked whether he could make a statement to theCourt. I agreed and Mr Auton then spoke for a short time regarding matters he wishedto put before the Court. I have taken those matters raised into account in reaching mydecision on this appeal.[23] The second matter occurred this morning, 23 June 2021, when the Registryoffice in this Court received from Mr Auton an email raising a number of other matterswhich he wished me to consider relating to his appeal.[24] I have also had an opportunity now to consider these additional matters whichMr Auton has raised in his email today, and I confirm that I have carefully taken intoaccount all matters he has raised which are relevant to this appeal.Respondent's submissions[25] Ms McManus for the respondent, first, made submissions on the applicationfor discharge without conviction. She said points (b) and (e) at para [18] above, raisedby Mr Allan do not mitigate the gravity of the offending. Ms McManus maintainedthat this was a relatively sophisticated cultivation operation, there was no evidence tosupport Mr Auton's statements and claims from the dock, and the gravity of theoffending in reality was at a greater level than Mr Allan suggested, being low tomoderate.[26] Ms McManus submitted the natural consequences of a conviction referred toby Mr Allan were not out of all proportion to the gravity of the offending. Overall,she said no evidence had been provided that could convince this Court there was amiscarriage of justice.[27] On the sentence appeal, Ms McManus contended that the Judge had notaccepted Mr Auton's evidence from the dock and was entitled to do so. He maintainedthe sentence of supervision in addition to a fine was within the range available andwas not manifestly excessive.Analysis[28] The tariff case on cannabis cultivation is R v Terewi.10 There the Court ofAppeal divided cannabis cultivation offending into three broad categories. Onlycategory one is relevant here:11Category 1 consists of a small number of cannabis plants for personal use bythe offender without any sale to another party occurring or being intended.Offending in this category is almost invariably dealt with by a fine or othernon-custodial sentence.[29] I accept this was a non-trivial operation. The grow was relatively sophisticatedwith a number of sealed growing tents which were temperature regulated andventilated. But, as has been generally accepted by the Crown, there is no evidence thecannabis was intended for sale. It is therefore category one offending.10 R v Terewi, above n 2.11 At [4].[30] I agree with Ms McManus that the fact the offending was discovered withoutsignificant investigation and this occurred just prior to the cannabis referendum, doesnot reduce the gravity of the offending. Offending is not necessarily more seriousbecause it is the target of a police operation, and cannabis cultivation remained anoffence at the relevant time notwithstanding the upcoming referendum. For similarreasons I do not accept Mr Allan's submission that the gravity of this type of offendingis especially lower than the maximum penalty for the offence.[31] I do, however, consider Mr Auton's lack of previous convictions and the factthere is no evidence of harm or loss to another person as generally reducing the gravityof the instant offending.[32] Mr Auton's pleas in mitigation from the dock and those raised by Mr Allan area different matter, however. The Sentencing Act states that if a disputed fact inmitigation is raised at sentencing the prosecution must disprove it beyond reasonabledoubt unless it is wholly implausible or manifestly false.12 The reverse onus does notapply because the facts raised are related to the nature of the offence and Mr Auton'spart in the commission of the offence.13[33] The mitigating facts raised are that Mr Auton was subject to intimidation andhad little by way of an alternative available. I find the suggestion that he had littlealternative available manifestly false. He did not have to maintain the grow for thetwo months he did. And it seems, given the level of sophistication and comment inthe summary of facts that the plants appeared of good quality, he was maintaining thegrow with some care and attention.[34] In addition, Mr Auton pleaded guilty to the police summary of facts whichnotes his comment that his flatmate started growing the plants, but he acknowledgeshalf were his. Given this plea he cannot now say all of the plants were his flatmates.That admission must cut across any plea in mitigation that he had little alternativeavailable.12 Sentencing Act 2002, s 24(2)(c).13 Sentencing Act, s 24(2)(d).[35] The suggestion he was subject to intimidation, however, has not beendisproven beyond reasonable doubt on the evidence I have reviewed. Nor can I say itis wholly implausible. In the District Court proceedings Mr Allan recounted whatseems to have been a perfect storm of circumstances that led Mr Auton to be residingat the address where the cultivation occurred. Within those circumstances it is at leastplausible Mr Auton may have been intimidated into continuing cultivation. Thatmitigating fact must go some way to reducing the gravity of his offending.[36] Having said that, I reject Mr Allan's characterisation of the gravity here as"very low". It was still a non-trivial number of plants that were maintained in asomewhat sophisticated manner. And this is an offence punishable by a maximumpenalty of 7 years' imprisonment. The gravity of the offending was perhaps moderateor even low, but not very low.[37] Following that finding, and the fact Mr Allan has not referred to any particularconsequences of a conviction, it cannot be said that the consequences of convictionare out of all proportion to the gravity of the offending. Indeed, Mr Allan seemed toaccept in the District Court proceedings that this offending could rightly be punishedby a fine at least. No miscarriage of justice has occurred here, therefore, and the appealagainst conviction is dismissed. It is also worth noting, though I did not give it anyweight, that Mr Auton has twice previously been discharged without conviction.14[38] I turn now to the appeal against sentence.[39] Section 46 of the Sentencing Act states a sentence of supervision may beimposed:only if the court is satisfied that a sentence of supervision would reduce thelikelihood of further offending by the offender through the rehabilitation andreintegration of the offender.[40] Judge Brandts-Giesen in the District Court was clearly satisfied as such or hewould not have imposed the sentence.14 Indeed, as to one of these, in a relatively recent decision of Clark J in this Court on 4 December2019 (Auton v Police [2019] NZHC 3178) her Honour allowed an appeal and discharged Mr Autonunder s 106 Sentencing Act on charges relating to his estranged partner of discharging a firearm,wilful damage and breach of a protection order.[41] The hierarchy of sentences and orders in the Sentencing Act places supervisionone step higher (alongside community work) than a fine or reparation.15[42] I do not give great weight to Mr Allan's submission relating to theunexpectedness of the supervision sentence. The Judge clearly signalled when hebegan his remarks that he would have considered community work and in any eventwas not restricted by the submissions of either party. The question for this court iswhether the sentence imposed was manifestly excessive.[43] The Sentencing Act includes a presumption in favour of a fine unless theoffender does not have the means to pay it or the purposes and principles of sentencingcannot be achieved by imposing a fine.16[44] In Riches v Police, Nation J, on appeal, imposed a fine of $1,700 and12 months' supervision for the cultivation of six mature cannabis plants and twosmaller plants.17 The offender there was a first offender and pleaded guilty promptly.At first glance, Mr Auton's offending was more severe, given it involved 26 moreplants and 46 seedlings. Even considering the mitigating factor that Mr Auton mayhave been intimidated into continuing the cultivation, the cases must be regarded asof at least comparable gravity. The fine in Riches was more than twice the fineimposed by the Judge here, and the supervision the same. The present sentence wastherefore clearly within range.[45] Having regard to this comparable case and the purposes and principles ofsentencing generally, in my view, it cannot be reasonably said that this sentence wasexcessive, let alone manifestly so. In all the circumstances prevailing in the presentcase, I am satisfied a fine, together with supervision, was the appropriate sentence.15 Sentencing Act, s 10A(2).16 Sentencing Act ss 13(1) and 14.17 Riches v Police [2017] NZHC 2035.Conclusion[46] For all these reasons, I conclude that Judge Brandts-Giesen did not err in anyway in his assessments here. This appeal is dismissed....................................................Gendall JSolicitors:Crown Solicitor's Office, Raymond Donnelly & Co, ChristchurchCopy to:Phillip Allan, Barrister, Christchurch