DOBSON v POLICE [2017] NZHC 3185

DOBSON v POLICE [2017] NZHC 3185 [18 December 2017]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI TERENGA PARĀOA ROHECRI-2017-488-36[2017] NZHC 3185BETWEEN ANTHONY PAUL DOBSONAppellantAND NEW ZEALAND POLICERespondentHearing: 11 December 2017Appearances: R Samuel for the AppellantJ W Wall for the RespondentJudgment: 18 December 2017JUDGMENT OF WOODHOUSE JThis judgment was delivered by me on 18 December 2017 at 3:00 p.m.pursuant to r 11.5 of the High Court Rules 1985.Registrar/Deputy RegistrarSolicitors:Mr R Samuel, Barrister, AucklandMr J W Wall, Marsden Woods Inskip & Smith, Office of the Crown Solicitor, Wellington[1] Mr Dobson appeals against a sentence of imprisonment for 3 years 6 monthsfor offences of cultivating, supplying, and offering to supply, cannabis.1 Mr Dobsoncontends that the sentence imposed was manifestly excessive on two principalgrounds, as follows:(a) He was sentenced on the basis that he was involved in cultivation oftwo quite separate growing operations, but he was involved in onlyone. Mr Dobson contends that evidence establishes that he was onlyinvolved in cultivation of what the Judge found to be 211 smallerplants in a shade house, and that he was not involved in cultivation of877 more mature plants growing on "the hillside"(b) If the evidence was sufficient to establish his involvement incultivation of the hillside plants, his involvement in this was minimal:he was a minor participant compared with others involved and, inparticular, compared with his co-offender, Mr Starwood, known as MrCrump[2] Mr Dobson and Mr Crump were jointly charged with cultivation of cannabis.Mr Dobson had pleaded guilty to that charge subject to a disputed facts hearing. MrCrump had pleaded not guilty. The disputed facts hearing was combined with MrCrump's trial, which was a Judge alone trial before Judge M J Hunt. Judge Huntdelivered a reserved judgment on the charges against Mr Crump, and on the disputedfacts for sentencing of Mr Dobson.2 The evidence had been heard over four days.The prosecution evidence was heard over three days in early March 2017 andevidence from Mr Dobson, and from a witness he called, was heard approximately11 weeks later, at the end of May 2017. I note the point because it meant Mr Dobsonhad a substantial amount of time to consider his response to the prosecutionevidence.[3] A summary of the Judge's findings is conveniently taken from a summary inthe written submissions for the respondent, as follows:1 Police v Starwood and Dobson [2017] NZDC 16791.2 Police v Starwood and Dobson [2017] NZDC 12245.(a) The Judge accepted that the Crown had not led evidence to suggestthat Mr Dobson had been involved in the initial planting of thehillside cannabis in about November 2015. His involvement began inJanuary 2016.(b) Mr Dobson lacked credibility in his explanations and sought tominimise his involvement.(c) Mr Crump, made statements which implicated the appellant in thehillside cultivation.(d) Mr Dobson accepted ownership of a backpack and bag that containeditems used in the hill-side cultivation.(e) Mr Dobson's response to questions asked by Constable Frenchsuggested an acknowledgement of involvement in the hill-sidecultivation.(f) Mr Dobson's claim that he cultivated the plants in the shade house forpersonal use strained credulity.(g) Mr Dobson had pleaded guilty to charges involving supply and therewas surrounding evidence that the appellant had been texting othersabout supply during the period he was living on the property.[4] Based on those findings, explained in reasonable detail, the Judge wassatisfied, beyond reasonable doubt, that Mr Dobson had been involved in the hillsidecultivation, as well as in the shade house cultivation he admitted.[5] On sentencing, the Judge referred to his disputed facts conclusion that MrDobson was "fully engaged in the cultivation activity and the participant in a realand meaningful way in the operation". This was a reference to the hillsidecultivation as well as the shade house cultivation. The Judge said that the 211 plantsin the shade house were "indicative" of Mr Dobson's participation in the entireoperation.[6] Importantly, in relation to the extent of Mr Dobson's involvement in all of thecultivation, the Judge said:3[9] So while I accept the evidence does not point to you as havingplanted the plants at first instance, the evidence was that they were likelyplanted late 2016. Once you arrived on the scene, my assessment is that youwere an active and meaningful participant in the overall operation with aview to procuring cannabis for the purposes of supply to others, which is infact what you did.[7] On the question of parity, and in reference to submissions from Mr Samuelon sentencing, the Judge said:4[14] He too seeks to distance you as a lesser participant and asks forextensive discounting based on that lesser participation. To the extent therewere others involved, they are not within the scope of my decision making todetermine what happens, and in this instance your sentencing proceeds onthe basis of your culpability. How others might be dealt with, depending onwho initiated the operation, who has planted it out, is just speculation.[17] I conclude you were employed in this operation from the point atwhich you entered into it on a fully engaged basis, you had a degree ofautonomy, you were able to use some of the product for your own purposesand did so. The pre-sentence report talks about your situation, it says youhave some convictions but not a significant history. There is limitedcannabis related activity and none of it justifying an uplift, none approachesthe level of seriousness that this matter does.[8] In the earlier judgment the Judge had recorded his findings, based on policeevidence, that the monetary value of the entire marijuana crop was between$382,400 and $836,700. He said that this put the value "squarely in the thirdcategory of R v Terewi5 as the 2017 inflation adjusted equivalent of $100,000 in 1999is $147,634.36".6[9] The Judge fixed a starting point for Mr Dobson's sentence at 4 yearsimprisonment, being the bottom of category 3 in Terewi. This was the same startingpoint he fixed for Mr Crump. The Judge said:73 R v Starwood and Dobson, above n 1.4 R v Starwood and Dobson, above n 1.5 R v Terewi [1999] 3 NZLR 62 (CA).6 Police v Starwood and Dobson, above n 2, at [117].7 R v Starwood and Dobson, above n 1, at [21].The size of the operation, the scale of it and the fact that while you may nothave been an architect but were key and integral to it, are factors that Iinclude in that start point.[10] The starting point was increased by four months because of the supplycharges. There was no reduction for personal factors, and no issue arises in thatregard. There was a reduction of just under 20 per cent for guilty pleas, andnotwithstanding the fact that guilty pleas to the supply charges were entered at a latestage. This resulted in the end sentence for cultivation of imprisonment for 3 yearsand 6 months. There were concurrent sentences of 8 months imprisonment for thesupply offences.Did the evidence establish involvement in the hillside cultivation?[11] Mr Samuel, in his oral submissions for Mr Dobson, identified six main pointsin support of the argument that the Judge was wrong to find that Mr Dobson wasinvolved in the hillside cultivation. I note these in the following paragraphs, withmy response.[12] The first point was that the plants in the shade house were much younger thanthe plants on the hillside; those in the shade house ranged from four to 12 weeks,whereas those on the hillside were all at least two-and-a-half months old. This doesnot demonstrate in any way that Mr Dobson was not involved in the hillsideoperation. What it does illustrate is the unpersuasive nature of Mr Dobson'sarguments, including the contentions he advanced in evidence. As earlier noted, MrDobson had not got to the property until late January, and the hillside was probablyplanted in around November of the preceding year. Mr Dobson admitted planting inthe shade house when he got to the property and said that that is all he did. Hecontended that, for these reasons, the Judge should have accepted that he could nothave been involved in the hillside. That sort of reasoning by Mr Dobson, whichignored other evidence, understandably was rejected by the Judge.[13] Mr Samuel's second point was related to the first. This is that the Judge waswrong in his conclusion that the "activities in the shade house were complementaryand supplementary to the hillside". Even if the Judge was wrong in that conclusion,it does not bear in any material way on the validity of his findings on particularmatters of fact, and credibility, to lead to his conclusion that Mr Dobson wasinvolved in both cultivations. In any event, the evidence supports the Judge'sgeneral observation.[14] The third point was directed to the fact that part of a water irrigation system –emitters – were found in Mr Dobson's backpack. Mr Samuel submitted that this didnot link Mr Dobson to the hillside cultivation; the Judge should have accepted thatthe emitters were for the shade house. Mr Dobson's statement to Constable Frenchjustified the inference that, when Mr Dobson acknowledged that he had "beenchanging up the system", he was referring to the hillside system.[15] The fourth point related to rags found in a bag in Mr Dobson's room. Theplants on the hillside were tied to stakes with rags. Mr Samuel submitted that therewas no forensic link between the rags on the hillside and those found in Mr Dobson'sroom. The Judge's discussion of the rags was as follows:8[100] In the course of the examination of the house, a bag of rags waslocated. Mr Dobson was asked about that, as the same rag was locatedsecuring plants in the large block. The rag is distinctive. It was located inthe house, albeit not directly in Mr Dobson's room and on the hill block usedto secure a plant. Mr Dobson's response when asked about that byConstable French was:"Tell me a bit about the rags found in the bag in your room. Arethey the same ones used to tie up mature cannabis plants in plotsfound on the hillside? Interrupting me he answered: "Yeah, they'remine. I'm sorry. I use those rags to tie up fruits, flowers, all thoseplants, they're all mine".[101] Mr Dobson in evidence explained that he was referring only to theshade house, but could not point out where within the shade house, there wasany sign of rags being used. I reject his explanation. It was contrived. Theanswer given in response to Constable French makes plain that the rags wereused in the hill block in the very way that Mr Dobson said he used them.That is because Mr Dobson was one of the people tending the hill block.[16] I agree with the Judge's conclusion on this evidence.[17] A fifth point related to another statement by Mr Dobson to Constable Frenchabout the height of plants. As with the rags, this on the face of it was an express8 Police v Starwood and Dobson, above n 2, footnotes omitted.admission by Mr Dobson of involvement in cultivation of the hillside plants. Theevidence from Constable French was as follows:9A. he made the comment, "Those are the plants yet, the best plantsI've ever grown. We just (inaudible 10:21:44) the biggest drugaddict ever. Those plants are good age," looks above his headindicating the height of the plants and the taller, to be taller than heas I understand it which is my notes indicating his actions.[18] Mr Dobson's contention was that this was a reference to a small plant takenfrom the shade house, but sitting on a bench so that it would be above Mr Dobson'shead. That is a completely implausible explanation, long after the event, to seek toexplain away an admission.[19] A final point related to the fact that police found a chemical known aspindone on the hillside, but there was none in the shade house, and Mr Dobson saidthat the cultivation in the shade house was all organic. These points do not remotelysuggest that Mr Dobson was not involved in both cultivations.[20] There was no error by the Judge in his conclusion that Mr Dobson wasinvolved in the cultivation on the hillside as well as the cultivation in the shadehouse. In consequence, Mr Dobson was properly sentenced on the basis that he wasinvolved in cultivating all of the plants.The sentencing starting point and parity[21] Mr Samuel submitted that, if the Judge's findings of fact were upheld, MrDobson's involvement in the hillside cultivation was nevertheless minor and hissentence should have been "far lower" than those involved in the hillside cultivation.Mr Samuel submitted that Mr Dobson's "sentence", which I will treat as a referenceto the starting point, should have been 50 per cent of that for "the primary party",although it was not clear whether Mr Samuel was referring to Mr Crump as theprimary party, or to others who may have been involved in setting up and plantingthe main cultivation on the hillside. It appears that Mr Crump had provided accessto the property for others to plant the hillside and had provided the watering system9 Notes of evidence p 82/11.[22] For the reasons that follow, I am satisfied that there was no error by the Judgewarranting a reduction of the starting point, or otherwise warranting a reduction ofthe end sentence.[23] Mr Dobson was sentenced immediately following Mr Crump's sentencing.Judge Hunt, in sentencing Mr Dobson, directed himself to the principle of parity,contained in s 8(e) of the Sentencing Act 2002, and to Mr Samuel's submissions inthat regard. The Judge made the following observations:[6] So you were in the business of supplying others in Auckland withdrugs from this property and those pleas of guilty to the charges of supplyare a material part of my assessment of your culpability in this offending.[7] My conclusions from the disputed facts hearing were that yourmessages and your responses on that day and those observations that weremade about the block were all consistent with your involvement in the wholeblock and the overall operation.[8] You also took responsibility personally for developing a nursery areaand said as much and you made a rather clumsy attempt to destroy that whenit became apparent that the operation had detected cannabis in and aroundthe property. Those 211 plants in my assessment were indicative of yourintention to be fully engaged in the cultivation activity and a participant in areal and meaningful way in the operation.[14] [Mr Samuel] too seeks to distance you as a lesser participant andasks for extensive discounting based on that lesser participation. To theextent there were others involved, they are not within the scope of mydecision making to determine what happens, and in this instance yoursentencing proceeds on the basis of your culpability. How others might bedealt with, depending on who initiated the operation, who has planted it out,is just speculation.[17] I conclude you were employed in this operation from the point atwhich you entered into it on a fully engaged basis, you had a degree ofautonomy, you were able to use some of the product for your own purposesand did so. The pre-sentence report talks about your situation, it says youhave some convictions but not a significant history. There is limitedcannabis related activity and none of it justifying an uplift, none approachesthe level of seriousness that this matter does.[21] The size of the operation, the scale of it and the fact that while youmay not have been an architect but were key and integral to it, are factorsthat I include in that start point. [24] The Judge's summary of the extent of Mr Dobson's involvement was justifiedin light of his findings of fact from the disputed facts hearing and the relevantfindings for the conviction of Mr Crump. A starting point of 4 years for Mr Dobsonwas not close to being manifestly excessive. It is well within range having regard tothe guidelines in Terewi and other leading cases. Mr Dobson was actively engagedin cultivation of a substantial quantity of cannabis for commercial purposes. Theevidence justified a conclusion that he was actively engaged in commercial dealingsin cannabis from the hillside cultivation. And his own evidence made clear that hewas solely responsible for the cultivation of 211 plants in the shade house. Theproduct from some of those plants may have been for Mr Dobson's personal use, butI am satisfied that this part of the cultivation, with Mr Dobson solely responsible,was also for commercial dealing.[25] On the question of parity, and leaving aside for the moment the starting pointfor Mr Crump, the fact that others may have been involved in a substantial way inthe planting of the hillside, or in other ways, does not provide grounds to reduce MrDobson's starting point assessed in relation to the extent of his involvement. I agreewith the Judge's observation at [14] of his sentencing notes, quoted above. MrSamuel submitted that Mr Dobson's culpability should have been assessed as lessthan that of others because Mr Dobson was not involved in the main harvesting ofthe plants on the hillside. It is factually correct that Mr Dobson was not involved inthe main harvesting, but the fact does not assist Mr Dobson. This is for the simplereason that the main harvesting was not going to occur until sometime after MrDobson was arrested in March.[26] I am also not persuaded that the starting point for Mr Dobson's sentenceshould have been less than that for Mr Crump. The nature of Mr Crump'sinvolvement was different from that of Mr Dobson, but there is no justification forassessing the nature of Mr Dobson's involvement as being in some way materiallyless, in terms of substantial involvement in the overall operation, than that of MrCrump.[27] The challenge to the starting point of 4 years is dismissed.[28] The only other submission directed to the sentence was that there should havebeen the maximum credit of 25 per cent for the guilty pleas. I do not agree. Theguilty plea to the cultivation charge was entered at a reasonably early stage, butguilty pleas to the two supply charges were entered only on the first day of theintended trial.Result[29] The appeal against sentence is dismissed.______________________________Woodhouse J