SMITH v R [2022] NZCA 606

SMITH v R [2022] NZCA 606 [6 December 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA133/2022[2022] NZCA 606BETWEEN CRAIG GRAY SMITHAppellantAND THE KINGRespondentHearing: 22 September 2022Court: Gilbert, Brewer and Moore JJCounsel: A M S Williams and C G Nolan for AppellantA L Mills for RespondentJudgment: 6 December 2022 at 9.30 amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Background[1] Craig Smith was convicted following a jury trial in the Greymouth DistrictCourt of one charge of possession of cannabis for the purpose of sale.1Judge J D Large sentenced him to seven months' home detention.21 Misuse of Drugs Act 1975, s 6(1)(f).2 R v Smith [2022] NZDC 3283 [Sentencing notes].[2] Mr Smith filed a notice of appeal against conviction and sentence. He laterabandoned his conviction appeal. His sentence appeal remains extant. This judgmentdeals with that appeal.The offending[3] On 28 April 2019, police executed a search warrant at Mr Smith's Greymouthaddress. They found:(a) 2.3 kilograms of dried cannabis head in Mr Smith's bedroom, stored inthree banana boxes, one shoe box and a freezer bag;(b) 1.8 kilograms of dried cannabis head in the spare bedroom, stored ina purple sports bag;(c) 315 grams of dried cannabis head in the bathroom, stored in a plasticshopping bag;(d) 425 grams of dried cannabis head in the hot water cupboard, also storedin a plastic shopping bag;(e) 10 grams of cannabis head in the lounge, stored in a small zip-lock bagand a yellow shopping bag;(f) three cannabis buds weighing approximately two grams on a magazinerack in the lounge;(g) 300 cannabis seeds on a computer desk in the lounge, stored in a smallplastic canister; and(h) a set of digital scales adjacent to the desk.[4] Mr Smith told police that he grew cannabis for personal use to alleviate hischronic back pain. This claim was supported by evidence from Mr Smith's doctor,Dr Greville Wood.District Court sentencing[5] Judge Large noted that the guideline judgment for cannabis cultivation wasR v Terewi.3 While Mr Smith had a "significant amount" of cannabis, the Judgeaccepted he used it for pain relief.4 There was no evidence of commerciality.5The Judge found himself unable to determine how much was for supply and how muchwas for personal use. As a result, he took into account personal use as a mitigatingfactor.6 He thus assessed Mr Smith's culpability as between Category 1 and 2 ofTerewi, rather than squarely in Category 2.7 He set a starting point of21 months' imprisonment.8[6] The Judge accepted that Mr Smith had medical issues and a "clearly entwined"cannabis addiction.9 He noted that Mr Smith now has a prescription for medicinalcannabis.10 The Judge thus applied a discount of 30 per cent.11[7] Although observing that cannabis "is not seen to be the drug it once was",the Judge considered that the least restrictive sentence available was one of homedetention, taking into account the principles of accountability, denunciation anddeterrence.12 He imposed a sentence of seven months' home detention.13Approach on appeal[8] This Court must allow the appeal if it is satisfied that for any reason there wasan error in the sentence imposed on conviction and a different sentence should beimposed.14 The focus is on the sentence imposed, rather than the process by which itis reached.15 The Court will not intervene where the sentence is within the range that3 At [3], citing R v Terewi [1999] 3 NZLR 62 (CA).4 At [6].5 At [6].6 At [7].7 At [9]–[10].8 At [11].9 At [15]–[16].10 At [16].11 At [19].12 At [20]–[22].13 At [23].14 Criminal Procedure Act 2011, s 250(2).15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].can properly be justified by accepted sentencing principles.16 To this end the conceptof a "manifestly excessive" sentence is well-engrained and there is no reason not touse it.17Issues on appeal[9] Mr Smith raises two issues on appeal:(a) whether the Judge erred by adopting a starting point that was too high;and(b) whether the Judge erred by imposing a sentence of home detentioninstead of a less restrictive sentence.Did the Judge err by adopting a starting point which was too high?[10] Mr Williams, for Mr Smith, first argued that the Judge erred by adoptinga starting point that was too high. He submitted that it was not clear that a "significantproportion" of the cannabis found in Mr Smith's possession was for sale, particularlygiven the evidence of his medical issues and related reliance on the substance. He thussubmitted that Mr Smith's culpability sat between Category 1 and 2 of Terewi, theappropriate starting point being between 12 and 15 months' imprisonment.[11] In Terewi, this Court set out three categories of cannabis cultivationoffending.18 Those relevant to the present case are Categories 1 and 2:19Category 1: consists of the growing of a small number of cannabis plants forpersonal use by the offender without any sale to another party occurring orbeing intended. Offending in this category is almost invariably dealt with bya fine or other non-custodial sentence. Where there have been supplies toothers on a non-commercial basis the monetary penalty will be greater and inmore serious cases or for persistent offending a term of periodic detention oreven a short prison term may be merited. (It is to be noted in this connectionthat there is no separate offence in relation to a Class C drug of supplying orpossession for supply, as opposed to selling or offering for sale or possessionfor sale (s 6(1)(e) and (f)).16 At [36].17 At [35].18 R v Terewi, above n 3.19 At [4].Category 2: encompasses small-scale cultivation of cannabis plants fora commercial purpose, ie with the object of deriving profit. The starting pointfor sentencing is generally between two and four years but where sales areinfrequent and of very limited extent a lower starting point may be justified.[12] We accept that this Court has previously recognised that Terewi "may requirereconsideration given changing social attitudes and the subsequent passage ofthe Sentencing Act in 2002".20 That would necessarily include revisiting the penaltiesassociated with offending within the Terewi categories. For present purposes,however, those categories apply as originally formulated.[13] The Judge assessed Mr Smith's culpability as being between Categories 1and 2. That categorisation is not criticised. The issue on appeal is the appropriatequantification of the starting point between those categories.[14] In terms of Mr Smith's culpability, the Judge was entitled to find that Mr Smithwas in possession of a "significant" quantity of cannabis and that some of it waspossessed for the purpose of sale. We do not consider that the Judge went so far as tosay that a significant quantity was possessed for that purpose. To the contrary,the Judge expressly noted that he was unable to determine how much was for personaluse and how much was for supply.[15] The Judge then observed that possessing a portion of the cannabis for personaluse warranted a reduction in the starting point. Taking that into account, he seta starting point of 21 months' imprisonment. This can be contrasted with R v Bryant,where this Court adopted a starting point of 30 months' imprisonment forthe cultivation of a similar quantity of cannabis in circumstances where there waslimited evidence of commerciality, but absent any mitigation for personal use.21The starting point for Mr Smith's offending plainly reflected his personal use beinga mitigating factor.20 R v Smyth [2017] NZCA 530 at [17].21 R v Bryant [2009] NZCA 287. See also McColl v Police HC Wellington CRI-2010-443-19,28 September 2010; Case v R [2010] NZCA 518; and White v R [2010] NZCA 565. In those casesstarting points for offenders involved in small scale commercial cannabis cultivation operationsranged between 30 and 36 months' imprisonment.[16] Comparison with other similar cases, including those cited by Mr Williams,reveals that the starting point was within the available range:(a) In Devereux v Police, one of the appellants was found in possession of110.74 grams of cannabis alongside scales and $3,120 in cash.22There could be "no question of the commerciality",23 albeit"low level".24 Mander J considered a starting point of 18 months'imprisonment appropriate.25(b) In Mowberry v R, police seized a total of 57 cannabis plants fromthe appellant's address.26 While the appellant purported that it was forpersonal use, Gendall J agreed with the sentencing judge thatthe potential yield of cannabis was too great to be only for personaluse.27 Taking into account the "basic" character of the operation andthe "very minor" degree of commerciality, Gendall J adopted a startingpoint of 18 months' imprisonment.28(c) In R v McGilp, the appellant was found in possession of 201 grams ofcannabis, 98 cannabis cuttings and 58 cannabis plants.29The appellant's brother's diary recorded sales netting about $3,320,although the Judge found that $1,600 worth of sales were"inconclusive".30 This Court did not disturb a starting point of"between 15 and 18 months' imprisonment".31(d) In R v Maats, one of the defendants jointly possessed 4.4 kilograms ofcannabis plant, including more than 1.6 kilograms of pure cannabishead, with her partner.32 Her involvement was more limited than that22 Devereux v Police [2017] NZHC 167 at [6].23 At [33].24 At [34].25 At [36].26 Mowberry v R [2012] NZHC 969 at [3].27 At [3], [6] and [9].28 At [10].29 R v McGilp (2006) 23 CRNZ 526 (CA) at [3].30 At [3].31 At [7] and [19].32 R v Maats HC Gisborne CRI-2010-016-1863, 14 December 2010 at [3] and [5]–[8].of her partner, in that she made fewer sales and used the proceeds tosupport her children (albeit in a "misguided" manner).33 Heath J set astarting point of 18 months' imprisonment.34(e) In R v Coe, the defendant was found in possession of 1.295 kilogramsof cannabis head and 198 grams of cannabis leaf.35 Despite thequantity, there was no real evidence of commercialism.36The defendant had admitted that he either gave it away or swapped itfor food.37 Brewer J considered that "in the absence of an intention tomake money out of the cannabis", a starting point of two years'imprisonment was appropriate.38(f) In R v Te Wake, police found 135 grams and two tinnies of cannabis,23 grams of cannabis leaf and paraphernalia associated with supply atthe defendant's address and van.39 He admitted to selling cannabis fourtimes in the three weeks before his arrest and when he was "shortof cash".40 Andrews J adopted a starting point of 27 months'imprisonment.41[17] The starting point imposed by the Judge is easily reconcilable withthe reasonably broad range of starting points revealed by these cases.Devereux, Mowberry and McGilp generally involved significantly lesser amounts ofcannabis than Mr Smith's offending and a broadly comparable low degree ofcommerciality. The greater quantity Mr Smith possessed is an indicator ofgreater culpability. Although the quantity of cannabis in Maats is similar to thepresent, the starting point was plainly influenced by the fact the appellant played alesser role in the offending vis-à-vis her partner. A starting point slightly higher thanthese cases was justified.33 At [24]–[25].34 At [26].35 R v Coe [2012] NZHC 3242 at [6].36 At [22].37 At [22].38 At [25].39 R v Te Wake HC Whangārei CRI-2010-088-1139, 7 October 2010 at [2].40 At [2].41 At [20].[18] Coe involved a similar degree of commerciality but a considerably lesserquantity of cannabis. Mr Smith's offending is broadly comparable. It is less seriousthan Te Wake, however, where the defendant made admissions he was sellingthe product.[19] It follows we consider that a starting point of 21 months' imprisonment waswithin the range available to the Judge. When viewed in conjunction withthe reasonably generous 30 per cent discount Mr Smith received for health andaddiction issues, it certainly cannot be said that the end sentence was manifestlyexcessive.[20] This ground of appeal must fail.Did the Judge err by imposing a sentence of home detention instead of a lessrestrictive sentence?[21] Mr Williams' second argument was that the Judge erred by imposing homedetention instead of a less restrictive sentence. He submitted that the principles ofdenunciation and deterrence were not properly engaged in this case. In his submissioncommunity detention or intensive supervision is the appropriate sentence.[22] In Palmer v R, this Court explained that:42 there is nothing in the Sentencing Act 2002 to suggest a presumption for oragainst commutation, either generally or for particular types of offence.The decision calls for the case by case exercise of judgment against thestatutory principles and purposes of sentencing. Those principles andpurposes sometimes point, as here, in opposing directions, meaning that thesentencing judge is called upon to assess whether home detention can respondadequately to the seriousness of the offending. As the Court explained in R vD (CA253/2008), it can be very difficult in a marginal case to articulatereasons for preferring one approach to another. In consequence, the marginof appreciation extended to sentencing judges is usually significant.[23] Here the Judge considered that the least restrictive sentence available was oneof home detention. In so determining, he took into account the need to hold Mr Smithaccountable, to deter him and others from similar offending and to denounce hisconduct.42 Palmer v R [2016] NZCA 541 at [19] (footnotes omitted).[24] We consider that a sentence of home detention was within the margin ofappreciation available to the Judge. Although Mr Smith cultivated cannabis forpersonal use, the quantity involved here makes personal use an implausibleexplanation for all that was found in his possession. In finding him guilty, the jurynecessarily determined that at least some of what he possessed was for sale.Deterring others from cultivating such significant quantities of cannabis withthe intention of selling it and denouncing that conduct are relevant factors inthe sentencing analysis. The restrictive nature of home detention gives effect to thoseprinciples. It also appropriately recognises Mr Smith's rehabilitative needs,particularly with the post-release conditions imposed.[25] It follows, in our view, that the Judge was not wrong to impose a sentence ofhome detention.[26] We also note in this context that Mr Smith will have served his sentence ofhome detention by the time this judgment is issued. Mr Williams accordingly acceptedthat this aspect of the appeal was essentially academic, save for Mr Smith being subjectto post-release conditions as part of his sentence of home detention.43Those conditions are to assist in Mr Smith's rehabilitation, and we see no reason tosubstitute a sentence which would have the effect of quashing them.[27] This ground of appeal is also dismissed.Result[28] The appeal against sentence is dismissed.Solicitor:Crown Solicitor, Christchurch for Respondent43 The conditions are to attend an assessment for alcohol and drug counselling as directed by aprobation officer, and to attend and complete any counselling, treatment or programme asrecommended by the assessment as directed by and to the satisfaction of a probation officer.See Sentencing notes, above n 2, at [24].