ANDERSON v R [2022] NZCA 472

ANDERSON v R [2022] NZCA 472 [6 October 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA264/2022[2022] NZCA 472BETWEEN MATTHEW IAN ANDERSONAppellantAND THE KINGRespondentHearing: 20 September 2022Court: Gilbert, Brewer and Moore JJCounsel: T J Jackson for AppellantD L Elsmore and C L Twisleton-Wykeham-Fiennesfor RespondentJudgment: 6 October 2022 at 9.30 amJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of three years and one month's imprisonment on charge 1 is setaside and replaced with a sentence of 12 months' imprisonment.C The concurrent sentences imposed in respect of charges 3 and 4 areconfirmed.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Mr Anderson was found guilty by a jury of three charges of cultivatingcannabis. These charges arose out of his participation in the cultivation of cannabis atthree addresses — King Street, Temuka (charge 1), Waitohi Temuka Road, Temuka(charge 3) and Te Moana Road, Geraldine (charge 4). He was acquitted on two chargesof possession of cannabis for supply (charges 2 and 5). These verdicts appear to beexplicable on the basis Mr Anderson satisfied the jury that he did not possess anyportion of the cannabis for the purposes of sale.[2] Mr Anderson was sentenced by the trial judge, Judge M B T Turner, tothree years and one month's imprisonment on charge 1 and to concurrent sentences offour months on charge 3 and one month on charge 4.1 The effective end sentence wasconstructed as follows:Starting point2 three years and four monthsUplift for previous convictions3 three monthsDiscount for five-year delay whileon bail4 two monthsDiscount for personal background andmental health issues5 four monthsEnd sentence three years and one month'simprisonment[3] Mr Anderson appeals against his sentence contending it was manifestlyexcessive. His primary submission is that the starting point adopted of three years andfour months' imprisonment was excessive for three key reasons:(a) He allegedly had a limited role in the King Street and Waitohi TemukaRoad operations.(b) The cannabis was cultivated solely for medicinal use, with very lowlevels of the psychoactive ingredient delta-9 tetrahydrocannabinol(THC).1 R v Anderson [2022] NZDC 9322 [Sentencing judgment].2 At [101], compare with [73] which refers to three years and six months in respect of King Streetwith an uplift of four months for the other two cultivations.3 At [74].4 At [83].5 At [96].(c) Mr Anderson's participation was not for monetary gain, but to obtainhigh quality medicinal cannabis for the purposes of pain relief and tohelp manage his mental health issues.[4] Mr Anderson also contends that greater discounts for personal mitigatingfactors ought to have been allowed. He argues that a non-custodial sentence shouldhave been imposed, as was recommended by the Department of Corrections inthe pre-sentence report and imposed on his two co-offenders.Background[5] It is usual to commence by recounting the facts of the offending before turningto the offender's personal circumstances. This aligns with the accepted sentencingmethodology. However, in this case, it will be helpful to reverse the order. This willfacilitate a better understanding of the background to the offending, Mr Anderson'smotivation and role in it, and the personal benefits he sought to derive from it.[6] At the time of the offending, Mr Anderson was aged 35. He is now 40,separated from his partner, and has three children aged 21, eight and seven. He has agood relationship with his children but, for various reasons, has not been able to seethem since he was imprisoned at the end of the trial in February this year.[7] From a young age, Mr Anderson exhibited hyperactive, anti-social anddestructive behaviour which caused difficulties at home and at school. His parentsstruggled to cope. As a result, Mr Anderson spent time living in various social welfareplacements from when he was about 12. He says he suffered physical and other seriousabuse during this time and remains traumatised by these events.[8] Mr Anderson was diagnosed with attention deficit hyperactivity disorder andoppositional defiant disorder. He was prescribed carbamazepine to treat his mooddisorders. He says he did not like this drug because of its side effects.He experimented with cannabis and found this calmed his mind and enabled himto relax. In the years since, he came to rely on cannabis for this purpose, describing itas a miracle drug for him, superior to other prescription drugs he has received.He reports that his use of cannabis also affords pain relief from an enduring shoulderinjury he sustained in a machinery accident.[9] Mr Anderson says he had negative experiences obtaining cannabis throughgangs and the black market, including being supplied with cannabis laced with othersubstances and being "ripped off". He says his desire to secure a safe medical-gradeproduct is what motivated him to grow his own cannabis. This led to his convictionsin 2009 for cultivating cannabis and possessing cannabis for supply for which he wassentenced to 12 months' home detention.Index offendingThe cultivations[10] The Judge described the three cultivations as follows:The Cultivations[6] The first, and by far the most serious, offence was the indoorcultivation at King Street discovered by police in February 2017.On executing a search warrant on 22 February 2017 at the residential propertyin King Street, police found cannabis growing in two outdoor sheds.Inside the house, which prior to residential use had been a bank, a secret doorhad been constructed in the pantry, opening into the front of the building.Inside was a highly sophisticated cannabis growing operation. Five roomshad been constructed using plywood and timber, a nursery had beenestablished and each of the rooms contained plants at different stages ofgrowth.[7] There was a sophisticated heating, lighting, water and air filteringsystem, the power for which had been diverted so as not to run through theelectricity meter for the house. There were several whiteboards on which aschedule and other data for growing the cannabis were set out, and othervarious pieces of equipment, including a trimming machine to remove leavesfrom stalk.[8] In total 891 plants were found. Over 2.7 kilograms of cannabis wasfound packaged at the house in different quantities, ounce and pound bags.This formed the basis of the first possession for sale charge whichMr Anderson was found not guilty of.[9] Experienced police officers giving evidence at trial stated this wasamongst the most sophisticated indoor growing operation they had seen.It was estimated that four grows were possible per year, giving a potentialyield of around $800,000 per annum based on 2017 street prices, dependenton how the cannabis was packaged for sale. Police estimated that it wouldhave cost tens of thousands of dollars, if not hundreds of thousands of dollarsto set up the operation.Waitohi [Temuka] Road[10] The same day police executed a search warrant at a residential addressat Waitohi [Temuka] Road, Temuka occupied by Mr Richardson's mother.In a container on the property police found another indoor growing operation,a miniature version of what had been found at King Street. Power had beendiverted to the container to run the heating, extraction and watering systems.A total of 32 plants were found.Te Moana Road[11] On 10 May 2017, police executed a search warrant at Mr Anderson'shome address in Te Moana Road, Geraldine. In a container on the propertya cannabis growing operation involving 67 seedlings and several matureplants were discovered. In a freezer at the address police found just under1.5 kilograms of cannabis. This was the subject of a second possession forsale charge brought against Mr Anderson of which he was found not guilty.[11] The King Street property belonged to one of Mr Anderson's co-offenders,Mr Snow. The Judge found that the genesis of the operation at that property wasthe common interest Mr Anderson shared with Mr Snow in cannabis, its perceivedhealth benefits and its likely legalisation.6 Mr Snow had limited knowledge ofthe processes involved in cultivating cannabis whereas Mr Anderson was highlyknowledgeable and skilled in the cultivation of high-quality cannabis.7 Mr Snow wasto be an absent landlord who would have no direct involvement in the operation butwould receive a share of the profits.8 Another co-offender, Mr Richardson, was invitedto oversee the operation and provide a level of security in return for being able to liveat the property rent-free, receive some of the cannabis and a share of the profits.9The Judge described Mr Richardson's role as "very much a hands-on one".10 He wasat the property every night between 8 pm and 8 am to ensure the automated watering,filtering and heating equipment was operating properly and to provide a measure ofsecurity.11 He also undertook the practical tasks such as trimming the plants.126 At [27].7 At [29]–[30].8 At [31].9 At [32]–[33].10 At [38].11 At [38].12 At [38].Mr Anderson's roleKing Street[12] The Judge described Mr Anderson's role in the King Street cultivation asfollows:[51] Mr Anderson was involved in the cultivation from the beginning,he had the requisite specialised knowledge, skill and experience required fora cultivation on this scale. I am satisfied he was involved in the recruiting ofMr Richardson who was to take sole responsibility if the cannabis was found,on the basis he would be looked after. Mr Anderson obtained significantmaterials to construct the indoor growing operation and to set it up, he assistedin the construction, as Mr Richardson described, and he provided the detailand sophisticated growing instructions, and was at the address duringthe evening when the system was operating, no doubt to check on it and, ifnecessary, to provide advice. He was the person the others turned to whenproblems arose, both before and after the discovery of the cannabis by police.[52] Each of those three men played a role, Mr Richardson describedhimself as the overseer, providing security and being present on a day-to-daybasis, but he also had a hands-on role in the cultivation. Mr Snow wasthe owner of the house - he provided the environment where the cultivationcould occur and, through his business, various supplies which were needed forthe grow. Mr Anderson brought his knowledge, advice and expertise, inaddition to providing physical assistance in obtaining materials andequipment.Waitohi Temuka Road[13] Mr Anderson's role in the Waitohi Temuka Road cultivation was found to be"more limited".13 He provided Mr Richardson with the container used in the growingoperation and he helped with a significant electrical problem that arose. Mr Andersonexplained that "he did not want his friend to get electrocuted".14 The Judge stated thatthis highlighted Mr Anderson's skills and Mr Richardson's deficiencies. The Judgeaccepted there was no suggestion Mr Anderson was in any other way involved inthe small commercial cannabis cultivation at this address.1513 At [54].14 At [54].15 At [55]–[56].Te Moana Road[14] It was not disputed that Mr Anderson was solely responsible for this smallnon-commercial and relatively unsophisticated cultivation at his own address.16Was the starting point too high?[15] The Judge placed the offending in respect of King Street in category 3 ofthis Court's guideline judgment in R v Terewi, where starting points in excess offour years' imprisonment are generally warranted.17 The Judge consideredthe offending in relation to Waitohi Temuka Road fell within category 2 and the smallcultivation at Te Moana Road in category 1.18[16] Messrs Richardson and Snow pleaded guilty and received community-basedsentences that took account of their assistance in giving evidence for the Crown atMr Anderson's trial.19 Judge Maze adopted a starting point of four years'imprisonment for Mr Richardson and three years and six months for Mr Snow.20[17] Judge Turner considered Mr Anderson's involvement was greater than that ofMr Snow and comparable to Mr Richardson.21 He therefore set a starting point ofthree years and six months' imprisonment for the King Street cultivation and appliedan uplift of four months for the other two cultivations yielding an adjusted startingpoint of three years and 10 months' imprisonment.22 However, the starting pointthe Judge adopted when calculating the sentence was three years and four months'imprisonment.23[18] The essence of Mr Jackson's submissions for Mr Anderson is that the startingpoint was too high, particularly because he contends Mr Anderson's role inthe King Street operation was comparatively limited (and at Waitohi Temuka Road),16 At [57].17 At [58], applying R v Terewi [1999] 3 NZLR 62 (CA).18 At [61]–[62].19 R v Richardson [2021] NZDC 756 at [16] and [21]; and R v Snow [2021] NZDC 6982 at [14] and[17]–[18].20 R v Richardson, above n 19, at [15]; and R v Snow, above n 19, at [14].21 Sentencing judgement, above n 1, at [72].22 At [73].23 At [101].the cultivations all involved medicinal cannabis with very low levels of THC, andMr Anderson was not seeking monetary gain and was not to participate in the profits.He argues that this Court's 1999 guideline judgment in R v Terewi is outdated andneeds to be applied with caution given subsequent changes in societal attitudesconcerning cannabis.[19] Ms Elsmore, for the Crown, submits that the Judge made no error in assessingMr Anderson's role and overall culpability. She submits that appropriate parity wasreflected in the starting point adopted for Mr Anderson compared with the startingpoints chosen for his co-offenders. She says that any reform of the Misuse of DrugsAct 1975 in relation to cannabis is for Parliament and the question of whether Terewishould be re-visited is a matter for the permanent Court of Appeal to consider.[20] As has previously been stated by this Court, it may be that Terewi is somewhatoutdated and should be reconsidered.24 However, like all guideline judgments, itshould not be applied slavishly or in a mechanistic way.25 Ultimately, the sentencingjudge is required to consider the objectives of sentencing and have regard tothe matters set out in the Sentencing Act 2002 to arrive at a sentence that is appropriatein all the circumstances.[21] We have been persuaded that the starting point adopted was excessive havingregard to three factors that were emphasised at the hearing. First, as appears to havebeen accepted by the Judge, the cultivations were solely for medicinal-grade cannabiswith very low THC content. Secondly, Mr Anderson's motivation was to ensure highquality medicinal-grade cannabis was produced and to receive a supply of this productfor his own use. Thirdly, he did not stand to share in the profits of the operation.For these three reasons, we do not consider Mr Anderson's offending falls neatly intoeither of categories 2 or 3 of Terewi. The examples given in the schedule attached tothat guideline judgment all involved offending for financial gain.26 Further, thecommerciality of the particular operation required consideration, including whether24 R v Smyth [2017] NZCA 530 at [17].25 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [48].26 R v Terewi, above n 17, at [2].the plants had "higher narcotic levels" and contained "significantly increased levels of[THC]".27[22] Mr Anderson's unchallenged evidence was that no matter how muchmedicinal-grade cannabis is consumed, it would be "very, very hard" for the user toget "high". Self-evidently, the social harm caused by the consumption ofmedicinal-grade cannabis is considerably lower than that caused by cannabis with highlevels of THC which may produce acute intoxication and has been linked to multipleundesirable effects such as paranoia, memory impairment, increased risk of psychoticillness and addiction.28 The passing of the Misuse of Drugs (Medicinal Cannabis)Regulations 2019, for the purpose of enabling "the research, manufacture, and supplyof medicinal cannabis products and related ingredients, and the cultivation of cannabisfor the products and ingredients" and amendments to the Misuse of Drugs Act providesfurther evidence of this.29 While we were not referred to any New Zealand authoritiesthat grapple with the sentencing implications of this significant distinction, someassistance can be derived from considering the approach taken in other comparablejurisdictions. For example, the British Colombia Court of Appeal observed inR v Koenders that production of cannabis solely for medical use, including by others,will generally attract a non-custodial sentence.30[23] R v Simpson, a decision of the Nova Scotia Supreme Court, involved a casehaving similarities to the present.31 Mr Simpson was convicted of possession ofcannabis, possession for the purposes of supply, and production.32 He had cultivatedapproximately 1,100 plants (there were just under 1,000 plants in the present case) ina commercial-style operation but there was no evidence that he was acting for profit.As here, the product was entirely for medicinal use.33 Cacchione J consideredthe usual principles of sentencing were "somewhat problematic" given Mr Simpson's27 At [5].28 Sarah D Pennypacker, Katharine Cunnane, Mary Catherine Cash and E Alfonso Romero-Sandoval"Potency and Therapeutic THC and CBD Ratios: US Cannabis Markets Overshoot" (2022) 13Frontiers in Pharmacology 1 at 2.29 Misuse of Drugs (Medicinal Cannabis) Regulations 2019, reg 3; and Misuse of Drugs Act 1975,s 2A.30 R v Koenders 2007 BCCA 378, [2007] BCJ No 1543 at [22].31 R v Simpson 2008 NSSC 57, [2008] NSJ No 70.32 At [1].33 At [7].motivation for committing these offences.34 The Judge reasoned that it would be"difficult to denounce unlawful conduct which has as its sole purpose the alleviationof pain and suffering".35 The same applied to deterrence. The Judge did not regardMr Simpson as a danger to society. There was therefore no need for him to be"segregated from the rest of society for the protection of society".36 The Judgeconsidered the case was exceptional and sentenced Mr Simpson to one day in jail,effectively time served for his day in Court, and imposed a fine of $2,000.37[24] Given Mr Anderson's motivation was to secure the cultivation of high qualitymedicinal cannabis including for his own use, he was not involved in the supply ofthe product and he was not to share in the profits, we do not consider a starting pointany higher than 18 months' imprisonment could possibly be justified.Were the adjustments for personal factors appropriate?Uplift for previous convictions[25] We are obliged to consider the sentence that ought to be substituted havingbeen persuaded that the starting point was manifestly excessive. The Judge appliedan uplift of three months' imprisonment for Mr Anderson's convictions in 2009 forcultivation of cannabis and possession of cannabis for supply.38 Given the historicalnature of these previous convictions and the fact Mr Anderson had served acommunity-based sentence of home detention for this offending, we consider an upliftof three months' imprisonment involved considerable further punishment for thisoffending. We do not consider an uplift was required in all the circumstances.Discount for five-year delay while on bail[26] A search warrant was executed at the King Street address on 22 February 2017followed by a warrantless search at Waitohi Temuka Road. A search warrant wasexecuted at Mr Anderson's address at Te Moana Road on 10 May 2017 and he wasarrested and charged at that time. He was remanded on bail at his first court34 At [22].35 At [22].36 At [22].37 At [29].38 Sentencing judgment, above n 1, at [74].appearance on 12 May 2017. Mr Anderson was not brought to trial until nearlyfive years later, in February 2022. He was remanded in custody to await sentencingat the conclusion of the trial.[27] The Judge allowed a discount of two months for the period Mr Anderson spenton bail, observing that the bail conditions could not have been less restrictive.39While the bail conditions may not have been particularly restrictive, we recognise thatfive years is a long time for Mr Anderson to have these charges hanging over him.A discount for this factor, reflecting the right to be tried without undue delay, is moreappropriately calculated by reference to the period of undue delay rather than asa percentage of the starting point.40 However, we consider the effective discount givenby the Judge in this case was appropriate taking account of the reasons for that delay— Covid-related delays, counsel unavailability, pre-trial applications by Mr Andersonand his co-defendants which were tested on appeal pre-trial, and that an earlier trialhad to be abandoned after three days because a witness recognised a juror.41Discount for personal background and mental health issues[28] We will not interfere with the discount of four months the Judge allowed forMr Anderson's personal background and mental health issues despite the adjustedstarting point. We consider a discount at that level is in range in all the circumstances.Conclusion[29] These adjustments result in an end sentence of 12 months' imprisonmentcalculated as follows:Starting point 18 monthsDiscount for five-year delay whileon bail two monthsDiscount for personal background andmental health issues four monthsEnd sentence 12 months' imprisonment39 At [83].40 Bublitz v R [2019] NZCA 364 at [164].41 Sentencing judgment, above n 1, at [75]–[78].[30] Mr Anderson has been in custody since February 2022. We understandthe effect of this substituted sentence will be his immediate release for time served.It is therefore not necessary to consider whether a sentence of home detention oughtto have been imposed.Result[31] The appeal against sentence is allowed.[32] The sentence of three years and one month imprisonment on charge 1 is setaside and replaced with a sentence of 12 months' imprisonment.[33] The concurrent sentences imposed in respect of charges 3 and 4 are confirmed.Solicitors:JMJ Lawyers Ltd, Timaru for AppellantCrown Solicitor, Christchurch for Respondent