IN THE COURT OF APPEAL OF NEW ZEALAND
CA781/2012
[2013] NZCA 387
BETWEEN
WILLIAM DUFFIELD MCKEE
Appellant
AND
THE QUEEN
Respondent
Hearing:
24 July 2013
Court:
White, Goddard and Simon France JJ
Counsel:
Appellant in person
M H Cooke for Respondent
Judgment:
22 August 2013 at 10.30 am
JUDGMENT OF THE COURT
A
The appeal against conviction is dismissed.
B
The appeal against sentence is allowed. The sentence of 12 months’
home detention is quashed and a sentence of six months’ home detention
substituted.
C
The sentence of home detention is to be served at the address identified
in the report prepared for the District Court by the Department of
Corrections in October 2012.
D
The standard conditions for home detention under s 80C(2) of the
Sentencing Act 2002 are to apply.
E
The sentence is to commence at 2 pm on Friday 30 August 2013.
MCKEE v R CA781/2012 [2013] NZCA 387 [22 August 2013]
F
The appellant must be at the address from the time of the
commencement of the sentence and remain there pending the arrival of a
probation officer and an officer of the company responsible for
connecting the electronic monitoring system.
____________________________________________________________________
REASONS OF THE COURT
(Given by Goddard J)
[1]
The appellant was convicted by a jury of four charges of selling cannabis and
one charge of cultivating cannabis.
He represented himself at trial with the
assistance of an amicus. He was sentenced to 12 months’ home detention.1 He now
appeals against both conviction and sentence.
[2]
The appellant was again assisted by a McKenzie friend in this Court. The
friend, Ms Purchas, although a qualified lawyer, does not currently hold a practising
certificate, but, in the particular circumstances of this case, was given leave to
address the Court on certain aspects of the appellant’s appeal.
[3]
There are five grounds of appeal against conviction. In relation to the appeal
against sentence, the grounds are that the sentence was manifestly excessive or
wrong in principle.
Background facts
[4]
The appellant is an activist who promotes the medical use of cannabis
through a website styled GreenCross. GreenCross is the name of an organisation
which seeks a change in the law to make raw cannabis available for medicinal
purposes.
[5]
Activities on the website, relating to the sale and distribution of cannabis
plant, attracted the attention of police and an investigation was commenced into
those activities.
1
R v McKee DC Palmerston North CRI-2011-031-1025, 30 October 2012.
[6]
The investigation involved the deployment of a police officer in a covert role,
using an assumed name.
[7]
In February 2010 the officer telephoned the contact number on the
GreenCross website and spoke with the appellant. The officer explained he suffered
from migraines and that doctors had been unable to help him.
The appellant
recommended hemp oil, which may be legally sold in New Zealand, to assist with
the pain. Subsequently the officer purchased $25 of hemp oil through the appellant.
[8]
Over the next four months there was sporadic communication between the
officer and the appellant, mainly by email, during which further purchases of hemp
oil were made and during which the officer also expressed enthusiasm for purchasing
cannabis, referred to in their communications by the appellant as “raw medicine”.
The appellant told the officer that only GreenCross card holders could obtain
cannabis and encouraged the officer to join the organisation, and become a full
member with a medical exemption.
[9]
Over the course of a year the officer purchased cannabis from the appellant
on four occasions, in the following amounts and at the following prices:
(a)
23 June 2010 – two full matchboxes of cannabis plant material – $40;
(b)
7 July 2010 – two matchboxes of cannabis (around 5 grams) – $40;
(c)
9 July 2010 – courier parcel containing approximately 11 grams of
cannabis – $100; and
(d)
25 May 2011 – approximately 17 grams of cannabis plant material
and some hemp oil – $125.
[10]
On 8 July 2011 police executed a search warrant of the appellant’s home,
where they located 66 cannabis plants under a trap door in a bedroom. The plants
ranged in size from seedlings to mature budding plants.
The appellant
[11]
The appellant is a 58 year old man who has held firm views on the medicinal
benefits of cannabis for a number of years. While in his mid twenties he underwent
a high amputation of one leg. This was the result of injuries sustained in a hit and
run accident shortly before his 21st birthday. Ultimately his leg, which was badly
crushed, was unable to be saved.
Prior to amputation the appellant suffered
considerable pain and following amputation has continued to suffer from ongoing
spasms and pain. He says he found self-medication with cannabis brought him the
most effective relief.
[12]
The appellant did not give evidence at his trial but made a reasonably lengthy
closing address to the jury, during which he canvassed his personal history and the
purpose and policy of GreenCross. Also, his efforts to change the laws relating to
cannabis use in New Zealand, submitting that cannabis research indicates that many
serious illnesses can be cured or helped by use of small amounts of cannabis oil,
relatively inexpensively and with minimum side effects. He also emphasised that the
undercover officer had approached him to obtain cannabis.
He referred to the
amount of effort he had put into running GreenCross in order to assist others and to
the consequences of a guilty verdict, in terms of maximum punishment and likely
future difficulties with obtaining visas to travel overseas.
[13]
Many of the matters the appellant adverted to in closing, and in particular his
references to penalty and other consequences, were not relevant to issues of guilt or
innocence and could have caused a mistrial had they been referred to by counsel.
Appeal against conviction
[14]
The first three grounds of appeal were related.
They concerned first a
submission that, pursuant to the New Zealand Bill of Rights Act 1990 (BORA), the
Magna Carta and unspecified conventions, the courts can “overrule, repeal, revoke,
amend or not apply provisions of the law” which are inconsistent with BORA and
which contravene “Justice or Right” under cl 39 of the Magna Carta 1215.
[15]
The second and related issue was said to concern “Jury Nullification”, a
doctrine contended to be in effect in New Zealand. What it seems the appellant
meant here is that on occasion a jury might return a verdict that appears to be against
the weight of evidence, usually referred to as a perverse verdict. There is no issue
that, in some cases, a jury properly directed may appear to return such a verdict. As
reasons are not required for a jury verdict, the basis for such a verdict is unknown.
[16]
The third related ground of appeal was that the trial Judge, Judge Morris, had
misdirected the jury in a number of respects by effectively telling them to ignore
their consciences. A number of examples from the Judge’s summing up were cited
in support of this contention. However, it is clear the Judge directed the jury on
standard lines to reach their verdicts according to the evidence and to put aside
feelings of prejudice or sympathy. In the context of the defence, as run at trial, the
Judge also advised the jury that the trial situation was not the forum in which to
lobby for legislative change.
[17]
The appellant takes the view that the directions given to the jury in these
regards were a clear indicator by the Judge that he should be found guilty. Further,
that the Judge contravened BORA and the Magna Carta, as well as the “doctrine of
Jury Nullification”, by not directing the jury to consider all of the evidence,
including the appellant’s views on cannabis use and the need for legislative change,
as expressed in his closing address.
[18]
The first three grounds of appeal can be disposed of in short order.
[19]
The appellant’s argument, whilst undoubtedly sincere, is misconceived in
relation to the role of the Courts in upholding and applying the law. The directions
given by the trial Judge were copy-book, in terms of principle and approach and
provided the correct guidance for the jury. The trial was not concerned with a
conscience decision about laws enacted by a duly elected Parliament. The verdicts
returned were in accordance with the evidence, and the evidence satisfied the
required standard of proof. The verdicts are not open to challenge.
[20]
These three grounds of appeal fail.
[21]
The fourth ground of appeal concerned the application of the words “lawfully
supplied” in s 8(2)(c) Misuse of Drugs Act 1975, which provides:
Any person for whom a controlled drug is supplied by a medical practitioner
or dentist, or prescribed by a medical practitioner or dentist and lawfully
supplied, may administer that drug to himself in accordance with the advice
of the medical practitioner or dentist who supplied or prescribed it:
[22]
The point made here was that persons who have a medical endorsement for
an exemption under s 8(2)(c) and are thus entitled to be prescribed cannabis
preparation for medicinal purposes, do not however have access to a lawful retail
outlet in New Zealand. Therefore, while a person with an exemption can obtain
Sativex on prescription from a pharmacy, the raw drug cannot be obtained.2 The
appellant argued that the exemption recognised under s 8(2)(c) must therefore mean
that persons who are legitimately able to be prescribed cannabis for medical
purposes should be able to grow the plant for this purpose, given the absence of
lawful retail suppliers. Thus, as an exempted person, he should not have been
convicted of cultivation for personal use.
[23]
A related argument was that, given the absence of readily available retail
cannabis, a GreenCross card holder, who is exempt from prosecution under the Act,
ought to be able to lawfully supply another exempted GreenCross card holder with
cannabis grown for medicinal purposes. In this regard, the appellant was suggesting
that, as a GreenCross card holder, he should have been able to supply the officer, if
the officer were another GreenCross card holder, with cannabis.
[24]
We do not accept that the text and purpose of s 8(2)(c) support either of these
arguments. The text of the provision is clear. It simply permits a person who is
supplied or prescribed a controlled drug to administer that drug “to himself [or
herself]” in accordance with the advice received. The purpose of the provision is to
create an exception to the prohibition on the supply and prescription of such drugs.3
2
3
Subject to the limited exemptions in the Medicines Act 1981, which control access to
medicines that have not been assessed or approved as a medicine under s 20 of the Medicines
Act.
Law Commission Controlling and Regulating Drugs – A Review of the Misuse of Drugs Act
1975 (NZLC R122, 2011) at [10.5], [10.14], [10.118] and [10.124]–[10.125]. We note that
as a Class C1 drug, the Minister of Health’s approval is required before any prescriber can
provide, or any patient can use raw cannabis: Misuse of Drugs Regulations 1977, reg 22.
The exception created by the provision does not extend to permitting the cultivation
of cannabis for personal use by the person to whom the controlled drug has been
supplied or prescribed. Nor does it permit that person to supply the drug to any other
person. For the Court to interpret the provision in any other way would be to give it
an extended meaning not envisaged by the legislature.
[25]
The fifth ground of appeal concerned an allegation that this was a case of
entrapment by the undercover officer. In this regard the appellant pointed to the
period of time that elapsed before he acceded to the officer’s numerous requests to
provide him with “raw medicine”; that he had encouraged the officer to become a
GreenCross card holder with a medical exemption under s 8(2)(c) Misuse of Drugs
Act; and had declined to supply the officer with cannabis for recreational use. The
appellant said the undercover officer had pressured him with accounts of severe
headaches leading him to feel deeply sympathetic and seriously concerned about the
officer’s health. The supply of small amounts of cannabis from his personal stock on
four occasions and over a period of a year, at essentially half-price and only after
much “wheedling” from the officer, should have been regarded as entrapment.
[26]
This Court recently discussed the principles of entrapment in Stevenson v R
and in doing so referred to the decision of the House of Lords in R v Looseley:
Attorney-General’s Reference (No 3 of 2000).4
In R v Looseley Lord Nicholls
expressed the view that:5
... a useful guide is to consider whether the police did no more than present
the defendant with an unexceptional opportunity to commit a crime... The
yardstick for the purpose of this test is, in general, whether the police
conduct preceding the commission of the offence was no more than might
have been expected from others in the circumstances. Police conduct of this
nature is not to be regarded as inciting or instigating crime, or luring a
person into committing a crime.
[27]
The same approach is required by s 30 of the Evidence Act. The focus is on
the fairness and propriety of police conduct in obtaining evidence.
4
5
Stevenson v R [2012] NZCA 189, (2012) 25 CRNZ 755; R v Looseley: Attorney-General’s
Reference (No 3 of 2000) [2001] UKHL 53, [2001] 1 WLR 2060.
At [23].
[28]
The first difficulty with this ground of appeal is that the issue of entrapment
was not raised until the appellant referred to it in his closing address to the jury. As
the Judge correctly observed, entrapment is not a defence but a ground for excluding
evidence, if properly made out. This ground of appeal must therefore fail on that
basis alone. However we observe that the facts, at least as far as are known, would
not in any event have supported a finding of entrapment, based on the relevant
principles and whether there was improper conduct on the part of police.
[29]
The evidence established that the investigation was commenced as a result of
information police received about the GreenCross organisation, raising concern over
its activities. The easy accessibility of the website and activity on it raised a
legitimate cause for further inquiry and thus led to contact with the appellant through
his details on the website. Whilst the facts differ, the threshold for inquiry in the
appellant’s case is similar to that which pertained in Wales v R.6
[30]
On application of Stevenson principles, it cannot be said that the undercover
officer went further than creating an unexceptional opportunity for the appellant to
offend. His actions did not amount to incitement to commit a crime.
[31]
This ground of appeal also fails.
Appeal against sentence
[32]
Turning to the issue of sentence, we are satisfied there is scope for an
adjustment to be made in the appellant’s case.
[33]
Although there were four separate sales, they were for relatively small
amounts and on what is accepted by the Crown as a not-for-profit basis. There was
an elapse of some four months before the appellant acceded to the undercover
officer’s requests, and he was hesitant about supplying to a person who was not yet a
fully paid up GreenCross card holder with a medical exemption under s 8(2)(c) of
the Misuse of Drugs Act. We accept also that the appellant was motivated on a
humanitarian basis, although that cannot excuse his actions in law.
6
Wales v R [2013] NZCA 233 at [29].
[34]
The cannabis cultivation was not a major operation although, as Judge Morris
observed, it could not be dismissed as insignificant.
The appellant’s overall
culpability was rightly assessed as coming at the very low end of Category 2 in R v
Terewi.7
[35]
The Judge took into account that the appellant was not driven by commercial
gain and was generally motivated to assist others, combined with furthering the goal
of attempting to decriminalise cannabis. She noted, however, that the latter is a
complex issue to be dealt with at a political level.
[36]
Taking into account the low level of commerciality, set against the fact this
was planned, persistent and publicised law breaking on the part of the appellant, the
Judge identified a starting point of two years and five months’ imprisonment.
[37]
After allowing various discounts for personal and other factors and in
recognition of the appellant’s restriction to a wheel chair and the impact a term of
imprisonment would have on him, the Judge considered that home detention was
available. Given the appellant’s significant disability, the Judge concluded that
12 months’ home detention would be an adequate deterrent.
[38]
A sentence of home detention cannot be described as wrong in principle, and
anything less would have been insufficient to mark the seriousness with which such
offending is regarded.
[39]
However, having carefully assessed all of the features of this unusual case,
we are satisfied that the sentence of home detention can appropriately be reduced to
a period of six months.
Result
[40]
7
The appeal against conviction is dismissed.
R v Terewi [1999] 3 NZLR 62 (CA).
[41]
The appeal against sentence is allowed. The sentence of 12 months’ home
detention is quashed and a sentence of six months’ home detention substituted.
[42]
The sentence of home detention is to be served at the address identified in the
report prepared for the District Court by the Department of Corrections in
October 2012.
[43]
The standard conditions for home detention under s 80C(2) of the Sentencing
Act are to apply.
[44]
The sentence is to commence at 2 pm on Friday 30 August 2013.
[45]
The appellant must be at the address from the time of the commencement of
the sentence and remain there pending the arrival of a probation officer and an
officer of the company responsible for connecting the electronic monitoring system.
Solicitors:
Crown Law Office, Wellington for Respondent