Supreme Court dismisses cannabis grower's appeal

The Supreme Court has dismissed an appeal by a jailed cannabis grower who argued he was being illegally held at Upper Hutt's Rimutaka Prison.

Kenneth Christopher Morgan is serving a three year sentence after his conviction for cultivating cannabis.

Between the time he was arrested and charged in September 2001 and the time he was convicted and sentenced in November 2002, new laws on parole and release eligibility were introduced.

Under the old law, Morgan would have been entitled to conditional release after two years -- in November last year.

However, the Parole Act now requires the serving of the full term in prison unless the Parole Board decides to order release, which it has not done in Morgan's case.

Morgan appealed unsuccessfully to the Court of Appeal in March.

Today's decision by the Supreme Court means he could remain in prison until November this year.

He had argued the current Sentencing Act gave him the right to the "lesser penalty" in place at the time of the offence.

However, the Supreme Court said in a 4-1 majority judgment that the "penalty" in the Act referred to the maximum penalty of imprisonment that could be imposed for an actual offence.

The maximum for cannabis cultivation was seven years and this had not changed between Morgan's arrest and sentencing.

Morgan's right had not therefore been infringed. His appeal case applied to parole and release, the court said.

In the dissenting view, Chief Justice Dame Sian Elias said she would grant leave and allow Morgan's appeal, as she considered release entitlements were integral to the penalty imposed on an offender.

"I am of the view that it is wrong to characterise release entitlements as matters of 'administration' rather than 'penalty'," Dame Sian said.

- NZPA