Anderson v The the King - [2022] NZCA 472

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA264/2022
[2022] NZCA 472

BETWEEN	MATTHEW IAN ANDERSON Appellant
AND	THE KING Respondent

Hearing:	20 September 2022
Court:	Gilbert, Brewer and Moore JJ
Counsel:	T J Jackson for Appellant D L Elsmore and C L Twisleton-Wykeham-Fiennes for Respondent
Judgment:	6 October 2022 at 9.30 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
B The sentence of three years and one month’s imprisonment on charge 1 is set aside and replaced with a sentence of 12 months’ imprisonment.
CThe concurrent sentences imposed in respect of charges 3 and 4 are confirmed.

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REASONS OF THE COURT

(Given by Gilbert J)

Mr Anderson was found guilty by a jury of three charges of cultivating cannabis. These charges arose out of his participation in the cultivation of cannabis at three addresses — King Street, Temuka (charge 1), Waitohi Temuka Road, Temuka (charge 3) and Te Moana Road, Geraldine (charge 4). He was acquitted on two charges of possession of cannabis for supply (charges 2 and 5). These verdicts appear to be explicable on the basis Mr Anderson satisfied the jury that he did not possess any portion of the cannabis for the purposes of sale.
Mr Anderson was sentenced by the trial judge, Judge M B T Turner, to three years and one month’s imprisonment on charge 1 and to concurrent sentences of four months on charge 3 and one month on charge 4.[1] The effective end sentence was constructed as follows:
Starting point[2]  three years and four months
Uplift for previous convictions[3]  three months
Discount for five-year delay while
on bail[4]   two months
Discount for personal background and
mental health issues[5]  four months
End sentence   three years and one month’s   imprisonment
[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 Street with an uplift of four months for the other two cultivations.
[3]At [74].
[4]At [83].
[5]At [96].
Mr Anderson appeals against his sentence contending it was manifestly excessive. His primary submission is that the starting point adopted of three years and four months’ imprisonment was excessive for three key reasons:
(a)He allegedly had a limited role in the King Street and Waitohi Temuka Road operations.
(b)The cannabis was cultivated solely for medicinal use, with very low levels of the psychoactive ingredient delta-9 tetrahydrocannabinol (THC).
(c)Mr Anderson’s participation was not for monetary gain, but to obtain high quality medicinal cannabis for the purposes of pain relief and to help manage his mental health issues.
Mr Anderson also contends that greater discounts for personal mitigating factors ought to have been allowed. He argues that a non-custodial sentence should have been imposed, as was recommended by the Department of Corrections in the pre‑sentence report and imposed on his two co-offenders.

Background

It is usual to commence by recounting the facts of the offending before turning to the offender’s personal circumstances.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anderson v The the King

Details

AGLC: Anderson v The the King [2022] NZCA 472
Case: [2022] NZCA 472
Decision Date: 6 October 2022 at 9.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Matthew Ian Anderson against his sentence for cultivating cannabis. Anderson had been found guilty of cultivating cannabis at three addresses and was acquitted on two charges of possession of cannabis for supply. Anderson appealed the sentence imposed by the trial judge, arguing that it was manifestly excessive and that greater discounts for personal mitigating factors should have been allowed. The appeal was allowed, and the sentence was reduced from three years and one month to 12 months' imprisonment. The Court found that the starting point for the sentence was excessive because the cultivations were solely for medicinal cannabis with very low levels of THC, Anderson's motivation was to ensure high-quality medicinal cannabis was produced for his own use, and he was not to share in the profits of the operation. The Court also found that the discount for the five-year delay while on bail was appropriate, but the uplift for previous convictions was excessive. The discount for personal background and mental health issues was considered to be in range.

The final orders were that the appeal against sentence was allowed, the sentence of three years and one month imprisonment on charge 1 was set aside and replaced with a sentence of 12 months' imprisonment, and the concurrent sentences imposed in respect of charges 3 and 4 were confirmed.

Orders