Auton v Police - [2021] NZHC 1510

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-000060

[2021] NZHC 1510

BETWEEN
ANDREW MYERS AUTON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 22 June 2021

Appearances:

P N Allan for Appellant

S M H McManus for Respondent

Judgment:

23 June 2021

JUDGMENT OF GENDALL J

This judgment was delivered by me on 23 June 2021 at 3:30 p.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

AUTON v NEW ZEALAND POLICE [2021] NZHC 1510 [23 June 2021]

Introduction

[1] On 5 March 2021 Judge Brandts-Giesen in the District Court dismissed the appellant Mr Auton’s application for a discharge without conviction in respect of one charge of cultivating cannabis.

[2] Following this, Mr Auton was then convicted and sentenced to 12 months’ supervision and ordered to pay a $750 fine and court costs.1 He now appeals that conviction and sentence and says he should have been discharged without conviction.

Background

[3] On 28 May 2020 police executed a search warrant at the address Mr Auton was occupying. When police searched this address, they located a cannabis cultivation inside the house.

[4] There were grow tents in various locations throughout, including the front hallway, kitchen, bathroom and a cupboard by the toilet. Each grow tent was fully sealed with a temperature regulator and ventilation system. In total there were 32 cannabis plants and 46 seedlings located. Scattered throughout the house were a significant number of grow nutrients and supplies. Overall a non-trivial operation.

[5] In explanation Mr Auton stated his flatmate started growing cannabis in the house but he accepted half were his, however.

[6] At the hearing of the District Court proceedings, it seems from Judge Brandts- Giesen’s remarks that Mr Auton interrupted the lawyers and the Judge on various occasions to put forward his story that the plants belonged to the flatmate who had moved out and that he had to take care of them during lockdown. He said the former flatmate and associates returned to the flat to harass him to ensure he was still cultivating the plants. Mr Auton also said he never personally used the cannabis. This was all unsworn evidence given from the dock.

1 Misuse of Drugs Act 1975 s 9(1); maximum penalty 7 years’ imprisonment.

[7] His counsel, Mr Allan, submitted the basis on which Mr Auton had pleaded was that he accepted he had cultivated the plants but that he did so because he felt he had no choice. The prosecutor, Mr Burdes, referred to Mr Auton’s DVD interview and noted he was maintaining the grow for at least two months and had plenty of opportunity to withdraw.

[8] The Judge began his decision by recording the fact no application for discharge was filed in advance of the hearing. Mr Allan instead advanced this by way of an oral application. The Judge commented this was unsatisfactory, as, he said, were Mr Auton’s inappropriate interruptions to “rectify what he considers…

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.

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Details

Case: [2021] NZHC 1510
Decision Date: 23 June 2021

CaseChat Overview and Summary

The appeal in Auton v Police was heard by the High Court of New Zealand, Christchurch Registry, and involved Andrew Myers Auton, the appellant, challenging the decision of the District Court to convict him of cultivating cannabis and to sentence him to 12 months' supervision and a fine. Auton argued that he should have been discharged without conviction, and that the sentence was excessively harsh. The key legal issues were whether the consequences of conviction were out of proportion to the gravity of the offence, and whether the sentence was manifestly excessive.

The court found that while Auton's lack of previous convictions and the absence of harm or loss to another person reduced the gravity of the offence, the mitigating facts raised by Auton and his counsel, such as being subject to intimidation, did not sufficiently reduce the gravity to warrant a discharge without conviction. The court also found that the sentence of supervision, in addition to the fine, was not manifestly excessive as it was within the range available and justified by the purposes and principles of sentencing.

In conclusion, the High Court dismissed Auton's appeal against conviction and sentence. The court found that the District Court judge did not err in his assessments and that the sentence imposed was appropriate. Auton's appeal was dismissed, and the conviction and sentence stood as decided by the District Court.

Orders