Bairds v Police - [2019] NZHC 3181

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-123

[2019] NZHC 3181

BETWEEN
LEIGHTON BAIRDS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 October 2019

Counsel:

R Ward for Appellant

J Whitcombe for Respondent

Judgment:

4 December 2019

JUDGMENT OF WHATA J

This judgment was delivered by me on 4 December 2019 at 4.00 pm.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Raymond Donnelly & Co, Christchurch

BAIRDS v POLICE [2019] NZHC 3181 [4 December 2019]

[1] Mr Bairds pleaded guilty to cultivation of cannabis and two charges of failing to appear. He was sentenced by Judge Neave to 13 months’ imprisonment.1 He appeals this sentence on the basis it was manifestly excessive.

Facts

[2] Police executed a search warrant at the appellant’s address on 8 October 2018. They located four cannabis plants, 14.6 g of cannabis in tinnies, 21.82 g of cannabis in small zip-lock bags, pre-cut pieces of tin foil, scales, a bong and a grinder. Mr Baird’s cellphone contained multiple messages discussing the sale and delivery of cannabis, for when orders were placed on a secret Facebook group. At the time of this offending, he was serving a sentence of home detention for dishonesty-related offences.

District Court decision

[3] Judge Neave categorised the offending as a reasonably significant cannabis operation involving commercial cultivation and stated that reasonable planning had gone into it. Against that he said the amounts found were not great and a significant amount was for Mr Baird’s own use. He noted that Mr Baird had family support, but also a continual inability to complete sentences and participate in opportunities afforded to him. He said that the offending fell into the lower end of band two in the tariff judgment R v Terewi.2 Band two generally involves starting points between two to four years. However, the Judge considered an appropriate starting point in this case was 18 months. To that he added six months for the charges of failing to appear and the fact the offending occurred while the appellant was subject to home detention.

[4] Judge Neave did not find the evidence regarding rehabilitation compelling but nevertheless allowed a credit of three months, and a further three months taking into account the fact Mr Bairds would have to serve his prison sentence away from Christchurch, which would make the sentence more difficult for the him. He also allowed a full 25 per cent discount for guilty plea, despite that plea not having been

1 Police v Bairds [2019] NZDC 16445.
2 R v Terewi [1999] 3 NZLR 62, (1999) 16 CRNZ 429 (CA) at [4].

entered at the first opportunity. This resulted in an end sentence of 13 and a half months’ imprisonment, which Judge Neave rounded down to 13 months.

[5] Finally, His Honour considered whether leave to apply for home detention should be granted. Given the appellant’s previous history of non-compliance and the fact that the present offending occurred while he was subject…

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 Bairds v Police

Details

AGLC: Bairds v Police [2019] NZHC 3181
Case: [2019] NZHC 3181
Decision Date: 4 December 2019

CaseChat Overview and Summary

The case of Bairds v Police involved an appeal against the sentence imposed on Leighton Bairds, who had pleaded guilty to cultivating cannabis and failing to appear in court. The appeal centred on the claim that the 13-month imprisonment sentence was manifestly excessive. The sentencing was conducted by Judge Neave in the District Court, who took into account the nature and extent of the cannabis operation, the appellant's own use of cannabis, and his previous history of non-compliance with court orders. The starting point for the sentence was set at 18 months, but this was reduced by three months to account for the relatively small amounts of cannabis involved, resulting in a starting point of 15 months. An additional six months was added for the appellant's failure to appear in court and for committing the offence while serving a sentence of home detention. After applying various discounts, including a 25% discount for a guilty plea, the final sentence was set at 13 months.

The High Court, presided over by Whata J, examined the appeal on the basis that it would only succeed if there was a material error in the sentencing decision. The court considered the arguments made by the appellant's counsel that the starting point was too high, the uplifts were excessive, and there was insufficient consideration of mitigating factors. The court also took into account the recent decision in Zhang v R, which had introduced modifications to sentencing guidelines for methamphetamine offences, and explored whether these modifications could be applied by analogy to cannabis cases. However, the court concluded that the sentence imposed was not manifestly excessive. The starting point was deemed appropriate, and while the uplifts and discounts applied were scrutinised, the court found that the final sentence was proportionate and in line with comparable cases.

In dismissing the appeal, the court emphasised that the sentence was not manifestly excessive and that the mitigating factors, while relevant, did not warrant a significantly reduced sentence. The court acknowledged the appellant's drug addiction but found insufficient evidence to conclude that the cannabis operation was solely driven by it. The sentence was deemed fair and just, reflecting the seriousness of the offence and the appellant's history of non-compliance with court orders.

Orders