Batchelor v The Queen - [2018] NZHC 3279

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2018-442-13

CRI-2018-442-14 [2018] NZHC 3279

BETWEEN
JOHN CHARLES BATCHELOR

Appellant

AND

THE QUEEN

NEW ZEALAND POLICE

Respondents

Hearing: 12 December 2018

Appearances:

A J D Bamford for the Appellant

K L Kensington for the Respondent

Judgment:

12 December 2018

JUDGMENT OF COOKE J

[1] Mr Batchelor pleaded guilty to one charge of cultivating cannabis,1 two charges of possessing of cannabis,2 two charges of possessing utensils for consuming cannabis3 and one charge of unlawfully possessing a firearm.4 On 21 August 2018, he was sentenced to 14 months’ imprisonment by Judge Ruth in the District Court at Nelson.5 Mr Batchelor appeals against his sentence on the grounds that it was manifestly excessive.

[2] At the conclusion of the hearing I indicated that the appeal was allowed and a sentence of four and a half months’ imprisonment would be substituted. These are the reasons for that decision.

1      Misuse of Drugs Act 1975, s 9; maximum penalty seven years’ imprisonment.
2      Section 7(1)(a) and (2)(b); maximum penalty three months’ imprisonment.
3      Section 13(1)(a) and (3); maximum penalty one year’s imprisonment.
4      Arms Act 1983, s 45(1); maximum penalty four years’ imprisonment.
5      R v Batchelor [2018] NZDC 17466.

BATCHELOR v R [2018] NZHC 3279 [12 December 2018]

Summary of offending

[3] In the early morning on 26 March 2018, Mr Batchelor was in a Toyota Hilux near Nelson when it crashed into a tree after losing control on a left-hand bend. The vehicle suffered extensive frontal damage and caused considerable damage to a traffic island, a speed sign and the tree. The vehicle was being driven by another person. They had with them a .308 calibre rifle, fitted with a pistol grip, suppressor and a tripod. Mr Batchelor does not have a firearms licence, but the driver did.

[4] Upon realising police were in the area, Mr Batchelor left the vehicle with the rifle, hiding it in nearby bushes. Police dogs were deployed and located both Mr Batchelor and the rifle. When he was arrested, Mr Batchelor was also found to be in possession of one unused .308 round and one used .308 round. He was also in possession of approximately five grams of cannabis head.

[5] Mr Batchelor was charged with careless driving, possessing cannabis and unlawfully possessing a firearm and ammunition. The careless driving charge was later dropped after it was accepted by police that he had been a passenger in the vehicle. The unlawful possession of ammunition charge was also later dropped. In the meantime, Mr Batchelor had been granted bail to an address in Paraparaumu.

[6] On 5 August 2018, police carried out a bail check at the address. Mr Batchelor was not present at the time, but another occupant let police into the shed where he was staying. The shed smelt strongly of cannabis, so police invoked a statutory search power.6 A plastic container was found, which contained 4.36 grams of…

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 Batchelor v The Queen

Details

AGLC: Batchelor v The Queen [2018] NZHC 3279
Case: [2018] NZHC 3279
Decision Date: 12 December 2018

CaseChat Overview and Summary

The appellant, John Charles Batchelor, appealed his sentence of 14 months' imprisonment, imposed by Judge Ruth in the District Court at Nelson, on various charges including cannabis cultivation, possession of cannabis and firearms. Batchelor argued that the sentence was manifestly excessive. The High Court of New Zealand allowed the appeal and substituted a sentence of four and a half months' imprisonment. The appeal hinged on whether the original sentence was an error and if a different sentence should be imposed. The court found that the starting point for the sentence was too high, and the uplift for previous offending and the breach of bail was disproportionate. Additionally, the court found that there was no jurisdiction to grant a discount for custodial time served. The court found that a starting point of six months' imprisonment was appropriate for the totality of the offending, and an uplift of no more than two months was appropriate to take into account Batchelor's previous convictions. Applying the discount given by Judge Ruth for time spent on restrictive bail and Batchelor's health difficulties resulted in a preliminary sentence of six months' imprisonment. Applying the 25 per cent discount for guilty plea resulted in an end sentence of four-and-a-half months' imprisonment. Batchelor's lead sentence for cultivating cannabis was reduced from 14 months' imprisonment to four-and-a-half months' imprisonment, and he was to be immediately released following the judgment.

Orders