Belk v The Queen

[2012] NZHC 1199

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-000012 [2012] NZHC 1199

BETWEEN  JASON HANS BELK Appellant

ANDR Respondent

Hearing:         30 May 2012

Appearances: R A B Barnsdale for Appellant

P V Cornege for Respondent

Judgment:      30 May 2012

JUDGMENT OF COURTNEY J

Solicitors:           Almao Douch, P O Box 19173, Hamilton

Fax: [phone] –

Counsel:             R A B Barnsdale, P O Box 19303, Hamilton

Fax: [phone]

BELK V R HC HAM CRI-2012-419-000012 [30 May 2012]

[1]      Following the hearing of this appeal on 30 May 2012 I allowed the appeal, quashing the existing sentence of two years imprisonment and substituting it with a term of nine months home detention.  I now provide reasons for that decision.

[2]      On 2 April 2012 Judge Burnett sentenced Mr Belk to two years imprisonment on seven cannabis-related charges, the lead charge being producing cannabis oil which carries a maximum penalty of 14 years imprisonment.  The charges followed the execution of a search warrant at Mr Belk’s home address which was occupied by Mr Belk, his wife and two children aged nine and ten.  A shed on the property was found to contain a fully functioning hydroponics operation.   To the rear of the property was a bag containing a substantial amount of cannabis cabbage and 56 grams of cannabis oil. Also found was oil residue, a cannabis drug pipe and scissors. Inside the house there were two spotting knives used for consuming cannabis oil.

[3]      Mr Belk pleaded guilty at an early stage.  Although the amount of cannabis oil was well in excess of the presumptive amount for supply Mr Belk maintained, and the Judge accepted, that he had a longstanding cannabis habit and, apart from some informal sharing with friends, there was no commercial element to the operation. A significant aspect of the offending related to chronic pain from arthritis. Mr Belk did have previous criminal convictions, including previous convictions for manufacturing cannabis oil and cultivating cannabis.  Although they dated back to

1998 Mr Belk acknowledged that his cannabis operation was longstanding.

[4]      The Judge took a starting point of two years four months imprisonment, which Mr Barnsdale, for Mr Belk, accepted was in the permissible range for this offending.  However, he submitted that the Judge wrongly put too much emphasis on one aspect that she regarded as a serious aggravating circumstance, namely the use of cannabis in the presence of the children that lived in the house.  This seemed to have been an inference drawn solely from the fact that children lived at the house and that knives were found in the house.   There was not, however, any specific evidence that cannabis consumption occurred in the presence of children.  It was not referred to in either the pre-sentence report or the summary of facts.

[5]      For the purposes of this appeal Mr Belk has provided affidavits from friends and family members.  Mr Belk’s wife, Lisa Belk, has explained that she and Mr Belk have been married since 1991 and have four children (two now adult).  Most of the affidavit describes their personal circumstances, which I come to shortly.  However, in relation to this issue Mrs Belk has deposed that Mr Belk never smoked drugs around either her or the children and kept the shed containing the hydroponic operation locked. The children never went to the shed and nor did she.

[6]      Mr Cornege, for the Crown, responsibly accepted that this information should be taken into account for the purposes of the appeal and, in the light of it, it seems that the Judge’s inference, although perhaps understandable, was not correct. However, Mr Cornege submitted that, notwithstanding that fact, the end sentence was within the available range and I accept that is the case.

[7]      This leaves the second issue, being the Judge’s refusal to consider home detention as a possible alternative to a custodial sentence.  The Judge considered that a sentence of home detention was not appropriate because of Mr Belk’s previous convictions and the length of time he had offended within his home.  The Judge did not, however, have available to her the kind of information that has been provided for the purposes of the appeal.

[8]      It is evident that Mr Belk’s family depend very heavily on him.  Mrs Belk has described this aspect in some detail in her affidavit.   She and Mr Belk were in a serious  car accident  when  they were  teenagers.    Mrs  Belk  sustained significant injuries and suffers from ongoing medical problems, including pain, anxiety, high blood pressure and, recently, seizures.  Her back injury in particular causes chronic and constant pain.  As a result, Mr Belk has taken the role of primary caregiver for the couple’s children, this role being recognised by WINZ.  These circumstances are made more difficult because the two younger daughters have special needs and Mrs Belk is really unable to care for herself and the children alone.   Mr Cornege responsibly accepted that the family’s circumstances were so unusual that home detention was an appropriate option in this case.

[9]      Mr Belk has already served two months in prison.  As a result, I considered that a sentence of home detention of nine months was appropriate.  I also imposed

the conditions noted at page 5 of the pre-sentence report.

P Courtney J