Bidois v Police
[2017] NZHC 589
•29 March 2017
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2017-419-000003 [2017] NZHC 589
BETWEEN ROBERT CHARLES ROPATA BIDOIS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 28 March 2017 Counsel:
GD Prentice for Appellant
TA Needham for RespondentJudgment:
29 March 2017
JUDGMENT OF DOWNS J
This judgment was delivered by me on Wednesday, 29 March 2017 at 11 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Public Defence Service, Hamilton.
Crown Solicitor, Hamilton.
BIDOIS v POLICE [2017] NZHC 589 [29 March 2017]
[1] This is a sentence appeal against a term of five years’ imprisonment. The appellant accepts as correct Judge Spear’s approach in relation to the primary offending. However, he submits the Judge uplifted the sentence so that related and previous offending has rendered it manifestly excessive.
[2] The appellant was found guilty of cultivating cannabis; possessing equipment capable of cultivating cannabis; possessing a firearm and explosives (a shotgun and
20 shells) except for some lawful, proper and sufficient purpose; and breaching a protection order. In brief, the appellant grew a very large amount of cannabis in a property rented by him for that purpose. Police found 239 cannabis plants there, all growing hydroponically. The system was operated by stolen electricity—the appellant had bypassed the meter. The Judge was satisfied the appellant had made at least $100,000 from growing cannabis.
[3] Police also found a sawn-off shotgun hidden down the side of the appellant’s bed, and 20 shotgun shells in the same room. The Judge concluded the appellant had armed himself “for the purposes of defending your cannabis growing operation from anyone who might want to plunder it”.1 The offending was committed while the appellant was on bail for contravening a protection order. And, by dint of that order, the appellant’s possession of the shotgun constituted an additional offence of
breaching a protection order.
[4] Judge Spear adopted a starting point of four years’ imprisonment in relation
to the cannabis offending. The balance of the offending attracted an uplift of
12 months’ imprisonment. The appellant’s previous convictions resulted in a further uplift of three months. The Judge then mitigated the sentence by three months (in recognition of the appellant’s responsible approach at trial). As observed, the appellant does not contest the starting point in relation to the cannabis offending; only the uplifts for the balance of the offending and his previous offending.
[5] Mr Prentice helpfully analysed 10 cases in which a firearm or firearms had been found in connection with controlled drugs. In five of those cases, the Arms Act
offending attracted an uplift of six months. An eight-month uplift was applied in two
1 Police v Bidois [2016] NZDC 25849 at [12].
cases, but in one of the two there were other charges as well. The remaining cases attracted uplifts of four months’ and 12 months’ imprisonment respectively. All are set out in an attached schedule based on a version prepared by Mr Prentice.
[6] Mr Prentice submits Judge Spear should not have imposed an uplift of more than six months—or perhaps eight months—particularly as the protection order breach was only of moderate seriousness (the protection order relates to the appellant’s former partner who lives elsewhere in the country). In advancing this submission, Mr Prentice invited my attention to the observations of Dobson J in Slape v R (being one of the cases in the table):2
In a preponderance of cases that are comparable, uplifts of between six months and eight months’ imprisonment have been confirmed. The size of the arsenal, the presence of ammunition, and any additional connotations of availability for covert use reflected in the extent of adaptation may be relevant.
[7] I reject this submission for six reasons. First, the presence of a firearm or firearms in the context of controlled drugs offending has long been treated as a serious aggravating factor for obvious reasons.3
[8] Second, the Court of Appeal has not prescribed uplifts in this context. That is not surprising given factual sensitivity in this area, and the availability of different sentencing approaches (for example, a Judge might impose a cumulative term of imprisonment in relation to a firearm rather than increasing the starting point of the associated drugs offending).
[9] Third, the concept of a range is awkward when the figures are so compressed: the difference between the highest example cited by the appellant and the lowest is only eight months.
[10] Fourth, if one analyses the cases as the respondent has done, namely by percentage uplift, this uplift was 25 percent against a “range” of 15–33 percent in the cases cited, and so almost in the middle of the continuum. True, uplifts in this area are not conventionally approached as a percentage of the primary drugs offending.
And I am not suggesting they should be. However, many of the examples cited by the appellant involve drugs offending of lesser seriousness, in turning affecting context. For example, in Slape the defendant grew 42 cannabis plants in an operation described by Dobson J as “relatively substantial”.4 A two-and-a-half-year starting point for that offending attracted a 12-month uplift for the Arms Act offending. Dobson J concluded an eight-month uplift would have been “adequate”.
However, in reaching this conclusion—and declining to further reduce the uplift— His Honour referred to the overall seriousness of the defendant’s offending.5 All of which is another way of saying context remains important when assessing the propriety of an uplift and its magnitude.
[11] Fifth, Judge Spear was satisfied there was a direct connection between the firearms offending and drugs offending on the basis the shotgun was to be used to protect the appellant’s crop. The presence of ammunition in the same bedroom as the shotgun underscores that conclusion, which was plainly open to the Judge.
[12] Sixth, the protection order breach required recognition, particularly when all of the offending was committed while the appellant was on bail for breaching the same protection order.
[13] This leaves Mr Prentice’s remaining submission in relation to the uplift for the appellant’s previous offending. Everyone at sentencing laboured under the misapprehension two of the appellant’s convictions anteceded the index offending: possession of a syringe and possession of utensils in connection with methamphetamine. In fact, both offences were committed in 2016.
[14] Other previous convictions can be identified: the appellant possessed both methamphetamine and utensils in 2013, and cannabis in 2011. And, the appellant was convicted of breaching a protection order in 2013. However, as I observed to Ms Needham at the hearing, there is an element of “scratching around” in assembling a set of previous convictions to justify an uplift when the combination was not relied on at first instance, and in any event, of questionable seriousness to
justify one. Care must be taken so as not to punish a defendant twice. So, I am
inclined to accept Mr Prentice’s second submission.
[15] However, a sentence appeal is ultimately concerned with outcome, not process. Decisively, the sentence is not manifestly excessive. The appellant was the beneficiary of a three-month deduction for trial concessions which reduced the time of trial from five days (perhaps six) to three days. A deduction of this nature was open to the Judge by virtue of s 9(2)(fa) of the Sentencing Act 2002, a provision enacted to complement the reforms effected by the Criminal Procedure Act 2011. But at this level it was generous. The point can be illustrated this way.
[16] If the appellant had pleaded guilty promptly, he would have been eligible for a discount of not more than 25 percent (depending on the strength of the Crown case and the other factors identified by the Supreme Court in Hessell v R).6 If the overall starting point had been five years, the maximum discount would have been one year and three months. Given the complexion of the Crown case, a lower discount was likely, say, a year. The appellant was charged on 25 March 2015. He was tried in
mid-October 2016, so, 18 months later. Multiple appearances were required to that point, with associated cost. And, while the trial concessions were sensible, a tactical element is likely to have been at play. Most defendants do not contest a firearm is a firearm as defined by the Arms Act, nor contest continuity of exhibits.
[17] To recapitulate, while the uplift for the appellant’s previous offending was questionable, the appellant received a significant discount for shortening the trial by two days after his case had been in the system for 18 months. The sentence is not manifestly excessive.
[18] The appeal is dismissed.
……………………………..
Downs J
6 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
Appendix A: Table of cases
| Case | Charges | Sentence starting point | Uplift for firearms charges | Additional uplifts | Final sentence |
| R v Coe [2012] NZHC 3242 | Possession of cannabis for supply; unlawful possession of firearm | 2 years’ | 4 months | 6 months: for previous drugs and firearms charges | 2 years, |
| R v Harvey [2013] NZHC 2425 | Possession of cannabis for sale; cultivation of cannabis; producing cannabis oil; unlawful possession of a firearm; unlawful possession of ammunition | 2 years, | 6 months: for remaining charges. 4 months for previous convictions/ offending while subject to sentence | 2 years, | |
| R v Ngatai [2014] NZHC 186 | Possession of cannabis for supply; unlawful possession of a shotgun and ammunition | 2 years, | 6 months | 6 months: for previous offending | 2 years, |
| Crutchley v R [2015] NZCA 473 | Possession of cannabis for supply; unlawful possession of a pistol | 2 ½ years’ | 6 months | 4 years’ | |
| R v Crawford-Flett [2012] NZHC 2273 | Possession of cannabis for supply; cultivating cannabis; unlawful possession of a firearm | 3 years, | 6 months: for firearms charge and previous cultivation charge | 2 years’ |
| Case | Charges | Sentence starting point | Uplift for firearms charges | Additional uplifts | Final sentence |
| R v Stock HC Auckland CRI-2010-004-17262 11 February 2011 | Manufacturing methamphetamine; possession of methamphetamine for supply; possession of precursor substances (x 2); possession of equipment (x 6); possession of cannabis for supply; unlawful possession of a shotgun | 8 years, | 6 months: to reflect previous convictions and for firearms offence | 6 years, | |
| Slape v R [2015] NZHC 2637 | Cultivation of cannabis; possession of utensils; possession of methamphetamine; unlawful possession of firearms, pistols and ammunition | 2 ½ years imprisonment | 8 months | 2 years, | |
| Hereaka v R [2011] NZCA 429 | Cultivation of cannabis (x 3); manufacturing cannabis resin; receiving (x 7), theft of electricity; unlawful possession of firearm | 3 years, | 8 months: to reflect receiving and firearms charges. | 3 years, |
| Case | Charges | Sentence starting point | Uplift for firearms charges | Additional uplifts | Final sentence |
| R v Bright [2013] NZHC 582 | Cultivating cannabis; possession of equipment and materials; theft of electricity; unlawful possession of firearm; unlawful possession of ammunition | 3 years, | 9 months: for totality of remaining charges | 17 months’ | |
| R v McLean [2009] NZCA 465 | Importing cannabis seeds (x 2); cultivating cannabis; possession of equipment/precursor substances (x 3); unlawful possession of a pistol | 3 years’ | 12 months | 6 months | 4 years’ |
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