Bidois v Police - [2017] NZHC 589

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 Respondent

Judgment:

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…

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: [2017] NZHC 589
Decision Date: 29 March 2017

CaseChat Overview and Summary

In the case of Bidois v Police, the appellant, Robert Charles Ropata Bidois, was appealing against a term of five years’ imprisonment. The appellant argued that the uplift applied by the judge to account for related and previous offending rendered the sentence manifestly excessive. The appellant was found guilty of cultivating cannabis, possessing equipment capable of cultivating cannabis, possessing a firearm and explosives, and breaching a protection order. The court found that the appellant had grown a large amount of cannabis hydroponically in a rented property, bypassing the meter to steal electricity, and had made at least $100,000 from the operation. Police also found a sawn-off shotgun and ammunition in the same room as the cannabis operation, and the judge concluded that the appellant had armed himself for the purposes of defending the cannabis growing operation.

The legal issue before the court was whether the uplift applied to the sentence for the firearms and previous offending was excessive. The court considered the appellant's submission that an uplift of more than six months was excessive, particularly as the protection order breach was of moderate seriousness. However, the court rejected this submission on the basis that the presence of a firearm or firearms in the context of controlled drugs offending has long been treated as a serious aggravating factor. The court also noted that the concept of a range is awkward when the figures are so compressed, and that context remains important when assessing the propriety of an uplift and its magnitude.

The court concluded that the sentence was not manifestly excessive, as the appellant had received a significant discount for shortening the trial by two days after his case had been in the system for 18 months. The appeal was dismissed.

Orders