Brown v Police - [2019] NZHC 3365

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2019-412-000030

[2019] NZHC 3365

BETWEEN
HARLEY JAMES BROWN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 December 2019

Appearances:

M J Taylor-Cyphers for Appellant R D Smith for Respondent

Judgment:

17 December 2019

JUDGMENT OF DUNNINGHAM J

Introduction

[1] On 3 July 2019, Judge Phillips sentenced Harley Brown to two years and three months’ imprisonment on charges of cultivation of cannabis, possession of equipment and material for the cultivation of cannabis, and possession of cannabis for supply. He now appeals that sentence on the grounds that the starting point was too high, the sentence of imprisonment fails to take proper account of his rehabilitative needs for his addiction and mental health, and the sentence is not the least restrictive outcome that is appropriate in the circumstances.

Facts

[2] Mr Brown is 24 years old and lived in a three bedroom flat in Dunedin. He had specifically rented this flat to convert the two spare rooms into cannabis growing

BROWN v NEW ZEALAND POLICE [2019] NZHC 3365 [17 December 2019]

rooms. Mr Brown had constructed three indoor growing tents between the two spare rooms and had pulled the curtains to control the lighting.

[3] Mr Brown had taken cuttings (clones) for propagation off two cannabis plants referred to as a “mother plant” to ensure its type and quality is replicated. He then placed each clone into a growing medium and then into a plastic cup of soil. In total there were 132 seedling clones in one of the growing tents. One of the other tents was set up with 12 mature cannabis plants, approximately one metre in height. They had been well cared for and were ready for harvest. Mr Brown connected an air ventilation ducting system, venting into the ceiling from the growing chambers.

[4] Police executed a search warrant at Mr Brown’s flat on 21 June 2018. A total of 144 cannabis plants were seized, along with a quantity of dried cannabis head materials which had been packaged for sale. This was made up of 20 $50 bags, each weighing two grams. There was a further 22 grams of dried cannabis which had not been packaged. Also located were 127 new plastic bags of the size used for packaging two gram amounts, together with digital scales.

[5] The value of the 12 mature plants was assessed as being around $8,400. While the summary of facts said the potential value of the 132 seedlings was $92,400, a statement from a police officer, Detective Neil Lowden, reassessed this to be conservatively worth $79,200. The value of the dried cannabis was $1,550.

District Court decision

[6] Judge Phillips began by referring to the guideline judgment of R v Terewi, saying “there cannot be any argument here that your offending falls within … category 2”, being a “small-scale cultivation of cannabis plants for a commercial purpose”, thus attracting a starting point which is generally between…

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 Brown v Police

Details

AGLC: Brown v Police [2019] NZHC 3365
Case: [2019] NZHC 3365
Decision Date: 17 December 2019

CaseChat Overview and Summary

Harley Brown appeals against the sentence of two years and three months’ imprisonment imposed by Judge Phillips on charges of cultivating cannabis, possessing equipment and materials for cultivation, and possessing cannabis for supply. Brown contends that the starting point was too high, that the sentence fails to consider his rehabilitative needs for his addiction and mental health, and that the sentence is not the least restrictive outcome that is appropriate in the circumstances. Brown argues for a sentence of home detention, taking into account the more than five months he has spent in prison since sentencing.

The High Court found that the starting point was within the range set by the guideline decision in R v Terewi. While Brown’s offending fell within category 2 of Terewi, the Court considered the premeditation, sophistication, and scale of the offending. The starting point of two years and nine months was within the available range and the offending could not be considered to fall at the bottom of category 2. The Court also considered that Brown's addiction did not justify a specific discount in the sentencing process. However, the Court did acknowledge Brown's potential for rehabilitation and his relative youth, and therefore reduced the sentence by 20 per cent for personal mitigating factors. The Court converted the balance of Brown’s prison sentence to home detention, to be served at the address identified in the pre-sentence report.

The appeal is allowed. The sentence of two years and three months’ imprisonment is quashed. Brown is to serve a sentence of six months and two weeks’ home detention, at the address identified in the pre-sentence report, commencing Wednesday 18 December 2019. The special conditions recommended in the pre-sentence report are to apply in addition to the standard conditions.

Orders