Cleaver v The Queen

[2019] NZHC 895

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-404-439

[2019] NZHC 895

BETWEEN

NELSON CLEAVER

Appellant

AND

THE QUEEN

Respondent

Hearing:

26 March 2019

Counsel:

M Pecotic for Appellant

C G McDiarmid for Respondent

Judgment:

18 April 2019

JUDGMENT OF DUFFY J

This judgment was delivered by me on 18 April 2019 at 4.45 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel:

Maria Pecotic, Barrister, Auckland Meredith Connell, Auckland

CLEAVER v THE QUEEN [2019] NZHC 895 [18 April 2019]

[1]    Mr Cleaver seeks leave to appeal out of time against a sentence of eight months home detention on one charge of offering to supply cannabis and one charge of cultivation of cannabis. On a separate charge of possession of cannabis he was convicted and discharged.

[2]    The Crown will abide the Court’s decision on the leave application, but submits the substantive appeal should be dismissed.

[3]    The Crown responsibly accepts it  is  not  prejudiced  by  the  late  appeal.  Mr Cleaver has provided sufficient excuse for the delay. Accordingly, I am satisfied he should be granted leave to appeal out of time.

Facts

[4]    As a result of Police investigating an associate of Mr Cleaver they came to believe he was involved in drug offending. Accordingly, they obtained a search warrant for his address, which on execution (on 23 September 2016) revealed two rooms in which a total of 12 cannabis plants were being cultivated. They were in the process of being harvested with developing buds attached to many of them.

[5]    The Police summary of facts described the cultivation as of medium sophistication. It included specialised lighting, plastic sheeting, fertiliser, extractor fans and electrical timers.

[6]    Data on Mr Cleaver’s cell phone showed that on 2 August 2016 he stated he wanted to sell some ounces of cannabis. On 10 August 2016 he offered to supply an unknown amount of cannabis to persons interested in buying from him

[7]    When he was spoken to by Police he said the cannabis was for his personal use.

District Court sentencing

[8]    Judge Paul described the offending as a “small scale commercial operation.” In terms of the tariff decision in R v Terewi the judge placed the offending at the bottom

end of category two.1 He found this attracted a starting point of two years’ imprisonment. He then gave Mr Cleaver a 20 per cent discount for the guilty pleas which brought the sentence to one year and seven months’ imprisonment.

[9]    Judge Paul was satisfied a sentence of home detention should be imposed. He started with a term of 10 months’ which he reduced to eight months’ to take account of the time Mr Cleaver had spent on curfew while on bail.

Discussion

[10]   Mr Cleaver contends that eight months’ home detention is manifestly excessive as it sits out of line with the terms of home detention imposed for similar offending. He argues there is no evidence of sales of cannabis. He told Police the cannabis was for his personal use.

[11]   Mr Cleaver relies upon the sentences that were ultimately imposed in R v Delamore, R v Coombes, and McKee v R to illustrate why the present sentence is manifestly excessive.2

[12]   In R v Delamore the High Court substituted a sentence of 12 months’ home detention and 300 hours community work in circumstances where Mr Delamore was found with over 200 cannabis plants, 4.75 kg cannabis hanging to dry and packets of cannabis seeds.3 The cannabis found was estimated by Police to be worth between

$128,400 and $309,200.

[13]   In R v Coombes the High Court sentenced the offender on charges of cultivation of cannabis, possessing cannabis for supply and selling cannabis where there were a total of 250 plants 30 gm of cannabis and the offender admitted to selling 25 ounces of cannabis.4 He received a sentence of 6 months’ community detention and 300 hours community work.

1      R v Terewi [1999] 3 NZLR 62 at [4].

2      R v Delamore CRI-2010-004-001934, 5 October 2010; R v Coombes [2013] NZHC 70; McKee v R [2013] NZCA 387.

3      R v Delamore, above n 2.

4      R v Coombes, above n 2.

[14]   In McKee v R the Court of Appeal reduced a sentence of 12 months’ home detention to six months home detention.5 The offender was found with 66 cannabis plants. Following trial by jury he was found guilty and convicted of charges of cultivating cannabis and selling cannabis.

[15]   I acknowledge that in light of the above cases the term of home detention imposed on Mr Cleaver appears out of line.

[16]   The Crown submits that the offending in R v Delamore and in R v Coombes was more serious and attracted higher starting points. I acknowledge that to be so. But in such circumstances and taking into account the end sentences arrived at it is hard to see the justification for the term of home detention imposed here.

[17]   The Crown submits that R v McKee involved a less sophisticated operation than here and the four established sales were for relatively small amounts. The cultivation was assessed as being at the low end of category two of R v Terewi. However, the present cultivation also fits into that category and here there were no sales.

[18]   I am not persuaded by the Crown’s attempt to distinguish the comparable cases from that of Mr Cleaver’s. I find that when Mr Cleaver’s sentence is viewed alongside the comparable cases he relies upon his sentence appears to be manifestly excessive.

[19]   The personal circumstances of the offenders in Delamore, Coombes and McKee cannot be relied upon to explain or to distinguish the end sentences that were reached in those cases. Accordingly, I am satisfied that here the sentence of eight months’ home detention is manifestly excessive. I consider a sentence of six months’ home detention to be appropriate here. This is the same term of home detention as was imposed in Coombes, but unlike Coombes, which involved more serious offending, no additional sentence will be imposed as well. Six months’ home detention is also the same length of sentence as was imposed in R v McKee, which is the most comparable case to the present.

5      McKee v R, above n 2.

Result

[20]The appeal is allowed.

[21]   The term of eight months’ home detention is set aside and in its place I impose a term of six months’ home detention, which takes effect from 3 September 2018 (being the date of the sentencing in the District Court).

[22]   The conditions imposed in the District Court on the sentence of home detention remain in force.

Duffy J