Cole v The Queen - [2014] NZCA 238

IN THE COURT OF APPEAL OF NEW ZEALAND

CA662/2013
[2014] NZCA 238

BETWEEN	IAN ALFRED COLE Appellant
AND	THE QUEEN Respondent

Hearing:	19 May 2014
Court:	White, Ronald Young and Simon France JJ
Counsel:	Appellant in person M J Lillico for Respondent
Judgment:	12 June 2014 at 12.00 pm

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe sentence of nine months’ home detention and 150 hours’ community work is quashed.
CA sentence of six and a half months’ home detention is now imposed.
DMr Cole is to be at his home address on Friday 13 June 2014 to await the arrival of the probation officer and the security guard who will install the monitoring equipment. Mr Cole is to be subject to the six and a half months’ home detention from that date at that address and subject to the conditions imposed in the District Court.

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REASONS OF THE COURT

(Given by White J)

The appellant, Mr Cole, was convicted in the Greymouth District Court on three charges: possession of cannabis for supply, possession of a Class A drug, namely LSD, and cultivation of cannabis. He was sentenced by Judge Garland to nine months’ home detention and 150 hours’ community work.[1]
[1]R v Cole DC Greymouth CRI-2011-086-338, 30 August 2013.
Mr Cole appeals against his sentence on a range of grounds, but in essence he must establish that it was manifestly excessive.
The charges followed Police searches of Mr Cole’s car and house where the cannabis and LSD were found. The quantities involved and the nature of Mr Cole’s cannabis growing operation are conveniently described by Judge Garland in his sentencing notes when assessing Mr Cole’s level of criminality:
[20] I assess the level of criminality involved in your offending based on the following factors:
(a)First dealing with the cannabis; In the car there were eight snap lock bags and one plastic supermarket bag all containing good quality cannabis head. The total amount of cannabis head located in the car was 9.1 ounces. On the basis of Detective McLaughlin’s evidence the cannabis in the car, if sold on an ounce basis, would be worth between $2200 and $3600.
(b)In a spare bedroom at your house the police located the grow room. There were 20 cannabis plants at different stages of growth under lights in that room and some had recently been harvested. The detective acknowledged that the operation was not that sophisticated, but it is clear from his evidence that it was an ongoing operation and not just a one-off cultivation. That is further reinforced by the fact that cannabis stalks were found and had had the cannabis leaves stripped from them. The detective’s evidence was, “Because of the greenness of the cannabis stalks it could be inferred that they had recently been harvested.”
(c)In relation to the LSD, there were only three tabs found in your possession.
On the basis of these factors, Judge Garland assessed the offending as falling at the very bottom end…

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 Cole v The Queen

Details

AGLC: Cole v The Queen [2014] NZCA 238
Case: [2014] NZCA 238
Decision Date: 12 June 2014 at 12.00 pm

CaseChat Overview and Summary

Ian Alfred Cole appeals against his sentence following a conviction for possession of cannabis for supply, possession of a Class A drug, and cultivation of cannabis. Cole was sentenced by Judge Garland to nine months’ home detention and 150 hours’ community work. The appeal concerns the excessiveness of the sentence, particularly the addition of the community work component. The Court of Appeal, hearing the matter, comprised White, Ronald Young, and Simon France JJ.

The primary legal issue for the Court was whether the sentence imposed by the District Court was manifestly excessive. The appeal hinged on whether the addition of 150 hours of community work to the nine months of home detention was justified and whether this constituted an excessive sentence. The Court had to determine if the original sentence was appropriate or if it should be reduced due to the appellant's compliance with the community work component despite the suspension of the sentence pending the appeal.

The Court of Appeal found that the sentence of nine months’ home detention was appropriate but deemed the addition of 150 hours’ community work to be unjustified, rendering the overall sentence manifestly excessive. The Court considered the appellant's compliance with the community work despite the suspension of the sentence, his completion of 27 days of the original home detention sentence, and the restrictive nature of his original home detention due to the location of the monitoring equipment. These factors warranted a reduction in the home detention sentence. The Court concluded that the home detention sentence should be reduced by two and a half months, resulting in a new sentence of six and a half months’ home detention.

The appeal was allowed, and the sentence of nine months’ home detention and 150 hours’ community work was quashed. A new sentence of six and a half months’ home detention was imposed. Mr. Cole was directed to be at his home address on Friday, 13 June 2014, to await the installation of the monitoring equipment by the probation officer and the security guard.

Orders