Cormack v The King
[2025] NZHC 2873
•1 October 2025
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2025-425-000010
[2025] NZHC 2873
BETWEEN SELWYN ERIC CORMACK
Appellant
AND
THE KING
Respondent
Hearing: 22 September 2025 Appearances:
S G Vidal for Appellant
M B Brownlie for Respondent
Judgment:
1 October 2025
JUDGMENT OF PRESTON J
This judgment was delivered by me on 1 October 2025 at 9.00 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
CORMACK v R [2025] NZHC 2873 [1 October 2025]
Introduction
[1] Selwyn Cormack, aged 61, pleaded guilty to a series of cannabis related offending, including 75 charges of possession for supply of cannabis,1 one of cultivating cannabis,2 two of unlawfully possessing firearms3 and one of unlawfully possessing ammunition.4 On 13 February 2025, Judge M Williams sentenced him to two years and nine months’ imprisonment.5
[2] Mr Cormack appeals the sentence on the basis that term was manifestly excessive and the Judge wrongly applied the guideline judgment for such offending.
Facts
[3] On 24 June 2024, police executed a search warrant at Mr Cormack’s address and located 44 cannabis plants in grow tents, 13 cannabis seedlings in a hydroponic tent, a .303 calibre rifle, a dismantled shotgun, 122 shotgun cartridges and three rifle rounds. During a search of Mr Cormack’s phone, his messages revealed further evidence of his involvement in the supply of cannabis. It identified that between 13 July 2021 and 22 June 2024, he supplied and offered to supply cannabis to eight associates on 75 occasions. The investigation found Mr Cormack supplied approximately 77 ounces of cannabis with a street value of $26,950. He offered to supply a further 26.5 ounces, with a street value around $9,275. In explanation, he said he was growing cannabis for personal use, and he got the firearms off someone on the street.
District Court decision
[4] The Judge applied the tariff decision for cannabis offending, R v Terewi.6 Given the cannabis dealing took place over a three-year period, he determined it fell within the middle of band two and adopted a starting point of three years’ imprisonment. He then uplifted this by 15 months for the firearms offending. A 25 per
1 Misuse of Drugs Act 1975, s 6(1)(f); maximum penalty eight years’ imprisonment.
2 Section 9(1); maximum penalty seven years’ imprisonment.
3 Arms Act 1983, s 45(1); maximum penalty four years’ imprisonment or $5000 fine.
4 Section 22B; maximum penalty $10,000 fine.
5 R v Cormack [2025] NZDC 2774.
6 R v Terewi [1999] 3 NZLR 62 (CA).
cent deduction was given for guilty pleas. A further 10 per cent was deducted for personal mitigating factors including Mr Cormack’s health and age. This resulted in an end sentence of two years and nine months’ imprisonment.
[5] Ms Vidal advises Mr Cormack, who spent approximately seven months in custody on remand prior to sentencing, has been admitted to parole by the Board.
Argument on appeal
[6] Ms Vidal submits the Judge erred in applying Terewi given that sentencing for methamphetamine offending is now governed by a new guideline judgment (Zhang v R).7 She says a lower starting point should have been adopted for the cannabis offending as it is less harmful than methamphetamine, Mr Cormack did not make any real profit from his illegal activities, and has not caused any direct harm to others nor committed offences as a result of his cannabis consumption. Ms Vidal submits that without the firearms charges, the appellant could have received a community-based sentence, but that the combination of offending should have resulted in an end sentence of no more than 18 months’ imprisonment.
[7] For the respondent, Mr Brownlie notes Terewi remains the guideline judgment for cannabis offending and bound the Judge as it does this Court on appeal. Mr Brownlie submits the Judge did not err in placing the offending in category two of Terewi as the cultivation was relatively small in scale but clearly intended to derive profit, and argues the starting point of three years was within the available range with reference to Gillan v R,8 Oates v R,9 Sinclair v R10 and Harrieder v R.11
[8] Turning to the uplift for the firearms offending, Mr Brownlie emphasises the unlawful possession of a firearm in and of itself requires courts to impose deterrent sentences.12 Further, the Court of Appeal has consistently recognised that the possession of firearms in association with drug offending is a serious aggravating
7 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
8 Gillan v R [2021] NZHC 2799.
9 Oates v R [2023] NZHC 1349.
10 Sinclair v Police [2021] NZHC 2788.
11 Harrieder v R [2020] NZHC 2548.
12 R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338 at [40].
factor,13 and the respondent relies on Tule v R in submitting the 15-month uplift here was well within the available range.14
Discussion
Starting point
[9] R v Terewi is the tariff case for cannabis offending. Despite the appellant’s challenges to Terewi, it remains good authority and has been not revisited. As the respondent observes, while on several occasions the Court of Appeal has recognised that Terewi may require reconsideration, it has yet to be revisited.15 Instead, as this Court observed as recently as September 2025, the case remains good law in the absence of a new guideline judgment.16
[10] In oral submissions, Ms Vidal stepped back from her written submission that the application of Terewi without downward modification of the bands therein breaches s 8 of the Sentencing Act 2002 and s 27 of the New Zealand Bill of Rights Act 1990. Ms Vidal conceded there is no proper basis to depart from the guideline judgment, as a matter of law.
[11] Zhang v R,17 referred to by Ms Vidal, is the guideline judgment for methamphetamine offending. Zhang acknowledges that methamphetamine causes more harm in the community, which is recognised by the higher starting point—with the lowest band for supply (less than five grams) providing for starting points between two- and four-years’ imprisonment. Unlike Terewi, there is no level of methamphetamine supply which provides for a starting point below a sentence of imprisonment. The only relevant factor from Zhang could be the role performed by the appellant in the offending, as was applied in Crouch v Police.18 I accept that
13 Mills v R [2016] NZCA 245 at [18]; Perez v R [2015] NZCA 267 at [51]; Cooper v R [2013] NZCA 551 at [29]; R v Henwood [2008] NZCA 248 at [23]; and R v Faifua CA287/05, 27 March 2006 at [26].
14 Tule v R [2023] NZCA 543.
15 R v Smyth, above n 10, at [17]; Smith v R [2022] NZCA 606 at [12]; and Anderson v R [2022] NZCA 472 at [20].
16 Iloahefaiva v R [2025] NZCA 467 at [14]–[15] and [19]–[20]; Crouch v Police [2025] NZHC 739 at [19]; and Newton v Police [2019] NZHC 1245 at [35]–[36].
17 Zhang v R, above n 7.
18 Crouch v Police, above n 16.
Mr Cormack’s offending was at a lower level, but nevertheless, the Judge made no error in concluding Mr Cormack fell within category two of Terewi.
[12] In Terewi, the Court of Appeal set out three categories related to cannabis offending as follows:
Category 1 consists of the growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence. Where there have been supplies to others on a non-commercial basis, the monetary penalty will be greater and in more serious cases or for persistent offending a term of periodic detention or even a short prison term might be merited. …
Category 2 encompasses small-scale cultivation of cannabis plants for a commercial purpose, i.e. with the object of deriving profit. The starting point for sentencing is generally between two and four years but where sales were infrequent and of very limited extent a lower starting point may be justified.
Category 3 is the most serious class of offending. It involves large scale commercial growing, usually with a considerable degree of sophistication and organisation. The starting point will generally be four years or more.
[13] The sentencing Judge determined that Mr Cormack’s offending fell within band two of Terewi due to the amounts and frequency of offerings indicated in the text messages.
[14] Ms Vidal contends that the appellant had “not made any real profit” from the proven cannabis sales and has “not caused any direct harm to others” as occurs with methamphetamine. She suggests any gain would only cover the cost of one ounce of medical marijuana per month over the course of the three-year period of offending. This is consistent with the amount of medicinal cannabis prescribed to Mr Cormack. Accordingly, Ms Vidal submits the dealing in which Mr Cormack was involved should justify a sentence below three years, without reference to the Terewi categories. She does not specify what the starting point should be, while contending no more than 18 months’ imprisonment including for the firearms offending, was warranted.
[15] Mr Cormack pleaded guilty to the charge of possession of cannabis for supply. While I acknowledge that the cultivation was on the lower end of the scale, this offending clearly falls within category two.
[16] While Ms Vidal does not refer to cases which would indicate a lower starting point is justified, the respondent cites four relatively recent cases as comparators. Mr Brownlie submits these involved a similar level of seriousness to the present, and the starting point of three years was within the available range, accordingly:
(a)Gillan v R:19 the appellant sold $1,100 worth of cannabis and offered to sell a further $200 worth, on execution of a search warrant police located 34 cannabis plants with an estimated street value of $45,900. The offending was found to fall at the lower end of category two of Terewi and the Judge adopted a starting point of 26 months which was upheld on appeal.
(b)Oates v R:20 the appellant was sentenced for cultivating cannabis, selling cannabis (x 22) and offering to sell cannabis (x 15), on execution of a search warrant police located 66 cannabis plants, with an estimated yield of 3.57 kilograms, equating to a street value around $37,800, and 37 text messages showing sales or offers to sell. The offending was found to fall in the middle of category two of Terewi and a starting point of three years was upheld on appeal.
(c)Sinclair v Police:21 the appellant sold approximately five ounces of cannabis each week over eight months, generating $80,000. Between 78 and 102 grams of cannabis (valued at $1,700) was located in his vehicle, and 151 grams of cannabis (valued at $3,250) and $32,950 in cash were located at his address. The offending was found to fall in category two of Terewi and a starting point of three years’ imprisonment was upheld on appeal.
(d)Harrieder v R:22 the appellant was convicted of possession of cannabis for supply. In executing a search warrant, police located 2.1 kilograms of cannabis (valued around $27,360 and $54,700) and $117,405.80 in
19 Gillan v R, above n 8.
20 Oates v R, above n 9.
21 Sinclair v Police, above n 10.
22 Harrieder v R, above n 11.
cash. The offending was found to fall within category two of Terewi and a starting point of three years and two months was upheld on appeal.
[17] I agree, as the respondent submits, the Judge did not err in placing the offending in category two of Terewi as the cultivation was relatively small in scale, but clearly intended to derive profit as demonstrated by the extent and period of sales. While, appropriately, no uplift was applied for Mr Cormack’s historic convictions in 2010 including for possession of cannabis for supply, the further offending over an extended period demonstrates some persistence in offending.
[18] With reference to the above cases, the starting point for the cannabis offending was well within range. Here, Mr Cormack supplied approximately 77 ounces with a street value of around $26,950 and offered to supply a further 26.5 ounces with a street value of around $9,275. This is approximately 103.5 ounces or 2.9 kilograms, with a street value around $36,225. Considered alongside the above cases Mr Cormack’s offending was at the lower end of category two with regards to his profit (or lack thereof), however the amount of cannabis cultivated is similar, and his offending is aggravated by the three-year period of the offending.
[19] I am satisfied the Judge correctly assessed Mr Cormack’s cannabis offending as falling within band two of Terewi. While I acknowledge that the three-year starting point was at the higher end of the available range, I find the Judge made no error in setting the starting point for the cannabis offending.
Firearms uplift
[20] The presence of firearms associated with drug dealing, is of perennial concern in the criminal justice system.23 The Court of Appeal in Mills v R noted 12 to 18 months is an appropriate uplift for such firearms offending.
23 Mills v R, above n 13, at [18] citing Fonotia v R, above n 12, at [41]; and Haggie v R [2011] NZCA 221 at [23].
[21] Ms Vidal submits that given there was no evidence of the firearms being loaded or being related to the cannabis offending, that they were located in the appellant’s home instead of a vehicle, and that one of them was dismantled and not readily able to be used, the uplift should have been lower.
[22] As noted, Mr Brownlie refers to Tule v R, where the appellant was charged with possession of methamphetamine for supply, possession of cannabis, and the uplift of 12 months for unlawful possession of a firearm and ammunition was upheld on appeal.24 Mr Brownie submits the present offending involves the unlawful possession of two firearms compared with only one in Tule, and as such, the 15-month uplift was well within the available range.
[23] The Judge was plainly correct to regard the unlawful possession of the firearms and ammunition as being related to the drug offending. The fact that the firearms were found in a different room, and in the appellant’s house rather than a vehicle, does not diminish this aggravating feature. An unloaded firearm is inherently serious and will be considered dangerous to people who do not have the knowledge that the firearm is unloaded.
[24] Given the minimum uplift provided for possession of firearms in the context of drug dealing is 12 months’ imprisonment, and the appellant was found in possession of two firearms and 122 shotgun cartridges and three rifle rounds, the uplift of 15 months was not beyond the range available to the sentencing Judge.
[25] As a result, I do not find the Judge erred in imposing an end sentence of two years and nine months’ imprisonment.
24 Tule v R, above n 14, at [18].
Result
[26]The appeal is dismissed.
………………………………………
Preston J
Solicitors:
Crown Solicitor, Invercargill
Counsel:
S G Vidal, Barrister, Christchurch
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