Crouch v Police
[2025] NZHC 739
•1 April 2025
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI-2025-406-001 [2025] NZHC 739
BETWEEN GREGORY JOHN CROUCH
Appellant
AND NEW ZEALAND POLICE
Respondent
Hearing: 25 March 2025
Appearances: R A Harrison for the Appellant
J M Webber for the Respondent
Judgment: 1 April 2025
JUDGMENT OF GRICE J
(Appeal against sentence)
[1] On 20 January 2025, Mr Gregory Crouch was sentenced to two years and eight and a half months’ imprisonment on the following charges:1
(a)possession of cannabis for supply;2
(b)unlawful possession of a firearm;3
(c)possession of methamphetamine;4 and
(d)failing to carry out obligations in relation to a computer search.5
1 Police v Crouch [2025] NZDC 941.
2 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(c) — maximum penalty of eight years’ imprisonment.
3 Arms Act 1983, s 45(1) — maximum penalty of four years’ imprisonment or $5,000.
4 Misuse of Drugs Act, s 7(1)(a) and (2)(a) — maximum penalty of six months’ imprisonment or
$1,000.
5 Search and Surveillance Act 2012, s 178 — maximum penalty of three months’ imprisonment.
CROUCH v POLICE [2025] NZHC 739 [1 April 2025]
[1]Mr Crouch now appeals his sentence on the grounds that:
(a)The starting point for possession of cannabis for supply was too high.
(b)The uplift for the firearm, given all the circumstances, was too high.
(c)The Judge elevated the risk of the appellant presented by referring to him as a person with a history of violence.
(d)The Judge failed to take into account the significant and longstanding drug addiction that the appellant suffers.
(e)The low-level nature of the appellant’s drug dealing should have been given more weight, in light of the principles in Zhang v R.6
The offending
[2] On 19 November 2024, police executed a search warrant at the address of Mr Crouch. At the address, police found a sawn-off double barrel 12-gauge shotgun between Mr Crouch’s mattress and headboard. Police located 334 g of cannabis plant material in a large plastic bag. Police observed that the amount found could package 12 ounce-bags. Police located various amounts of cannabis stored in plastic bags and containers, with a total combined weight of 74.12 g. Police located a gram of methamphetamine in a safe, on the desk in the lounge. Police located approximately
0.5 g of methamphetamine inside a small plastic container. Police also located multiple small plastic bags which they noted were commonly used to package methamphetamine for supply.
[3] Police found $1,700 cash (in $50 and $20 denominations) in Mr Crouch’s leather jacket. Police seized Mr Crouch’s cell phone for examination pursuant to the search warrant. When the police asked for the passcode to access the device, the appellant refused to give the passcode.
6 Zhang v R [2019] NZCA 507; [2019] 3 NZLR 648.
Sentencing decision
[4] The Judge noted that Mr Crouch has had 21 previous convictions since 1998, with 13 drug related convictions. Most recently in 2020, Mr Crouch was convicted on charges of procuring or possessing methamphetamine.
[5] The Judge reviewed the Provision of Advice to Courts (PAC) report which highlighted Mr Crouch’s dependence on drugs, persisting for approximately 23 years. The Judge disagreed with the report writer that Mr Crouch was at low likelihood of re-offending pointing to the fact that Mr Crouch had 21 convictions, 13 of which are drug convictions. The Judge also disagreed with the report writer’s finding that Mr Crouch was not a likely risk and that he had no convictions for violent offending. The Judge noted that Mr Crouch’s conviction for fighting in a public place was a conviction for violence, albeit at the lower end of the scale. The Judge emphasised that if Mr Crouch had access to ammunition, he would be at high risk of causing harm or at least at medium risk of harm, based on the possession of drugs for supply.
[6] The Judge categorised Mr Crouch’s cannabis offending as a commercial dealing, operating a “little street-level size business”. The Judge categorised Mr Crouch’s offending within band two of R v Terewi — band two sets a starting point of two to four years’ imprisonment.7 The Judge identified a starting point of two years’ imprisonment as appropriate. The possession of the sawn-off shotgun by Mr Crouch was a seriously aggravating feature. The Judge noted that in similar circumstances, the Courts have given a sentence between 12 to 18 months for possession of sawn-off shot gun. The Judge considered an uplift of 12 months was appropriate, given the police found the gun alongside drugs. After applying the uplift, the starting point of the offence was three years or 36 months. A further uplift of two months’ imprisonment for both possession of methamphetamine and failing to allow police to have access to his cell phone was applied, leading to the starting point for the offending of three years and two months’ imprisonment.
[7] In relation to the personal aggravating and mitigating factors, the Judge considered that Mr Crouch’s many years of drug offending was a personal aggravating
7 R v Terewi [1999] 3 NZLR 62 (CA).
feature. In light of previous convictions, the Judge applied an uplift of four months’ imprisonment.
[8] The Judge awarded a 25 per cent discount for early guilty pleas. He also applied a reduction of five per cent for Mr Crouch’s drug dependency issues. The Judge acknowledged that drug dependency warranted a discount, but this was balanced against the numerous rehabilitative opportunities given to Mr Crouch. The final discount was 30 per cent.
[9] After applying the four-month uplift and 30 per cent discount, the Judge came to a final sentence of two years eight and a half months’ imprisonment.
Approach on appeal
[10] An appeal against sentence is an appeal against discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.8 The Court must dismiss the appeal in any other case.9
[11] In determining whether a sentence is manifestly excessive, the focus is on the sentence actually imposed, rather than the process by which the sentence is reached.10
Submissions
Appellant’s submissions
[12] Mr Harrison submits that the starting point was manifestly excessive and argues the most appropriate starting point was 18 months’ imprisonment. He refers to R v Smyth which suggested R v Terewi might be “revisited” in light of changing social attitudes about cannabis.11
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
9 Criminal Procedure Act 2011, s 250(3).
10 Tutakangahau, above, n 8, at [36].
11 R v Smyth [2017] NZCA 530 citing R v Terewi, above n 7.
[13] Mr Harrison states that the cannabis was not packaged in any identifiable deal bags nor was there any equipment found to justify a starting point in excess of 18 months. Rather, the bulk of cannabis was found in one plastic bag and different strains were found in different bags or containers. These factors pointed away from “an organised tinnie or $50 bag street level offending”. Mr Harrison submits that there was an overwhelming lack of evidence of a sophisticated street level operation which suggests Mr Crouch was only selling to a few close associates, rather than running a cannabis operation out of his house. He further suggests as Mr Crouch has his own wielding business, Mr Crouch does not live off the proceeds of supplying cannabis.
[14] Mr Harrison distinguishes Mr Crouch’s case, due to the absence of ammunition, from R v Ross which involved “a situation where a loaded shotgun with the safety catch off was found down the back of a couch”.12 Mr Harrison denies the firearm was “readily available” as the sawn-off shotgun was found between the head board and the mattress in Mr Crouch’s bedroom, and not in the living areas where the drugs were located.
[15] Mr Harrison suggests that there were other “reasonable explanations” as to why Mr Crouch refused to provide police access to his phone. Mr Harrison argues that the appellant may have refused to unlock his cell phone to police was not to hide the extent or level of his drug offending, but rather to hide the identity of the person who sold him the cannabis and methamphetamine.
[16] Mr Harrison says that the Judge placed undue reliance on Mr Crouch having a history of violence. Mr Crouch had only one conviction for fighting in a public place in 2008 which he says, cannot justify a conclusion that Mr Crouch has a history of violence.
[17] Mr Harrison submits that a discount greater than five per cent was called for given Mr Crouch’s severe addiction. Mr Harrison notes that Mr Crouch’s motivation to sell cannabis was due to his addiction. Whilst there was a commercial aspect to the sale of cannabis, Mr Harrison highlighted that most of the profit went towards funding the cost of methamphetamine.
12 R v Ross [2024] NZHC 160.
Respondent’s submissions
[18] Mr Webber submits that the end sentence reached was proportionate, within range and not manifestly excessive. He says that the Judge correctly categorised Mr Crouch’s cannabis offending as falling within band two of R v Terewi. He rejects the characterisation of the dealing as infrequent and says the discounts were appropriate in the circumstances.
Analysis
Starting point for possession of cannabis for supply
[19] R v Terewi is the tariff case for cannabis offending. Despite the appellant’s challenges to R v Terewi, it remains good authority and has been not revisited. Mr Webber notes that it had been relied upon and referred to by the Court Appeal regularly in the eight years since Smyth, including as recently as October 2024 in Hall v R.13 In R v Terewi, the Court of Appeal set out three categories related to cannabis offending:14
Category 1: consisted 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 was almost invariably dealt with by a fine or other non-custodial sentence. Where there had been supplies to others on a non-commercial basis, the monetary penalty would be greater and in some serious cases or for persistent offending, a term of periodic detention or even a short prison term might be merited.
Category 2: encompassed small-scale cultivation of cannabis plants for a commercial purpose i.e. with the object of deriving profit. The starting point for sentencing was generally between two and four years, but, where sales were infrequent and of very limited extent, a lower starting point might be justified (emphasis added).
[20] Mr Harrison accepts that Mr Crouch was selling cannabis and there was “some commerciality to it” but says it was a “small time commercial operation”. Mr Harrison says that Mr Crouch was not making a profit, suggesting any gain went to the cost of purchase of methamphetamine and to support his addiction.
13 Hall v R [2024] NZCA 532 at [26](b).
14 R v Terewi, above n 7, at [4].
[21] Mr Harrison submits that the dealing in which Mr Crouch was involved should justify an exception where the sentence is set below the range indicated in category two of R v Terewi. Mr Harrison suggests the lack of paraphernalia such as scales, scissors and cannabis packaging for dealing (as opposed to the plastic bags more usually associated with methamphetamine dealing) indicates that Mr Crouch was operating at a low level and was an infrequent dealer and only did so to a limited extent. I accept Mr Webber’s submission for the Crown that Mr Crouch pleaded guilty to the charge of possession of cannabis for supply. He did not seek a disputed facts hearing before sentence.
[22] The Judge made no error in inferring from the amount of cannabis found, the amount of cash (which has been forfeited) and the failure by Mr Crouch to give the police access to his phone, that the dealing was commercial. Mr Harrison suggested that Mr Crouch was protecting his methamphetamine supplier by refusing to give the phone details and additionally, the police could have obtained a warrant to search the phone. However, as Mr Webber submitted, the type of search that Mr Harrison suggests would not likely show messages via software applications which dealers often use to communicate, in order to avoid detection. It was open to the Judge to accept the strong inference of commercial dealing, particularly in association with the quantity of the drugs found and the presence of a sawn-off shotgun.
[23] Mr Harrison also suggests that Mr Crouch can be seen as being in a lesser role as opposed to a leading role in terms of the descriptions in Zhang v R. Zhang v R sets out descriptions of roles for the purposes of sentencing for methamphetamine dealing. I accept, as did the Judge, that Mr Crouch’s operation was at a low level but nevertheless, he made no error in concluding that Mr Crouch fell within category two of R v Terewi.
[24]The Crown also points to Habib v Police and Connolly v R. In Habib v Police,
the defendant received a starting point of two years where police found 311.8 g and
$2,890 in cash.15 In Connolly v R, a two-year starting point was taken where police found 150 g of dried cannabis packaged into sellable quantities, as well as electronic
15 Habib v Police [2018] NZHC 1224.
scales.16 Mr Crouch had significantly more cannabis than the defendants in
Habib v Police and Connolly v R but was given a two-year starting point.
[25] Mr Harrison refers to several cases where the defendants were given a starting point of less than two years’ imprisonment. In R v Te Poono, the defendant had 383 g of cannabis in “tinnies, snaplock bags and loose plant material” and was found to have electronic scales, rolls of tinfoil, scissors and $530 in cash.17 A starting point of 18 months’ imprisonment was taken. In Newton v Police, a starting point of 18 months’ imprisonment was set for offering to sell a total of 16 ounce-bags of cannabis worth $5,250, comprising “eight tinnies and 15 fifty dollar bags”.18 In Needham v Police, a starting point of six months was taken for possession of 10 plants, 236 g of dried cannabis, four mature dried plants, 631 g of frozen cannabis stalks and 47 g of cannabis discovered in a car.19 In R v Rauhihi, the defendant received a starting point of 15 months’ imprisonment for one charge of possession of cannabis for sale and one charge of cultivation of cannabis.20 In Devereux v Police, the Court considered that a starting point of 15 months should have been taken, given only six mature cannabis plants were located and the defendant had made limited sales.21 A starting point of 18 months’ imprisonment was set for the co-defendant for possessing 110.74 g of cannabis.
[26] These cases, however, are not appropriate comparisons and are fact specific. In Needham v Police, the defendant was charged with the cultivation of cannabis under s 9 of the Misuse of Drugs Act, rather than possession of cannabis for supply. R v Rauhihi can be distinguished on the basis that the Court found no evidence of actual sales in the form of cash at the address. In Newton v Police, the lead offence was offering to sell cannabis and there was no evidence of possession of cannabis for supply. In R v Te Poono, the defendant had taken cannabis from another address and attempted to sell the cannabis. R v Te Poono involved substantially less cash and
16 Connolly v R [2022] NZCA 499.
17 R v Te Poono [2020] NZHC 308.
18 Newton v Police [2019] NZHC 1245.
19 Needham v Police [2013] NZHC 688.
20 R v Rauhihi HC Palmerston North CRI-2008-1438, 1 May 2009.
21 Devereux v Police [2017] NZHC 167.
cannabis than in the present case, although some paraphernalia indicating commercial sales, such as scales, was also found.
[27] I am satisfied the Judge correctly assessed Mr Crouch’s cannabis offending as falling within band two of R v Terewi. The Judge made no error in setting the starting point for the offending.
Firearms uplift
[28] Mr Harrison refers to Ross v R where the Court upheld an uplift of 20 months’ imprisonment in respect of firearms offending.22 I do not consider Ross v R to be particularly useful in my assessment as to whether a 12-month uplift was appropriate in Mr Crouch’s offending. Ross v R relates to possessing a firearm while committing an offence under the Arms Act 1983.
[29] The Court of Appeal in Mills v R noted 12 to 18 months is an appropriate uplift for firearms offending associated with drug dealing.23 While there was no ammunition found at Mr Crouch’s address, nevertheless, the possession of a sawn-off shot gun is illegal in any circumstances. The possession of a firearm associated with drug dealing makes the possession more serious. The fact that it was found in a different room does not diminish the level of severity. The Court of Appeal in Perez v R, citing R v Corner, emphasised deterrence and denouncement as factors in sentencing of the possession of firearms associated with drug offending.24
[30] I agree with Mr Webber’s submissions that the Judge was correct to regard the unlawful possession of the sawn-off shot gun as being related to the drug offending. He notes that an unloaded firearm is inherently serious and will be considered dangerous to people who do not have knowledge that the firearm is unloaded. While acknowledging that an uplift of nine to ten months might better reflect the criminality for the firearm, Mr Webber submits however that if the uplift for the firearm was at the upper limit, it was offset by the Judge’s uplift for previous convictions which
22 Ross v R [2024] NZHC 160.
23 Mills v R [2016] NZCA 245 at [18] citing Fonotia v R [2007] NZCA 188, [2007] 3 NZLR 338 at [41]; and Haggie v R [2011] NZCA 221 at [23].
24 Perez v R [2015] NZCA 267 at [50]–[51] citing R v Corner CA291/87, 17 March 1988.
Mr Webber said should have been more like six months than the four months uplift applied.
[31] In my view, the uplift was in range and the Judge did not err in granting an uplift of 12 months for the unlawful possession of a firearm.
History of violence
[32] Mr Harrison criticised the Judge for referring to the appellant as “having a history of violence”. The Judge did not put it in those terms, rather referring to a “historical conviction” being “at the low end of this sphere” and “at the lower end of the scale.” The reference to the historical offence was in the context of correcting a mistake in the PAC report stating that Mr Crouch had no convictions for violent offending. The sentencing notes do not suggest that the Judge put any weight on what he referred to as a “historical conviction” in assessing the uplift for firearm possession.
[33] I am satisfied the Judge did not elevate the risk of the appellant by putting undue weight on the historical conviction for fighting in a public place.
Personal mitigating factors
[34] Mr Crouch reports that he has depended on drugs for 23 years and that he uses drugs for “self-medication”. He also successfully completed a residential alcohol and drug treatment programme in 2007. The drug dependency was recognised by the Judge in allowing a five per cent reduction. Mr Harrison points out that the addiction can be seen as a mental health issue. A mental health issue was recognised in Berkland v R as sometimes amounting to a “causative contribution” to the offending.25 While Mr Couch may have an addiction, there was no evidence sufficient to suggest a “causative connection” to the offending here. There is no evidence that Mr Crouch has suffered from criminogenic risk factors, such as poverty, poor educational outcomes, childhood trauma and chaotic home circumstances.26
25 Berkland v R [2022] NZSC 143; [2022] 1 NZLR 509 at [109].
26 At [162].
[35] Mr Crouch’s background, as the respondent notes, does not give rise the significant factors identified with the relevant defendant in Berkland. Mr Crouch has a business and a home, although he was described by Mr Harrison as a “functioning addict”. While Mr Crouch had attended a rehabilitation programme in 2007, that was almost 18 years ago — no credit is due for that. Mr Harrison submitted that Mr Crouch was now battling methamphetamine as well as cannabis addiction. However, the PAC report suggests he is able to control his use of substances and prefers to do his own rehabilitation rather than have “abstinence” forced on him. In any event, there are no concrete proposals for rehabilitation.
[36] The discount of five per cent for the drug addiction was within the appropriate range in the current circumstances.
[37] No point was taken over the four-month uplift for previous offending. Mr Harrison acknowledged that the uplift was appropriate. In my view, it was a modest uplift in light of the previous drug offending.
[38] The Judge, therefore, made no error in the discount applied for personal factors. The sentence, when viewed as a whole, is within the appropriate range and is not manifestly excessive.
Methodology
[39] On 26 March 2025, I issued a minute and drew counsel’s attention to the manner in which the Judge had calculated the final sentence. Following the methodology in Moses v R, personal and aggravating factors, together with any guilty plea discount, are each calculated as a percentage of the adjusted starting point for the offending.27 The Judge, instead, said:28
Thirty per cent from the original start point which was three years two months which is 38 months is 11.4 months and leaves you with two years 6.6 months remaining if it was taken from there, but regrettably for you, it must be taken from the adjusted starting point of three years six months leaving you
32.5 months which is an overall sentence of two years eight and a half months' imprisonment.
27 Moses v R [2020] NZCA 296; [2020] 3 NZLR 583 at [46].
28 Police v Crouch, above n 1, at [30].
[40] The Judge appeared not to follow the methodology suggested in Moses v R. In addition, there appears to be an arithmetical error made by the Judge. If the Moses v R methodology had been followed correctly, the outcome would have been two years six and a half months. Both counsel agree that an error occurred.
[41] I, therefore, correct the end sentence to two years six and a half months’ imprisonment, giving effect to the Judge’s intentions.29
Conclusion
[42] In light of the Judge’s arithmetical error, the appeal is allowed to correct the end sentence from two years and eight and a half months to two years six and a half months’ imprisonment. Otherwise, the appeal is dismissed for the reasons set out above, the sentence as corrected is not manifestly excessive.
Grice J
Solicitors:
O’Donoghue Webber, Nelson for the Respondent
29 See Tutakangahau v R, above n 8, at [36].
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