[1] This is an appeal against sentence for drug offending and assault offences, to which the appellant, Damingo Joseph Da Silva (Mr Da Silva) pleaded guilty.

[2] On 29 August 2014, Mr Da Silva confronted a male he knew in a West Coast supermarket. This man fell victim to an assault by Mr Da Silva, resulting from the latter’s belief that this acquaintance had made disparaging comments about Mr Da Silva’s children. When the man refused Mr Da Silva’s request to go outside and talk, he was punched in the face, which knocked him unconscious. The victim suffered severe bruising and cuts to his face, near his eye.

[3] Later, on 17 October 2014 whilst he was on bail for the offending noted above, the Police went to Mr Da Silva’s home. Upon their arrival, an elaborate cannabis operation was discovered in a large shipping container next to the house. A total of 48 well-manicured, mature cannabis plants were being grown under lights.
Mr Da Silva also had in his possession cannabis oil. He claimed the plants were for

DA SILVA v NEW ZEALAND POLICE [2015] NZHC 1213 [3 June 2015]

his personal use. Finally, Police located a number of utensils for smoking the cannabis and cannabis oil.

[4] Mr Da Silva came before Judge Couch in the District Court at Greymouth for sentencing on 14 April 2015.1 In total, he received a sentence of 19.5 months’ imprisonment, consisting of:

(a) Assault:2 six months’ imprisonment imposed;

(i) Starting point of eight months’ imprisonment (considered to be

near to the most serious type of assault);

(ii)Discount of two months (25 per cent) for the prompt entry of a guilty plea;

(iii) End sentence of six months’ imprisonment imposed;

(b) Cultivation of cannabis:3 one year, one month and fourteen days’

imprisonment (cumulative);

(i) Starting point of 14 months’ imprisonment;4

(ii)Uplifted by four months by the aggravating features that the operation continued while Mr Da Silva was on bail for the assault charge and previous serious drug offending involving cannabis;

(iii)Discount of four and a half months for the prompt entry of a guilty plea;

(iv) End sentence of 13.5 months imposed;

1      Police v Da Silva [2015] NZDC 6263.
2      Crimes Act 1961, s 196 (maximum penalty: one year imprisonment).
3      Misuse of Drugs Act 1975, s 9(1) (maximum penalty: seven years’ imprisonment).
4      Judge Couch observed that the offending did not fit well into either category one or category two of R v Terewi [1999] 3 NZLR 62 (CA).

(c) Possession of cannabis oil:5 one month (concurrent); (d) Possession of utensils:6 one month (concurrent)

[5] Mr Da Silva now seeks to appeal the sentence on two grounds. First he takes the view that the…

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 Da Silva v Police

Details

AGLC: Da Silva v Police [2015] NZHC 1213
Case: [2015] NZHC 1213
Decision Date: 3 June 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Damingo Joseph Da Silva sought to appeal the sentence imposed by Judge Couch in the District Court at Greymouth. Mr Da Silva had pleaded guilty to assault and drug offending, and had been sentenced to 19.5 months’ imprisonment. The appeal raised two issues: firstly, whether the sentence was manifestly excessive; and secondly, whether the District Court Judge had erred in not imposing a sentence of home detention.

The court found that the starting point for the sentence for drug cultivation was correctly set at 14 months, and that the uplifts applied were appropriate. Mr Da Silva's previous drug offending and the fact that he continued to cultivate cannabis while on bail for the assault charge warranted an uplift. The court also found that the discount for the guilty plea was generous, and that the end sentence of 19.5 months’ imprisonment was within the available range. The court further found that there was no material error in the District Court Judge’s refusal to impose a sentence of home detention. The court was of the view that home detention was not a suitable sentencing option in this case, given the seriousness of the offending and the fact that this was Mr Da Silva’s third serious drug conviction.

The appeal was dismissed. The sentence imposed by Judge Couch was within the available range and there was no rational basis for challenging the refusal to sentence Mr Da Silva to home detention.

Orders