IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY
CRI-2015-418-000003 [2015] NZHC 1213
BETWEEN DAMINGO JOSEPH DA SILVA Appellant AND
NEW ZEALAND POLICE Respondent
Hearing: 29 May 2015 Appearances:
M Zintl for Appellant
D L Elsmore for RespondentJudgment:
3 June 2015
JUDGMENT OF GENDALL J
Introduction
[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…
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CaseChat Overview and Summary
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.
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