Devereux v Police - [2017] NZHC 167

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-105 [2017] NZHC 167

BETWEEN
JON-PAUL DEVEREUX

Appellant

AND

NEW ZEALAND POLICE First Respondent

DEPARTMENT OF CORRECTIONS Second Respondent

CRI-2016-409-140

BETWEEN BRETT JAMES DRAKE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 14 February 2017

Appearances:

M Starling for the Appellants
C Bernhardt and C Martyn for the Respondents

Judgment:

16 February 2017

JUDGMENT OF MANDER J

[1] The appellant, Jon-Paul Devereux, was convicted on charges of cultivating and selling cannabis, possessing methamphetamine, assaulting a female, intentional damage and breach of community work. He was sentenced to 11 months home
detention.1

1 Police v Devereux [2016] NZDC 16884.

[2] The appellant, Brett Drake, was convicted on charges of possessing cannabis for sale, possessing methamphetamine, and possessing a knife and an imitation firearm. He was sentenced to 26 months imprisonment.2

[3] Both appellants have appealed their sentences on the basis the starting point adopted in respect of their cannabis offending was too high and has resulted in manifestly excessive sentences. Their cases are quite separate and they were sentenced by different Judges, however, because of the common issue arising on their respective appeals, namely the appropriate application of the guideline judgment of R v Terewi, they have been heard together.3

Background

Mr Devereux

[4] In May last year the police executed a search warrant at Mr Devereux’s residence. They located cannabis growing in a shed behind the garage. Inside the shed were compartments containing trays of growing medium. One of the areas contained six cannabis plants nearing maturity being grown under lights. In the other compartment there were three trays of soil with cannabis seeds planted for germination. There were various filters and pieces of equipment used to try to avoid detection as a result of the usual cannabis odour.

[5] When spoken to by police about cultivating cannabis, Mr Devereux admitted that he had grown cannabis for a long time but this was only his second grow at the address since he had moved there late in the prior year. He admitted selling cannabis and that he typically would sell one $50 bag of cannabis to supplement his income, although at times he had sold as many as ten $50 bags in a week.

Mr Drake

[6] Mr Drake’s offending was detected as a result of a search of his vehicle. He
was found to be in possession of a knife, a BB gun, and 110.74 grams of cannabis in small bags. A set of silver scales were also found, and $3,120 in cash. Items

2 Police v Drake [2016] NZDC 23914.
3 R v Terewi [1999] 3 NZLR 62 (CA).

consistent with Mr Drake’s consumption of methamphetamine were located, and he

was also found to be in possession of 60 Ritalin tablets.

District Court sentencing

Mr Devereux

[7] In sentencing Mr Devereux, Judge Gilbert adopted a starting point of two years imprisonment. The Judge held:4

[11] In my view the cannabis operation that you were running could fairly be characterised as…

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.

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Details

Case: [2017] NZHC 167
Decision Date: 16 February 2017

CaseChat Overview and Summary

The High Court of New Zealand heard appeals from Jon-Paul Devereux and Brett Drake against their respective sentences for cannabis-related and other criminal offences. Devereux was convicted of cultivating and selling cannabis, possessing methamphetamine, assaulting a female, intentional damage, and breach of community work, and was sentenced to 11 months' home detention. Drake was convicted of possessing cannabis for sale, possessing methamphetamine, and possessing a knife and an imitation firearm, and was sentenced to 26 months' imprisonment. Both appellants argued that the starting point for their cannabis offences was too high, resulting in manifestly excessive sentences.

The court was required to decide whether the starting points adopted by the sentencing Judges were appropriate in the circumstances of each case and whether the sentences were manifestly excessive. The court noted that the District Court Judges had correctly applied the guideline judgment of R v Terewi in assessing the commerciality of the cannabis offences. The court examined the nature of the cannabis operations and the sales made by the appellants to determine whether the starting points were appropriate. The court also considered relevant sentencing authorities to gauge whether the starting points adopted were excessive.

The court found that the District Court Judges had erred in adopting a starting point of two years' imprisonment for Devereux's cannabis offending, which was towards the lower end of band 2 in R v Terewi. A starting point of 15 months would have more adequately reflected the level of Devereux's offending. The court adjusted the starting point and the cumulative term for the other charges, resulting in an end sentence of 16 months' imprisonment, which was commuted to eight months' home detention. The court allowed Devereux's appeal and set aside the original sentence in favour of eight months' home detention.

In Drake's case, the court found that there was an identifiable error in the District Court Judge's observation that terms of imprisonment for commercial supply could only be achieved as a result of deductions from the base starting point of two years. The court substituted a lesser starting point of 18 months' imprisonment, taking into account the level of offending and the approach to sentence in R v Gray. Applying the District Court's approach to the balance of the sentencing exercise, the court arrived at an end sentence of 20 months' imprisonment. The court allowed Drake's appeal and set aside the original sentence in favour of 20 months' imprisonment on the charge of possession of cannabis for sale.

The court's final orders were that the original sentence of 11 months' home detention for Devereux was set aside and replaced with one of eight months' home detention, while the original sentence of 26 months' imprisonment for Drake was set aside and substituted with one of 20 months' imprisonment on the charge of possession of cannabis for sale.

Orders