Dingemans v The Queen - [2013] NZCA 355

IN THE COURT OF APPEAL OF NEW ZEALAND

CA118/2013
[2013] NZCA 355

BETWEEN	BOBBY DINGEMANS Appellant
AND	THE QUEEN Respondent

Hearing:	31 July 2013
Court:	Harrison, Panckhurst and Ronald Young JJ
Counsel:	B L Sellars for Appellant J M Jelas for Respondent
Judgment:	7 August 2013 at 2.30 pm

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of two years and one month imprisonment is quashed.
CIn substitution a term of five months home detention is imposed on the conditions set out in this judgment at [15].

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REASONS OF THE COURT

(Given by Harrison J)

Introduction

On 19 February 2013 Bobby Dingemans pleaded guilty in the District Court at Manukau to three charges of supplying equipment or materials for cultivating cannabis. Judge Andrée Wiltens sentenced him to two years and one month imprisonment.[1] Mr Dingemans now appeals on the ground that the sentence imposed was manifestly excessive.

Background

[1]R v Dingemans DC Manukau CRI-2012-004-5329, 19 February 2013.

The facts are slightly unusual and well publicised. Mr Dingemans was employed as the Auckland Area Manager of a retailer called Switched On Gardener (SOG). SOG is a nationwide chain of indoor growing stores. The police targeted the retailer and its employees when conducting a covert investigation into the sale and supply of growing equipment and materials to cannabis growers.
The police categorised the offenders within SOG into three tiers. Counsel and sentencing judges in various jurisdictions have proceeded upon an acceptance of that categorisation. Tier 1 included SOG’s director, Michael Quinlan, and national managers; Tier 2 comprised area managers including Mr Dingemans and Brendon Lineham; and Tier 3 was made up of employees or managers of individual stores. Mr Dingemans supervised five Auckland shop managers and retail assistants and worked in the Whangarei store; he also reported to the Tier 1 management team.
Count 1 was the most serious of the three which Mr Dingemans faced. It was of a representative nature, alleging that over a two year period Mr Dingemans supplied equipment or material capable of being used for cultivating cannabis knowing that it was to be used for that purpose. Other than this generic description, the summary of agreed facts provides little information. In particular, there were no details about volumes of material and equipment supplied by the stores under Mr Dingemans’ control or of financial revenue or net profit attributable to criminal activities. The pre-sentence report records Mr Dingemans’ advice that he was subject to directions to sell products and meet sales targets.
Counts 2 and 3 were relatively minor, alleging that on two separate occasions Mr Dingemans sold books on indoor marijuana horticulture and hydroponics.

Starting point

Judge Andrée Wiltens enjoyed a particular familiarity with SOG’s modus operandi. He had presided at the lengthy trial of Mr Quinlan and other Tier 1 offenders. Subsequent to sentencing Mr Dingemans, the Judge sentenced Mr Quinlan to four years and three months imprisonment on his conviction following guilty verdicts at trial on 16 representative counts…

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 Dingemans v The Queen

Details

AGLC: Dingemans v The Queen [2013] NZCA 355
Case: [2013] NZCA 355
Decision Date: 7 August 2013 at 2.30 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Bobby Dingemans has appealed against his sentence, which was imposed by Judge Andrée Wiltens in the District Court at Manukau. Dingemans was found guilty of three charges of supplying equipment or materials for cultivating cannabis, and was sentenced to two years and one month imprisonment. The central issue in this appeal is whether the sentence imposed was manifestly excessive. The Court considered the starting point for sentencing, which was based on the sentences given to other offenders in similar cases, and the discounts for Dingemans' guilty plea and time already served. The Court concluded that the starting point should have been no more than two years imprisonment, rather than the two years and eight months imposed by the District Court. As a result, the Court quashed the original sentence and imposed a term of five months home detention with specific conditions.

The Court of Appeal found that the starting point for Dingemans' sentence should have been no more than two years imprisonment, given the nature of his offending and the fact that he was not convicted of cannabis dealing or cultivation for his own financial benefit. The Court also found that the discount for Dingemans' guilty plea was inadequate, as it should have been around 20 per cent rather than the 22 per cent applied by the District Court. After taking into account the appropriate starting point, the discount for the guilty plea, and the time already served by Dingemans, the Court determined that a term of five months home detention was an appropriate alternative to imprisonment. The Court also set out specific conditions for the term of home detention, including restrictions on alcohol and drug consumption, and requirements for Dingemans to remain at a specified address during the term.

Orders