Evans v The King
[2025] NZHC 2815
•26 September 2025
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2025-419-000075
CRI-2025-419-000076 [2025] NZHC 2815
BETWEEN JASON EVANS
Appellant
AND
THE KING
Respondent
Hearing: 17 September 2025 Appearances:
J J Rhodes for Appellant
A S C Alcock for Respondent
Judgment:
26 September 2025
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 26 September 2025 at 11am.
………………………… Registrar/Deputy Registrar
Solicitors:
J Rhodes, Auckland
Hamilton Legal Ltd, Hamilton
EVANS v R [2025] NZHC 2815 [26 September 2025]
Introduction
[1] Jason Evans appeals against the sentence imposed by Judge A I M Tompkins in the District Court at Hamilton on 21 July 2025 in relation to:1
(a)one charge of cultivation of cannabis (representative);2
(b)one charge of manufacturing cannabis oil;3
(c)two charges of possession of an explosive (ammunition);4
(d)one charge of possession of prescription medicines (steroids);5
(e)one charge of unlawful possession of a firearm6
(f)one charge of possession of a prohibited magazine;7
(g)one charge of unlawful possession of a non-prohibited magazine or part;8
(h)one charge of possession of cocaine (simpliciter);9 and
(i)one charge of possession of methamphetamine (simpliciter).10
1 R v Evans [2025] NZDC 17724.
2 Misuse of Drugs Act 1975, s 9(1) and (2); maximum penalty seven years’ imprisonment.
3 Misuse of Drugs Act, s 6(1)(b) and (2)(b); maximum penalty 14 years’ imprisonment.
4 Arms Act 1983, s 45(1)(b); maximum penalty four years’ imprisonment and/or a $5,000 fine.
5 Medicines Act 1981, ss 43(1) and 78; maximum penalty three months’ imprisonment or a
$500 fine plus a further fine of $50 for every day or part-day during which the offence has continued.
6 Arms Act, s 45(1)(b); maximum penalty four years’ imprisonment and/or a $5,000 fine.
7 Arms Act, s 50B; maximum penalty two years’ imprisonment.
8 Arms Act, s 22A; maximum penalty $10,000 fine.
9 Misuse of Drugs Act, s 7(1)(a) and (2)(a); maximum penalty six months’ imprisonment
and/or a $1,000 fine.
10 Misuse of Drugs Act, s 7(1)(a) and (2)(a); maximum penalty six months’ imprisonment
and/or a $1,000 fine.
Background
[2] Mr Evans built a structure in the swamp lands surrounding Lake Waahi and resided there for at least three weeks while he tended to 1,000 cannabis plants which were separated into six different plots. This was an operation that he was involved in with others but Mr Evans was the only person charged in respect of the cultivation of these particular plants.
[3] In February 2022, police located the cannabis plants after a police helicopter flew over the area. That is the obvious risk with large cannabis plantations outdoors. A small plantation of only a few plants for personal use is unlikely to attract such attention.
[4] As a result, a search warrant was executed at Mr Evans’ address, locating a number of items including cannabis oil, steroids and ammunition.
[5] In 2025, while Mr Evans was on bail for the 2022 offending, a fire was discovered at his bail address. Police were alerted due to the fire being suspicious.
[6] Fire and Emergency New Zealand alerted police that they had located a firearm under a bed in the main bedroom when searching for a cat. As a result, a search warrant was obtained and executed.
[7] During the execution of the search warrant a number of items were found, including 1.3 grams of cocaine, 172 milligrams of methamphetamine, a semi-automatic .22 long rifle firearm, plans for manufacturing firearms, and numerous magazines and ammunition, some of which were prohibited.
The sentencing decision
[8] The sentencing Judge set out the facts in accordance with the summary of facts, saying that Mr Evans built and operated a makeshift structure on the shores of Lake Waahi which was used for a cannabis growing operation discovered by the police
helicopter. 1,000 cannabis plants were discovered growing in six different plots around the lake, which were accessible by boat.11
[9] The Judge recorded that Mr Evans admitted to harvesting about $200,000 worth of cannabis. When Mr Evans’ home was searched, 15 bottles of cannabis oil containing approximately 500 millilitres each were discovered, along with other small quantities of cannabis oil, a quantity of hash, rounds of ammunition and associated materials.12
[10] The Judge set out the contents of the pre-sentence report (PAC report), which was not favourable. The report writer was unable to ascertain whether Mr Evans regrets the offending but recommended imprisonment, identifying substance abuse, anti-social associates and anti-social attitudes of entitlement as factors underlying the offending.13
[11] The Judge referenced the sentencing of Mr Evans’ co-offender, noting he was advised that the co-offender had received a starting point of two years’ imprisonment for the lead offence of cannabis cultivation. The Judge recorded that Mr Rhodes, appearing for Mr Evans, accepted that there should be an uplift from the starting point in Mr Evans’ case to represent the cannabis oil offending in particular.14
[12] The Judge set out that the Crown was seeking a much higher starting point of six years’ imprisonment with an uplift of three months to reflect the remaining charges. The Judge said that the overriding issue of parity with the co-offender meant that the starting point for the cultivation of cannabis should be two years.15
[13] An uplift of one year was adopted for the manufacturing of oil charge and the other matters revealed by police upon searching the house, leading to an adjusted starting point of three years’ imprisonment for the offending discovered in 2022 as a whole.16
11 R v Evans, above n 1, at [1].
12 At [2].
13 At [4].
14 At [4].
15 At [5].
16 At [5].
[14] The Judge recorded that Mr Rhodes sought three discrete discounts to reflect personal circumstances, including the guilty plea and the fact that Mr Evans had spent “about a year” on electronically monitored (EM) bail. The Judge said that would bring the end sentence down to about 18 months’ imprisonment.17
[15] The Judge went on to say that while on bail Mr Evans then committed further, and on one view more serious, firearms and drug-related offending. The firearms charges, which the Judge acknowledged had resulted in guilty pleas at the first available opportunity, included possession of a .22 calibre rifle without lawful, proper and sufficient purpose, possession of ammunition, and both possession of a prohibited magazine and possession of a magazine without holding a firearms license.18
[16] The Judge recorded that Mr Evans was also for sentence on charges of possession of methamphetamine simpliciter and possession of cocaine simpliciter.19
[17] The Judge noted that the second set of offending occurred while Mr Evans was on bail but said it was not a case where Mr Evans was utilising firearms to protect a drug growing or distribution operation. Mr Evans’ submission was that he had the firearms for a misguided self-protection purpose. The Judge then said that in his view a cumulative term of nine months’ imprisonment should be imposed for the 2025 offending, bringing the end sentence to two years and three months’ imprisonment.20
Grounds of appeal
[18] Mr Evans’ position is that the sentence is manifestly excessive. He submits that:
(a)while the starting point taken for the lead 2022 cannabis offending was appropriate, the uplifts applied to the starting point were too high, both separately and cumulatively; and
(b)the discounts applied were insufficient.
17 At [6].
18 At [7].
19 At [8].
20 At [9].
[19] The Crown submits that the focus on appeal is whether the overall sentence is manifestly excessive, regardless of how it is structured. The Crown submits that the sentence is within the available range.
Approach on appeal
[20] An appellant may appeal against sentence as of right under s 244(1) of the Criminal Procedure Act 2011.
[21] An appeal against sentence must be allowed if the appellate court is satisfied that for any reason there is an error in the sentence imposed and that a different sentence should be imposed.21 In any other case, the appellate court must dismiss the appeal.22 Sentencing is not a science, and an appellate court will not ordinarily intervene unless the end sentence is outside the range that was available to the sentencing judge.23 An appellate decision is focused on the end result rather than the process by which the sentence was reached.24
[22] When allowing an appeal on the basis that there was an error in the sentence imposed, the appellate court must set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; vary the sentence or any part of the sentence or any condition of the sentence; or remit the sentence to the court that imposed it.25
[23] The appellate court does not start afresh or simply substitute its own opinion for that of the sentencing judge. Rather, it must be shown that there was an error, whether intrinsically or because of additional material submitted on appeal.26 The court will not intervene where a sentence imposed is within a range that could be properly justified by accepted sentencing principles.27
21 Criminal Procedure Act 2011, s 250(2).
22 Section 250(3).
23 Palmer v R [2016] NZCA 541 at [17]; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
24 Kumar v R [2015] NZCA 460 at [81].
25 Criminal Procedure Act, s 251(2).
26 Tutakangahau v R, above n 23, at [30], citing R v Shipton [2007] 2 NZLR 218 (CA) at [139].
27 See Tutakangahau v R, above n 23, at [36].
Discussion
[24] The end sentence of two years and three months’ imprisonment was structured as follows:
(a)a starting point of two years’ imprisonment for the cultivation of cannabis;
(b)a one-year uplift for the manufacturing of oil charge and other charges arising from the search in 2022;
(c)discounts for personal circumstances, guilty plea and time spent on EM bail, reducing the sentence to 18 months’ imprisonment (effectively, a total discount of 18 months); and
(d)a cumulative uplift of nine months’ imprisonment for the 2025 offending.
[25] Mr Evans sought a discount of 15 months for the time spent on EM bail alone. The sentencing Judge noted this as being a discount for “about a year spent on electronically monitored bail”.28 I am advised that it was clarified after the decision was delivered that Mr Evans had in fact been on bail for nearly three years. The Crown says that after delivering the sentencing decision, the Judge clarified that he had intended to impose a 12-month discount for time on restrictive bail. This is not recorded in the decision.
[26] Mr Evans submits that this means six months of the 18-month discount applied to the adjusted starting point for the first set of offending (about 17 per cent of that adjusted starting point) reflected the other personal mitigating factors raised, including guilty plea, impact of addiction, and other personal and background factors.
[27] In respect of the cumulative nine-month uplift for the 2025 offending, Mr Evans submits that no discounts nor totality considerations were identified, and
28 At [6].
the uplift is excessive when compared to other cases where firearms were used to facilitate drug offending. Mr Evans says that was not the motivation in the present case.
[28] In assessing the starting point, both parties rely on the guideline case of R v Terewi.29 Terewi sets out three categories or bands against which to assess the scale and commercial nature of cannabis offending.30
[29] There has been recognition by the Court of Appeal that Terewi may be outdated and might require reconsideration.31 As with other guideline decisions, it “should not be applied slavishly or in a mechanistic way”.32
[30]The categories set out in Terewi are as follows:33
Category 1 consists 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 is almost invariably dealt with by a fine or other non-custodial sentence. Where there have been supplies to others on a non-commercial basis the monetary penalty will be greater and in more serious cases or for persistent offending a term of periodic detention or even a short prison term may be merited…
Category 2 encompasses small-scale cultivation of cannabis plants for a commercial purpose, ie with the object of deriving profit. The starting point for sentencing is generally between 2 and 4 years but where sales are infrequent and of very limited extent a lower starting point may be justified.
Category 3 is the most serious class of such offending. It involves large-scale commercial growing, usually with a considerable degree of sophistication and organisation. The starting point will generally be 4 years or more.
[31] Mr Evans submits that the two-year starting point was appropriate and not lenient given the lack of sophistication and the fact that there were two offenders so the yield of cannabis would be split. Mr Evans also submits that the primary motivation was not commercial but was to feed his need for cannabis for medicinal reasons. I note, however, that when interviewed Mr Evans referred to the cannabis
29 R v Terewi [1999] 3 NZLR 62 (CA).
30 At [4].
31 Anderson v R [2022] NZCA 472 at [20], citing R v Smyth [2017] NZCA 530 at [17]. See also
Ramsey v R [2013] NZCA 277 at [39]; and Smith v R [2022] NZCA 606 at [12].
32 Anderson v R, above n 31, at [20], citing Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [48].
33 At [4].
being worth about $200,000, and I struggle to accept that cultivation of 1,000 plants is anything but commercial.
[32] Mr Evans submits that there are no indicia of dealing but in my view all that can be said is that there is no indication of street-level dealing. Mr Evans was the cultivator but there were others involved and the lack of indicia of street-level dealing is not an indication that the operation was not commercial — it is just an indication of his role.
[33] The decision of Terewi is now an old decision but it is still a guideline judgment and the maximum penalties for the offences to which it relates have not changed. I cannot disregard the sentencing bands set out in Terewi, although I can acknowledge the guidance provided by more recent cases dealing with similar drug offending where that guidance does not conflict with Terewi. I can also acknowledge the need for consistency with more recent sentences for similar offending.
[34] In this case Mr Evans pleaded guilty to cultivation of 1,000 plants and made reference to the value of the cannabis. This can only be offending in category 3 of Terewi where the starting point is four years or more. Even if this offending could be placed within category 2 (which I do not think it can), the two-year starting point is at the bottom of that band.
[35] Mr Evans’ offending does need to be compared with recent cases. The decisions that I regard as most helpful are R v Ashby and Houghton v R — both decisions of Lang J.34 Ashby was decided in 2012 and involved cultivation of 100 usable plants although the actual number of plants was greater, at about 500. There was evidence of street-level dealing and associated cannabis oil offending. A starting point of four years and four months was taken for the cannabis cultivation and an uplift of eight months applied for the manufacture of cannabis oil. The cannabis oil was in a much smaller quantity than the present case.
[36]Houghton was decided in 2020 and involved seven large cannabis plants and
96 small plants, in addition to other cannabis plant material. The level of
34 R v Ashby [2012] NZHC 415; and Houghton v R [2020] NZHC 2819.
commerciality was not great. A starting point of 21 months for Mr Houghton’s cannabis charges was upheld on appeal.
[37] I have also considered the case of R v Anderson which involved a 60-year-old who had grown cannabis for medicinal and recreational purposes but also for sale.35 There were 46 plants located in an indoor growing operation. The offender in that case was essentially a first offender. A starting point of 21 months was applied in respect of the offender’s two cannabis charges. This case appears to have turned significantly on its facts and the Judge took a merciful approach.
[38] In the present case the sentencing Judge was concerned about parity with a co-offender, but that co-offender was not charged in respect of the 1,000 plants. He was instead charged in relation to a smaller indoor operation. Mr Evans did have the benefit of a lower starting point than might have been taken. I agree that the two-year starting point was lenient and lower than the available range.
[39] The Crown submits that the uplift of one year for the cannabis oil offending was also unremarkable, relying in particular on the case of Hillman v R which was a 2010 Court of Appeal case where cannabis oil capsules weighing 13.9 grams were found in the appellant’s handbag along with an amount of cannabis.36 In that case the Court of Appeal said that the uplift of one year in relation to the cannabis oil charge was unexceptional and if anything the offence could have been viewed more seriously on account of the intention to smuggle capsules into prison.37
[40] The factor of smuggling capsules into prison is obviously not an issue in the present case. However, the amount of cannabis oil was significantly higher than in Hillman, although not as high as the Judge appeared to believe.
[41] Judge Tompkins only referred to the first part of the summary of facts where it is recorded that 15 bottles each containing 500 millilitres of oil were found. A later paragraph of the summary of facts indicates that the oil was in the process of drying and would have reduced down to somewhere between 650 millilitres and one litre of
35 R v Anderson [2022] NZHC 2360.
36 Hillman v R [2010] NZCA 337.
37 At [21].
oil in total. Mr Evans submits that this may have led to an error in assessing the appropriate uplift; however, I note that the actual quantity of cannabis oil is still a significant amount — 650–1,000 millilitres compared to the 13.9 grams in Hillman.
[42] Mr Evans submits that the cannabis oil was for his personal use as a result of a drug addiction exacerbated by medical issues which were relieved by cannabis. The charge of manufacturing cannabis oil is aggravated where the manufacture is clearly commercial, but commerciality is not an element of the offending. Wherever large amounts of cannabis oil are manufactured, there is always a risk of supply. The offence itself, however, is aimed at criminalising manufacture, and not only commercial manufacture.
[43] Nevertheless, it is artificial to overlook the very significant amount of oil that was in the process of being manufactured. Mr Evans had a huge number of plants grown outdoors which produced a large amount of cannabis leaf or cabbage of which a kilogram was located at his address, and which he admitted would be turned into oil. That is in addition to the cannabis oil solution that was located and would have yielded about a litre of cannabis oil, which is a Class B controlled drug.38
[44] The 2025 offending is concerning because it was committed whilst on bail and was significantly separate in time.
[45] The Crown submits that an appropriate starting point for the 2025 offending on a standalone basis would be two years and six months’ imprisonment.
[46] The 2025 drug offending itself was not commercial although the drugs were categorised as Class A rather than Class B or C. That is significant because it means that Mr Evans was engaging with people who could supply him with those drugs while on bail. More concerning is the fact that Mr Evans was in possession of an unlawful firearm which was not only unlawful because he is not permitted to have a firearm, but also because it was a.semi-automatic .22 long rifle firearm which has no legitimate purpose. Mr Evans also had other unlawful firearm parts, and he had ammunition.
38 Misuse of Drugs Act, sch 2.
[47] Mr Evans has a 2020 conviction for unlawfully carrying an imitation firearm. He also has older convictions dating back to 2012 and earlier, and although they are dated, they are relevant. They include cultivation of cannabis, possession of cannabis oil, possession of cannabis plant, unlawfully carrying or possessing a firearm, possession of cannabis for supply, possession of ecstasy for supply, possession of methamphetamine for supply, possession of LSD for supply, and in 2006 another charge of unlawfully possessing a firearm. There are further methamphetamine charges, and in 2003, another charge of unlawfully possessing a firearm. Mr Evans’ criminal history shows repeated similar offending. It must be acknowledged that there was a reduction in offending between 2012 and 2018; however, Mr Evans resumed offending in 2018.
[48] The PAC report states that events over the last five to six years strongly indicate that Mr Evans actively engages with anti-social associates. He acknowledged that he and his co-offender co-planned the cannabis growing operation. Mr Evans minimised his involvement with firearms when speaking to the report writer, and the report writer said that he presented with a sense of entitlement and an attitude supportive of anti-social behaviour.
[49] The fact that methamphetamine and cocaine were located in 2025 while Mr Evans was on bail shows that the PAC report writer’s assessment was likely perceptive.
[50] While it is said that Mr Evans has made efforts at rehabilitation, the weight I can give to this factor is clearly affected by the fact that he was charged with offending on bail, including firearms offending which is relatively serious. There is a clear indication that despite the rehabilitation, Mr Evans was continuing to engage with associates who were not prosocial.
[51] Sentencing is a matter of discretion and there is room for a difference of approach. In this case, however, when I stand back and look at the overall starting point reached, I do not consider that the adjusted starting point arrived at was manifestly excessive — I consider it was below the available range. I would have reached the same conclusion even if the nine-month uplift for the 2025 charges had
been added to the starting point for the first set of offending instead of being applied at the end of the sentencing exercise.
[52]I turn now to consider the credits applied.
[53] A 12-month credit for time spent on EM bail appears to have been applied. Mr Evans was on EM bail for a period of three years; however, the appropriate discount is inevitably affected by the fact that he offended while on EM bail.
[54] At the time of sentencing, Mr Evans had spent 191 days in pre-sentence detention and 1,041 days on EM bail. This is approximately 35 months spent on EM bail — almost three years. Over two years of that time were on 24-hour curfew with no breaches at all.
[55] Mr Evans concedes that a 12-month discount in relation to time spent on strict bail conditions is likely not appealable in itself but says that, coupled with inadequate credits for guilty plea and other factors, the level of credit applied for the time on restrictive bail was a factor that resulted in a manifestly excessive sentence.
[56] The length of time spent on EM bail reflects the delay in resolution of this matter. Mr Evans notes various reasons for the delay and says that the delay cannot be solely attributed to him. Mr Evans had a communication assistant ordered in relation to these matters. It is submitted that it was difficult to take instructions, with in-person meetings required and care needing to be taken to explain options.
[57] Mr Evans first offered to plead guilty to the 2022 charges in October 2023. At that stage, he was facing an additional charge of possession of cannabis for sale, relating to the cannabis cabbage that was found in his garage. This remains referred to in the agreed summary of facts; however, Mr Evans’ position was that this was cabbage, and therefore not capable of sale in its own right. It was part of the manufacture of cannabis oil, to which charge he has separately pleaded guilty.
[58] The Crown rejected this resolution initially, indicating that it would proceed to jury trial in relation to that one charge.
[59] The Crown subsequently agreed to resolution in August 2024, with pleas being entered that same month. The resolution was exactly as proposed by Mr Evans almost a year prior. Mr Evans submits that this delay was solely caused by the Crown. Mr Evans was always willing, and in fact offered, to plead guilty to the charges that he did not dispute subject to a disputed facts hearing as to the number of plants he was responsible for cultivating.
[60] Around half of the plots/plants found around the lake were in a localised area, around where Mr Evans’ makeshift shelter was set up. Several other plots and the other half of the plants were found on the opposite side of the lake. Mr Evans raised a dispute as to whether the Crown could prove he was responsible for cultivation of the entirely separate plots.
[61] The matter was set for a disputed facts hearing, but that hearing was adjourned several times by the Court. That was not Mr Evans’ fault but the fact that he did dispute matters that he eventually accepted affects the credit available for early guilty plea. The Court cannot look behind the eventual plea as Mr Evans’ submissions invite the Court to do.
[62] Mr Evans says that a discount for guilty plea of 15 per cent should have been applied because the disputed facts were resolved without the need for a disputed facts hearing, and the more recent charges attracted guilty pleas at the first opportunity.
[63] The Crown submits that in circumstances where it took Mr Evans nine months after entering guilty pleas to fully acknowledge responsibility for cultivating the 1,000 cannabis plants, the appropriate guilty plea discount was limited to five per cent. The Crown submits that even if the appropriate guilty plea discount was higher than five per cent, the absence of a more substantial reduction for guilty plea is offset by the absence of an uplift for offending on bail and a lenient approach to the starting point.
[64] The Crown says that, assuming five per cent for guilty plea was appropriate, the remainder of the 18-month discount awarded, reflecting other personal mitigating
factors, would amount to 12 per cent of the three-year adjusted starting point adopted by the sentencing Judge.
[65] I agree with Mr Evans that a five per cent credit for guilty plea was too low, but it is impossible to say that the Judge applied five per cent for that factor. Rather, the Judge applied a global approach for disparate factors including guilty plea, deprivation and addiction.
[66] I disagree with Mr Evans’ suggestion that the Judge did not account for totality. The nine-month uplift for the 2025 offending was applied to meet totality considerations. The alternative would have been a cumulative sentence with a starting point of about 20 months’ imprisonment.39
[67] The structure of this sentencing decision invited an appeal because the level of discrete discounts is not set out. It would have been appropriate for the Judge to quantify the level of discount for guilty plea and other factors, but the Judge’s global approach also included an absence of any uplift for offending on bail and there was no discrete uplift for previous offending, which was clearly available.
[68] The sentencing structure set out in Moses v R is designed to ensure that there is consistency between sentences and that discounts for factors such as time spent on restrictive bail, guilty plea and other personal mitigating factors are applied consistently.40 I could not be sure that the sentence was within the available range without undertaking that exercise and reaching a view as to the appropriate sentence by applying the Moses methodology.
[69] When I undertake that exercise, I reach the view that the starting point of two years’ imprisonment for the cannabis cultivation was lenient, and the parity considerations taken into account did not in fact apply. Given the Terewi bands, the very lowest starting point for cultivation of 1,000 plants would be three years. That is well below the four-year minimum suggested in Terewi for offending in category 3
39 In arriving at this conclusion, I have had regard to other cases involving firearms offending, including MacDonald v New Zealand Police [2024] NZHC 3106; Haeta v R [2024] NZHC 2094; and Campbell v R [2022] NZCA 579.
40 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
but reflects the relative lack of sophistication and the need for consistency with more recent cases.
[70] The uplift for the cannabis oil offending was not manifestly excessive. Whatever amount the Judge thought was involved, the actual amount of about 650 millilitres to one litre of cannabis oil is a significant amount.
[71] The nine-month uplift for the possession of the unlawful firearm and the associated firearms Class A drug possession charges was modest. Firearms offending is rife and there is a need for denunciation and deterrence. I do not accept that a claim an unlawful firearm is required for self-defence should lead to a discount for possession of prohibited semi-automatic firearms. The carriage or possession of prohibited semi-automatic firearms for any purpose, including self-defence, cannot be condoned in the face of rising gun violence.
[72] On a standalone basis a starting point in the region of twenty months to two years’ imprisonment could have been imposed for the unlawful possession of such a weapon41. This was not simply possession of a firearm by a person without a firearms licence; this was possession of a firearm which is itself a prohibited weapon.
[73] An uplift for the fact the offending was on bail and an uplift for the previous history of extensive and similar offending was available but not applied by the sentencing Judge. The appropriate uplifts would have been in the vicinity of two to three months for the offending on bail and three months for the criminal history. The latter uplift would have been higher if the previous offending was closer in time.
[74] Turning to the credits, I agree that a guilty plea discount of 15 per cent was appropriate, acknowledging that some of the charges were resolved after quite lengthy negotiations and some charges were resolved at the earliest opportunity.
[75] Mr Evans has a number of personal mitigating factors which would appropriately attract a discount of 15 per cent or slightly higher. He suffered a serious
41 As noted, in reaching this conclusion I have had regard to cases including MacDonald v New Zealand Police, above n 39; Haeta v R, above n 39; and Campbell v R, above n 39.
head injury, and that coupled with a long-standing addiction was a factor in his return to cannabis cultivation. That would take the appropriate discount for personal mitigating factors other than time spent on EM bail to around 30 per cent rather than the 17 per cent applied.
[76] However, that needs to be balanced against the lack of any uplift for factors that clearly warranted an uplift and against the fact that both the starting point taken in respect of the first set of offending and the nine-month uplift applied for the 2025 offending were lenient.
[77]Were I sentencing afresh, I would structure the sentence as follows:
(a)Starting point for cultivation: 3 years.
(b)Uplift for manufacture of cannabis oil: 12 months.
(c)Uplift for March 2025 charges: 9 months.
(d)Credit for guilty plea: 15 per cent.
(e)Credit for personal factors: 15 per cent.
(f)Uplift for offending on bail: 2 months.
(g)Uplift for previous similar offending: 3 months.
(h)Adjustment for time spent on restrictive bail: 12 months.
[78] Calculated that way, the end sentence would be approximately two years and eight months’ imprisonment.42 A final totality adjustment could take the sentence to the level reached by Judge Tompkins. Equally, if a slightly higher credit for guilty plea and personal factors is applied, the sentence could be the same as that reached by
42 Rounded down from 32.9 months’ imprisonment.
Judge Tompkins. What that really indicates is that, unsurprisingly, an experienced District Court Judge was entirely correct about the end point, however he reached it.
[79] Standing back and looking at the overall sentence, and having tested it against the Moses methodology, the sentence is not manifestly excessive.
Result
[80]The appeal is dismissed.
Wilkinson-Smith J
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