George v Police HC Whangarei CRI 2010-488-38

[2010] NZHC 1547

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2010-488-38

BETWEEN  DARREN GEORGE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         2 September 2010

Counsel:         J S Day for Appellant

L E P Henderson and D Stevens for Respondent

Judgment:      2 September 2010

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box , Whangarei
Counsel:

J S Day, PO Box 225, Whangarei

GEORGE V NEW ZEALAND POLICE HC WHA CRI 2010-488-38  2 September 2010

Introduction

[1]      Mr George pleaded not guilty to one charge of cultivating cannabis.  On the eve of a defended hearing, he entered a plea of guilty.  He was sentenced by Judge Duncan Harvey, in the District Court at Whangarei, to a term of imprisonment of 10 months.

[2]      Also before the Court was an application to review a sentence of 190 hours community work.   The Judge also undertook that review imposing a term of imprisonment of four months, cumulative on the other sentence.   Therefore, the effective term of imprisonment imposed was one year two months.

[3]      Mr George appeals against the sentence imposed on the cultivating charge, on the grounds that it was inappropriate, due to the way in which the Judge established  aggravating  factors  for  the  purpose  of the  offending.    No  appeal  is brought against the sentence imposed on review.

Background

[4]      The summary of facts is brief.   It alleged that, at approximately 9am on Saturday 15 August 2009, Mr George was at home in Whangarei.  While executing a search warrant, Police located 15 cannabis seedlings in the kitchen pantry.   It was also stated that “a significant amount of indoor growing equipment” was found; although  the  nature  and  extent  of  the  equipment  was  not  particularised.    The summary indicated that Mr George stated that the plants were his and were for his personal use.

[5]      At the time of the offending, Mr George was aged 44 years.  He has a number of previous convictions for offences involving cannabis.  This is the third occasion on which he has been convicted for cultivating cannabis: the first was in September

1994 and the second in January 2001.  In 2006, he was convicted and sentenced for

possession of cannabis for the purpose of supply and the sale of cannabis.  In 2007, he was convicted and sentenced on a charge of possessing cannabis.

Analysis

[6]      The complaint is that Judge Harvey regarded the offending as commercial in nature, contrary to the facts to which Mr George had pleaded guilty.  The District Court Judge relied on a passage in the pre-sentence report from which he drew an inference that Mr George was cultivating for profit.   Indeed, he went further, suggesting that the comment also supported an inference that Mr George was a drug dealer who was dealing for profit.

[7]      On the basis of a “commercial flavour” to the offending, Judge Harvey took a starting point of 12 months imprisonment and, for the late guilty pleas, allowed a credit of two months.  That equates to about 16%, which in terms of Hessell v R[1] is probably generous.

[1] Hessell v R [2010] 2 NZLR 298 (CA) at para [15].

[8]      The short point is whether it was open to the Judge to sentence on the basis of commerciality as an aggravating factor.  Commerciality had not been alleged by the Police and was not a fact that Mr George accepted, by his entry of a guilty plea.

[9]      If the Court is of the view that an aggravating factor may be present that is relevant to the determination of a sentence and the fact is disputed, the Court has an obligation to indicate to the parties the weight likely to be attached to the disputed fact and its significance on sentence.[2]

[2] Sentencing Act 2002, s 24(2)(a).

[10]     In these circumstances, there is no evidence that the Judge provided that sort of indication to the parties before sentencing was undertaken.  If that fact had been disputed on an indication of that type being given, it would have been for the prosecution  to  prove  commerciality  beyond  reasonable  doubt  if  reliance  was

intended to be placed on it for sentencing purposes.[3]

[3] Ibid, s 24(2)(c).

[11]     With  respect  to  Judge  Harvey,  I  conclude  that  he  erred  in  treating commerciality as an aggravating factor.   The absence of proof beyond reasonable doubt that commerciality was present and the inability of Mr George to dispute that fact  prior  to  sentencing  being  undertaken  calls  for  sentencing  to  be  undertaken afresh.

[12]     The Judge took a starting point of 12 months, imprisonment having regard to the “commercial flavour” of the cultivation.  In my view, to extract from that starting point any “commercial flavour”, a substituted period of eight months should be taken from that.  One month should be deducted to represent an appropriate credit for the guilty plea in light of Hessell.

[13]     On that basis the end sentence for the cultivating charge will be seven months imprisonment.   There is no challenge to the cumulative sentence of four months imprisonment on the review.  That sentence is upheld.  I have considered whether an overall sentence of 11 months imprisonment is appropriate based on the totality principle.  I am satisfied that it is.

Result

[14]     The appeal is allowed.  The sentence of 10 months imprisonment imposed on the cultivation charge is set aside.   In its place a sentence of seven months imprisonment is imposed.  The sentence of four months imprisonment on the review

is upheld, meaning that the effective end sentence is one of 11 months imprisonment.

P R Heath J