Gillan v The Queen - [2021] NZHC 2799

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2021-412-000035

[2021] NZHC 2799

BETWEEN
SIMON GILLAN

Appellant

AND

THE QUEEN

Defendant

Hearing: 18 October 2021

Appearances:

S A Saunderson-Warner for Appellant C J Bernhardt for Respondent

Judgment:

20 October 2021

JUDGMENT OF GENDALL J

This judgment was delivered by me on 20 October 2021 at 12 p.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

GILLAN v R [2021] NZHC 2799 [20 October 2021]

Introduction

[1] The appellant, Mr Gillan, was charged with cultivating cannabis,1 selling cannabis (x4),2 offering to sell cannabis (x2)3 and unlawful possession of a firearm.4 He appeared before Judge Emma Smith in the District Court at Dunedin on 15 June 2021 for sentencing. The Judge sentenced Mr Gillan to 26 months’ imprisonment.5

[2] Mr Gillan now appeals that decision on the basis that the sentence imposed was manifestly excessive due to the starting point being too high.

Facts

[3] In May 2020 police became aware that Mr Gillan was selling cannabis and began an investigation. The investigation found that between 27 April 2020 and 11 May 2020 Mr Gillan had sold $1,100 worth of cannabis and offered to sell approximately $200 worth of cannabis. Mr Gillan sold cannabis to two people on four occasions.

[4] On 7 September 2020 police officers executed a search warrant at Mr Gillan’s address and located two back rooms of the garage that had been converted specifically for the purpose of cultivating cannabis. The rooms had been lined with polythene material and contained inverters, heat lamps, a hydration system, timers, fans and CCTV monitoring. A number of fertilisers and assorted cannabis utensils and digital scales were located throughout the house.

[5] Cannabis plants were located at various stages of development. Sixteen were mature plants, four were immature and 27 clones were located in two propagation boxes. The mature and immature plants were growing under a heat lamp and appeared to be healthy. The summary of facts states that “for the purposes of sentencing” the cultivation involved 34 plants. The immediate yield from the two mature plants was

1      Misuse of Drugs Act 1975, s 9(1). Maximum penalty of seven years’ imprisonment
2      Section 6(1)(e). Maximum penalty of eight years’ imprisonment.
3      Section 6(1)(e). Maximum penalty of eight years’ imprisonment.
4      Arms Act 1983, s 45. Maximum penalty of four years’ imprisonment.
5      R v Gillan [2021] NZDC 11755.

estimated to be three ounces per plant, equating to $2,700 and the projected yield from the 34 plants was estimated to be three ounces per plant, equating to $45,900.

[6] Also located in the house was a sawn off .22 firearm. This was found wrapped in a black reusable shopping bag in a wooden chest in Mr Gillan’s bedroom. The firearm was loaded with one .22 round.

District Court decision

[7] The District Court Judge first outlined the facts of the offending and Mr Gillan’s explanations as to this offending. Mr…

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 Gillan v The Queen

Details

AGLC: Gillan v The Queen [2021] NZHC 2799
Case: [2021] NZHC 2799
Decision Date: 20 October 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Simon Gillan appealed against his sentence for cannabis cultivation and sale, and unlawful possession of a firearm. The District Court had sentenced him to 26 months’ imprisonment, a sentence Gillan deemed manifestly excessive. The High Court was required to determine whether the District Court had erred in its imposition of the sentence, specifically the starting point for the cannabis-related charges, and if a different sentence should be imposed.

The Court found that the District Court was bound to follow the Court of Appeal’s decision in R v Terewi, which set out the guidelines for cannabis cultivation offending. The Court agreed with the District Court that Gillan’s offending fell into Terewi category two, which encompassed small-scale cultivation of cannabis plants for a commercial purpose. The Court held that the starting point of 26 months for Gillan’s cannabis-related charges, although perhaps at the higher end, was not manifestly excessive. The Court also found that the 14-month uplift for the firearms charge was appropriate. Considering the totality of Gillan’s offending, the Court found no error in the District Court’s imposition of the sentence of 26 months’ imprisonment.

The appeal was dismissed, and the sentence of 26 months’ imprisonment, along with the destruction orders made in the District Court, was upheld.

Orders