[1] Mr Gillard was convicted on one representative count of offering to supply a Class C drug (cannabis),1 one representative count of possession of a Class C drug for supply (cannabis),2 and one count of possession of a Class B drug for supply (cannabis resin).3 He was sentenced in the District Court at Queenstown to two years imprisonment.4 He appeals against his sentence on the ground that it is manifestly excessive. Leave is also sought to apply for home detention if a suitable
address can be secured.

The offending

[2] In February 2014 police executed a production order to obtain text messaging

data from Mr Gillard’s cellphone. The data obtained was for the period between 13

January 2014 and 27 February 2014 and showed Mr Gillard involved in the

1      Misuse of Drugs Act 1975, s 6(1)(e) and (2)(c) (maximum penalty of eight years imprisonment).
2      Section 6(1)(f) and 2(c) (maximum penalty of eight years imprisonment).
3      Section 6(1)(f) and (2)(b) (maximum penalty of 14 years imprisonment).
4      Police v Gillard DC Queenstown CRI-2014-059-251, 23 September 2014.

GILLARD v NEW ZEALAND POLICE [2014] NZHC 3262 [16 December 2014]

distribution and procurement of cannabis plant and resin. He was in regular text message communication with another offender.5 Mr Gillard offered to supply him with at least 15 $50 bags of cannabis plant, at a value of $750. These facts gave rise to the representative charge of offering to supply cannabis plant.

[3] On 20 January 2014 Mr Gillard offered to supply a co-offender cannabis resin (hash) at $40 per gram. They made arrangements to meet. Mr Gillard later told him he had no hash left, but that he had a “bushie”, that is cannabis grown outdoors. These facts gave rise to the charge of possession of cannabis resin for the purpose of supply.

[4] Between 13 January 2014 and 18 February 2014 Mr Gillard was in regular text message contact with several associates who asked him for cannabis plant material. He bought three ounces of cannabis for just over $1,000 for the relevant period of time and he was later offered two ounces at $450 per ounce. He had also arranged for scales to weigh the cannabis into smaller saleable quantities. On 6
March 2014 police executed a search of Mr Gillard’s home and located 10 grams of dried cannabis plant material with a street value of approximately $100. These facts gave rise to the representative charge of possession of cannabis for the purpose of supply.

[5] When spoken to by police, Mr Gillard admitted that he purchased quantities of cannabis of up to an ounce at a time, and that he shared this with his friends. He initially entered…

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 Gillard v Police

Details

AGLC: Gillard v Police [2014] NZHC 3262
Case: [2014] NZHC 3262
Decision Date: 16 December 2014

CaseChat Overview and Summary

The appellant, Benjamin Gillard, appeals against his sentence imposed by the District Court at Queenstown for drug-related offences. The court was required to determine whether the sentence was manifestly excessive and whether leave should be granted to apply for home detention. Gillard was convicted of offering to supply a Class C drug, possessing a Class C drug for supply, and possessing a Class B drug for supply. The District Court sentenced him to two years imprisonment, which Gillard argues is manifestly excessive. He also seeks leave to apply for home detention if a suitable address can be secured. The court considered the nature and extent of Gillard's offending, his personal circumstances, and compared his case to other similar cases. It found that the starting point of two years imprisonment was appropriate, but the uplift for the Class B drug charge was excessive. The court considered an uplift of two months more appropriate. The court also considered the possibility of home detention but found it unsuitable due to Gillard's current mental health issues.

The appeal was allowed, and the sentence imposed by the District Court was quashed. Gillard was sentenced to one year and eight months imprisonment for the Class C charges and two months imprisonment for the Class B charge, both to run concurrently.

Orders