Graham v Police - [2018] NZHC 3454

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000092

[2018] NZHC 3454

BETWEEN
DEAN ALAN LINDSAY GRAHAM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 6 December 2018

Appearances:

J M H Eaton QC for the Appellant S Dayal for the Respondent

Judgment:

21 December 2018

JUDGMENT OF NATION J

[1] Dean Graham appeals against a sentence of 80 hours’ community work imposed after he pleaded guilty to a charge of allowing his premises to be used for the purpose of cannabis cultivation. The actual cultivation was a sophisticated cannabis grow. Mr Graham was sentenced on the basis he had known only six plants were being grown by someone else. He argues the sentence was manifestly excessive because he should have been fined.

The summary of facts

[2] Mr Graham was the primary occupant of a 2.5 acre property in rural Canterbury, with a dwelling house and outlying sheds and garages. Also situated at the address was a 40 foot truck semi-trailer and a 20 foot shipping container.

[3] On 25 January 2017, the Police executed a search warrant at the address. Mr Graham was at the address. He was found to be in a possession of a cannabis pipe.

GRAHAM v POLICE [2018] NZHC 3454 [21 December 2018]

[4] In the truck semi-trailer was a sophisticated cannabis grow. The inside of the trailer had been modified to accommodate three grow rooms. The rooms were lined with insulation and were fully powered.

[5] There were numerous transformers, ducting, lighting rigs, fans, timers, nutrient concentrates and fertilisers set up to maximise growth. Within the rooms were 109 cannabis seedlings and 29 large mature cannabis plants growing in hydroponic tanks.

[6] In the adjacent shipping container were four dead cannabis plants and an old lighting setup.

[7] An operation of the kind discovered would have required electricity, water and regular tending.

[8] The summary of facts recorded that Mr Graham told the Police he had knowledge of the cannabis grow but stated another person was responsible for it.

[9] In Mr Graham’s bedroom in the dwelling house, the Police found a .22 inch calibre rifle in a “soft” carry bag, certain ammunition loose in the room and not secured and a .38 inch calibre Webley pistol.

The District Court decision

[10] Mr Graham did not hold a firearms licence. The Judge noted that, if Mr Graham had a firearms licence, he would have been required to do a course that would have taught him the safe way to keep firearms. He pleaded guilty to a representative charge of being in possession of firearms without a licence. On that charge, he was fined $500 and ordered to pay Court costs of $130. The Judge sentenced Mr Graham on the basis the firearms were inherited.

[11] Mr Graham pleaded guilty to a charge of possession of the pipe for committing the offence of smoking cannabis.1 On that charge, he was convicted and discharged.

1 Misuse of…

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.

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Details

Case: [2018] NZHC 3454
Decision Date: 21 December 2018

CaseChat Overview and Summary

Dean Graham appeals against a sentence of 80 hours’ community work imposed after he pleaded guilty to a charge of allowing his premises to be used for the purpose of cannabis cultivation. The cannabis grow was sophisticated and situated on Mr Graham’s property in a semi-trailer. Mr Graham was sentenced on the basis he had known only six plants were being grown by someone else. He argues the sentence was manifestly excessive because he should have been fined.

The High Court found that the District Court Judge was entitled to regard Mr Graham’s offending as more culpable because of the extent of the cultivation which had been discovered. Mr Graham admitted that he permitted someone to cultivate cannabis in the structures on his property. Although he says he did this thinking the premises would be used just to cultivate a handful of plants, in allowing someone to come onto the property, and use the semi-trailer for cultivating cannabis, he was willing to take a risk over precisely what the other offender would be doing there.

The High Court found that the sentence imposed was not manifestly excessive and dismissed the appeal. Mr Graham is to report to Community Probation by 4.00 pm on Monday 7 January 2019.

Orders