H v Police HC Christchurch CRI 2010-409-147

[2010] NZHC 1428

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2010-409-000147

H

Appellant

v

POLICE

Respondent

Hearing:         12 August 2010

Counsel:         T W Fournier for Appellant

J W Wall for Respondent

Judgment:      12 August 2010

JUDGMENT OF FOGARTY J

[1]      This is an appeal against a sentence imposed in the District Court by Judge Radford on 22 July.   The appellant, Mr H  , was originally charged with the cultivation of cannabis and with having cannabis in his possession for supply.  That latter charge was reduced to having cannabis in his possession.

[2]      On the charge of cultivation of cannabis he was sentenced to two months home detention.  On the charge of possession he was convicted and discharged.  The Judge acknowledged that the offending fell within category 1 in the Court of Appeal decision in R v Terewi [2999] 3 NZLR 62 (CA). But there were factors in which case the normal sentence would be a fine or a modest period of community work. The factors which gave him cause for concern were that the police had found a purpose built room inside a garage separated by an internal door. Attached to the

ceiling were several metres of air ducting and an extractor fan and suspended from

H V POLICE  HC CHCH CRI 2010-409-000147  12 August 2010

the ceiling were two high wattage lamps which were supplied power by two large transformers.  Underneath the lamps there were four cannabis plants which had been grown hydroponically in pumice and feed nutrients and water was being pumped to them by continuous cycle reticulation.  There was also other paraphernalia including four snaplock bags.

[3]      This type of material,  obviously, would indicate grounds for drawing an inference of possession of cannabis for supply.  It may be that the police were of the view that they could not prove that beyond reasonable doubt and hence agreed to drop the charge.

[4]      It is an important principle of sentencing that the sentencing has to reflect the nature of the charge.  It is not appropriate or allowable for a Judge, however tempted, to sentence on the basis of a higher charge that could have been brought.

[5]      The second problem with the sentence is that s 15A of the Sentencing Act

2002 provides that a sentence of home detention can only be imposed if the Court would otherwise sentence the offender to a short term sentence of imprisonment. There is no basis on these facts for a short term sentence of imprisonment.

[6]      Accordingly, I am of the view that the merit of the appeal is made out.

[7]      The  sentence  of  home  detention  is  quashed.    Mr  H  ,  you  are  now sentenced to 120 hours community work.

[8]      Mr H  , I record you have agreed that one police officer may, with your consent, on reasonable notice to you, come on to the property in your presence and inspect the garage, and particularly, the purpose built room, to confirm the advice you have given to the Court via your counsel that the growing system has been dismantled, and the parts dumped.   I understand that some of the apparatus was confiscated by the police at the time.

Solicitors:

T W Fournier, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch for Respondent