Habib v Police - [2018] NZHC 1224

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2018-412-000003

[2018] NZHC 1224

BETWEEN
VIGIL HABIB

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 May 2018 (By way of AVL)

Appearances:

D L Henderson for the Appellant R D Smith for the Crown

Judgment:

29 May 2018

Reissued:

30 May 2018

JUDGMENT OF DUNNINGHAM J

[1] On 1 December 2017, Judge Turner sentenced Vigil Francis Habib to two years and five months’ imprisonment, along with an associated order for the forfeiture of
$1,445, for possession of cannabis for supply.1 Mr Habib appeals on the basis that the
starting point adopted was too high.2

Background facts

[2] On 16 March 2017, Police executed a drug-related search warrant of Mr Habib’s home address. The search revealed a snap-lock plastic bag containing
311.8 grams of cannabis bud. This was stated to have a street value of $3,850 to

1 There was also a charge of failing to answer bail.
2 The general notice of appeal states the sentence is “harsh, extreme compared to others [and] … the cannabis was for medical reasons not for sale”. There is no argument that the only actual ground of appeal is that the starting point is too high, as the uplift and mitigating factors are accepted.

HABIB v NEW ZEALAND POLICE [2018] NZHC 1224 [29 May 2018]

$4,950 if sold by the ounce. Some of the cannabis was packed into two gram bags and if sold by this smaller quantity, it would have a street value of $7,775. Mr Habib also produced a plastic bag containing $2890 in cash. Electronic scales and several empty snap lock bags were also found at the property.

[3] Mr Habib initially explained that the cannabis was for his own personal use to ease the symptoms of multiple sclerosis. However, he pleaded guilty to supply and that conviction is not appealed.

Relevant law

[4]Section 9 of the Misuse of Drugs Act 1975 provides:

9 Cultivation of prohibited plants

(1)Except pursuant to a licence under this Act, or as otherwise permitted by regulations made under this Act, no person shall cultivate any prohibited plant.

(2)Subject to subsection (4), every person who contravenes subsection
(1) commits an offence against this Act and is liable on conviction to imprisonment for a term not exceeding 7 years.

…

[5] Section 9 of the Act defines the offence of cultivation without differentiating between personal or commercial use. The guideline judgments in R v Dutch3 and R v Terewi4 have provided guidance on sentencing for the different categories of offending for the cultivation of cannabis. The three bands set out by the Court of Appeal in both decisions are:5
Category 1 consists of the growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence. Where there have been supplies…

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.

Keep reading for free

Create a free CaseChat account to read Habib v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NZHC 1224
Decision Date: 29 May 2018

CaseChat Overview and Summary

Vigil Habib was sentenced to two years and five months' imprisonment for possession of cannabis for supply. The case was appealed on the grounds that the starting point of the sentence was too high. The key legal issue was whether the starting point for the sentence was appropriate given the circumstances of the case and the relevant sentencing guidelines. The court considered the guidelines established in R v Terewi, which provide a framework for sentencing cannabis cultivation and supply offences. The court found that the appellant's offending fell within Category 2 of the guidelines, which involves small-scale cultivation for a commercial purpose. However, the court also noted the need for consistency in sentencing similar cases. The court found that a starting point of two years' imprisonment would be more appropriate in this case, given the circumstances and the need for consistency. The appeal was therefore allowed, and the sentence was reduced to two years' imprisonment.

Orders