Hartley v Police - [2014] NZHC 2304

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2014-443-018 [2014] NZHC 2304

BETWEEN
KIERAN ROBERT HARTLEY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 22 September 2014

Counsel:

K M Marriner for appellant
B C Sweetman for respondent

Judgment:

23 September 2014

RESERVED JUDGMENT OF DOBSON J

Introduction

[1] Mr Hartley pleaded guilty to one charge of cultivation of cannabis1 and one charge of possession of cannabis.2 He was sentenced by Judge Roberts in the District Court at Hawera on 16 July 2014 to nine months’ imprisonment. He has appealed against this sentence.

Facts

[2] On 13 April 2014, Police visited Mr Hartley’s home to discuss an unrelated matter and smelt cannabis emanating from an open window. A search of the address uncovered seven cannabis plants ranging in height from 0.75 to 1.75 metres, together with 736 grams of cannabis head drying on newspaper in a room inside the house.

[3] When spoken to by the Police, Mr Hartley admitted that this was not the first

time he had grown cannabis and stated it “certainly wouldn’t be the last”. He added

1 Misuse of Drugs Act 1975, s 9(1). Maximum penalty of seven years’ imprisonment.
2 Misuse of Drugs Act 1975, s 7. Maximum penalty of three months’ imprisonment or $500 fine.

HARTLEY v POLICE [2014] NZHC 2304 [23 September 2014]

that he “didn’t feel he was doing anything wrong and he was only in trouble because the government had made cannabis use illegal”. He said he grew the cannabis for use to medicate pain associated with a recurring dislocation of his left shoulder.

Previous offending

[4] In 2009, Police discovered a growing operation and 11 cannabis plants between 5 and 30 centimetres in height, 14 plants between 70 and 80 centimetres, seven plants between 40 and 45 centimetres and 2.3 kilograms of harvested cannabis that was in the process of drying. On that occasion, Mr Hartley was convicted of possession of cannabis for supply, cultivation and possession of equipment for cultivating cannabis. He was sentenced by Judge Roberts to six months’ home detention. The sentencing notes from the 2009 convictions were not available. However, Judge Roberts remarked during the current sentencing that it is likely that a starting point of 18 months was adopted then reduced by a third for Mr Hartley’s guilty plea to arrive at 12 months’ imprisonment. That had then been substituted with the sentence of home detention.

Materials available on sentencing

[5] There were seven letters potentially relevant to the appeal. The first two were produced for the 2009 sentencing. In a letter dated 4 October 2009, Mr Hartley wrote:

… I had contemplated quitting a few times but due to my addiction I thought that was a mountain I would climb later but since I have been caught it has given me a shove in the right direction that I wish I had received earlier.

… I have now found a job with a previous employee that was happy to employ me only…

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: [2014] NZHC 2304
Decision Date: 23 September 2014

CaseChat Overview and Summary

The appellant, Kieran Robert Hartley, appealed against his sentence of nine months’ imprisonment for cultivating and possessing cannabis. The District Court Judge had imposed the sentence after Hartley pleaded guilty to the charges. The High Court was required to decide whether the Judge erred in imposing a sentence of imprisonment rather than a sentence of home detention or community detention.

The Court concluded that the Judge erred in not imposing a sentence of home detention or community detention. The Court held that the Judge placed insufficient weight on Hartley’s personal circumstances and the distinction between cultivation for personal use and cultivation for supply of others. The Court also held that the need for denunciation and deterrence was lower in cases of cultivation than in cases of supply. The Court was satisfied that a sentence of community detention coupled with intensive supervision was the least restrictive outcome that was appropriate in the circumstances.

The Court quashed the sentence of nine months’ imprisonment and, giving credit for two months served, replaced it with a sentence of four months’ community detention and 18 months’ intensive supervision. The additional conditions imposed were that the community detention sentence was to be served at 403 Rowan Road, Hawera, the curfew imposed was from Monday to Sunday inclusive, from 9 pm to 5 am, and the first curfew was to take effect three days after the date of the judgment.

Orders