Hockly v Police - [2012] NZHC 2938

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2012-454-24

CRI-2012-454-25 [2012] NZHC 2938

AARON STEWART HOCKLY

v

NEW ZEALAND POLICE

Hearing: 7 November 2012

Counsel: O S Winter for Appellant
A M Read for Crown

Judgment: 7 November 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 11:30am on the 7th November 2012.

JUDGMENT OF WILLIAMS J

Solicitors:
WinterWoods Lawyers, PO Box 12067, Palmerston North
Crown Solicitor, Palmerston North

AARON STEWART HOCKLY V NEW ZEALAND POLICE HC PMN CRI-2012-454-24 [7 November 2012]

[1] The appellant, Mr Hockly, pleaded guilty in the District Court to:

(a) one charge of cultivation of cannabis under s 9(1) of the Misuse of

Drugs Act 1975; and

(b) one charge of theft of electricity under ss 219 and 223(b) of the

Crimes Act 1961.

[2] On the cultivation of cannabis charge, the Judge sentenced Mr Hockly to two years and four months’ imprisonment. On the theft charge, the Judge imposed a sentence of four months’ imprisonment (to be served concurrently having already considered the charge as an aggravating factor of the cultivation) and ordered Mr Hockly to pay reparation of $1,196.90. Mr Hockly appeals against his sentence.

Circumstances of the offending

[3] On 28 October 2011, a search warrant was executed at Mr Hockly’s residence (owned by his employer). Both Mr Hockly and his partner were present. Mr Hockly informed the police that he was growing cannabis in the double garage at the address.

[4] In the garage, the police located a sophisticated cannabis growing operation. The cannabis was growing in a partitioned off part of the garage, six metres by eight metres in size. The area was lined with polythene and split into three sections. One contained seedlings, another contained 70 cannabis plants, and the other contained
90 cannabis plants. Each of the plants were growing in individual planter bags under lights. The garage and growing areas were powered by electricity from the house. Mr Hockly had diverted the electricity supply so that he could use the power without paying for it. It was agreed between the parties that the value of the electricity stolen was between $1,196.90 and just over $18,500.

[5] In total, the police discovered 863 cannabis plants comprising 164 cannabis plants between 60 and 90 cm tall, and 699 cannabis seedlings. The police also located:

(a) five heat lamps (one was above the seedlings, two were above each partition containing the mature plants);

(b)      seven power supply transformers; (c)    two carbon filters;
(d)      six pedestal fans; (e)           dehumidifier;
(f)       electric heater; and

(g) various extension cords.

[6] Inside the house, police also located a bag of cannabis leaf and instruments for the consumption of cannabis. When interviewed, Mr Hockly admitted cultivating the cannabis and having cultivated previously, but said that he had not yet harvested any plants from the particular grow located in the garage.

[7] The Provision of Advice to the courts (equivalent of pre-sentence report) noted…

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 Hockly v Police

Details

AGLC: Hockly v Police [2012] NZHC 2938
Case: [2012] NZHC 2938
Decision Date: 7 November 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Hockly v Police was heard on 7 November 2012. Aaron Stewart Hockly, the appellant, appealed against his sentence imposed by Judge Lynch in the District Court. Hockly had pleaded guilty to cultivating cannabis and stealing electricity. The Judge sentenced Hockly to two years and four months’ imprisonment for the cannabis charge and four months’ imprisonment concurrently for the theft charge, along with an order for reparation of $1,196.90. The central legal issues in this appeal were whether the starting point, uplifts, and discounts applied by the Judge were appropriate and whether the final sentence was manifestly excessive.

The court considered the starting point and uplifts applied by the Judge. The starting point of three years and three months’ imprisonment was deemed to be on the high side, given the reviewed cases. The court found that the uplift to account for Hockly's previous convictions was not justified, as they were non-drug related and more than 10 years old. Moreover, the court determined that Hockly should be entitled to the full discount for his guilty pleas because he effectively admitted guilt at the outset. Ultimately, the court found that the sentence was manifestly excessive as the starting point and uplifts were too high, even with the generous discount for remorse and efforts at rehabilitation. The court substituted a sentence of two years’ imprisonment and allowed Hockly to apply to the District Court for a sentence of home detention, if applicable.

The final orders of the court were to allow Hockly's appeal, substitute a sentence of two years’ imprisonment, and grant Hockly leave to apply to the District Court for a sentence of home detention if the relevant requirements of the Sentencing Act were met.

Orders