Horn v Police - [2013] NZHC 2512

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2013-425-000032 [2013] NZHC 2512

BETWEEN LIONEL ROBERT WAYNE HORN Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 24 September 2013

Appearances:

S N Claver for Appellant
S N McKenzie for Respondent

Judgment:

25 September 2013

JUDGMENT OF D GENDALL J

[1] On 27 August 2013 the appellant was sentenced in the District Court at Invercargill on charges of possession of cannabis for supply and possession of cannabis utensils. A sentence of 10 months imprisonment was imposed. Earlier, on
19 July 2013, the appellant had entered a plea of guilty to these charges.

Background facts

[2] On 1 May 2013 the appellant was at an address in Christchurch when police called on an unrelated matter. During the police attendance the provisions of the Search and Surveillance Act 2012 were invoked and the appellant and his bag were searched. Police discovered on the appellant 50.9 grams of cannabis, a set of scales and 50 small zip lock bags. He was also in possession of $849, $700 of which was in $20 notes. Also located in his bag was a small pipe, used to smoke cannabis.

[3] The appellant’s explanation to police at the time was that, although the cannabis pipe and money were his, he said he had borrowed the scales from a friend. The appellant stated also that the cannabis was for his personal use and the 50 zip
lock bags had been included when he purchased the cannabis.

HORN v NEW ZEALAND POLICE [2013] NZHC 2512 [25 September 2013]

[4] With his plea of guilty on 19 July 2013 the appellant acknowledged that he had possession of the cannabis for the purposes of supply and he had possession of the cannabis utensils. He also did not seek to challenge the forfeiture of the $700 found on him.

[5] The appellant has 30 previous convictions, although none of these involved drugs. Since 1999 he had been before the Court on a regular basis with respect to driving offences, dishonesty and violence matters, including especially domestic violence matters. A breach of protection order conviction was also entered against him.

[6] The pre-sentence report before the Court notes that the appellant is 32 years of age, and he has a partner who lives in Christchurch. He has a significant drug issue, acknowledging the use of cannabis since he was 16 years of age.

[7] The pre-sentence report assessed the appellant’s risk of re-offending as moderate but only on the basis that he abstained from using cannabis or other illegal drugs. Given his history of violence, his risk of harming others was said to be medium to high.

District Court decision

[8] In the District Court His Honour Judge Turner made the following relevant findings in imposing the end sentence of 10 months imprisonment:

(a) The appellant had pleaded guilty to all charges against him.

(b)The maximum sentence for the possession of cannabis for supply charge was eight years.

(c) The summary of facts was not…

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: [2013] NZHC 2512
Decision Date: 25 September 2013

CaseChat Overview and Summary

Lionel Robert Wayne Horn, the appellant, was sentenced to 10 months imprisonment in the District Court at Invercargill for possession of cannabis for supply and possession of cannabis utensils. The appellant appealed the sentence, raising three grounds for appeal. Firstly, the appellant argued that the sentencing miscarried due to the District Court Judge being mistaken as to the maximum penalty available. Secondly, the appellant argued that the sentence imposed was manifestly excessive. Lastly, the appellant argued that imposing a condition relating to his partner would have meant that a sentence of home detention should have been imposed instead of one of imprisonment.

The court noted that the appellant had 30 previous convictions, but none of them involved drugs. The appellant had a significant drug issue, acknowledging the use of cannabis since he was 16 years of age. The pre-sentence report assessed the appellant’s risk of re-offending as moderate but only on the basis that he abstained from using cannabis or other illegal drugs. The District Court Judge had made relevant findings in imposing the end sentence of 10 months imprisonment. The appellant’s offending was small scale dealing in cannabis for commercial gain, and fell within band 2 of R v Terewi. The court found that the starting point adopted by the District Court Judge of 16 months imprisonment was appropriate. The final end sentence imposed in the District Court was not manifestly excessive, and the District Court Judge was entitled to find that the appellant was likely to fail a sentence of home detention. The appeal was dismissed, and the sentence imposed by the District Court was upheld.

The court's decision was based on the fact that the appellant had a history of violence and drug use, and the District Court Judge was entitled to find that the appellant was likely to fail a sentence of home detention. The court found that the sentence imposed by the District Court was not manifestly excessive and must stand. The appeal was dismissed, and the sentence imposed by the District Court was upheld.

Orders