Houghton v The Queen
[2020] NZHC 2819
•28 October 2020
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2019-063-2862
[2020] NZHC 2819
BETWEEN KANE HOUGHTON
Appellant
AND
THE QUEEN
Respondent
Hearing: 28 October 2020 Appearances:
A Hill for Appellant
C H R Harvey for Respondent
Judgment:
28 October 2020
(ORAL) JUDGMENT OF LANG J
[on appeal against sentence]
Solicitors:
Crown Solicitor, Rotorua
HOUGHTON v R [2020] NZHC 2819 [28 October 2020]
[1] Mr Houghton pleaded guilty in the District Court to charges of cultivating cannabis, being in possession of cannabis, being in unlawful possession of a firearm (x 3) and being in unlawful possession of ammunition. On 9 October 2020 Judge Bidois sentenced Mr Houghton to 26 months imprisonment.1
[2] Mr Houghton appeals against the sentence. He says the Judge adopted an overall starting point that was too high on the cannabis charges and then added an excessive uplift to reflect the charges relating to the firearms and ammunition. He says this led to an end sentence that was manifestly excessive.
The offending
[3] The charges were laid after the police executed a search warrant at Mr Houghton’s address on the morning of 2 September 2019. The address is situated in a rural area and comprises a large section with a dwelling and numerous outbuildings. When the police searched a tool shed they found seven potted cannabis plants. Also in the shed were two bags of cannabis leaf material weighing 1.131 kilograms and a bag of cannabis seeds weighing 539 grams.
[4] In the woolshed the police found two containers that held 1.1 kilograms of cannabis plant material. When the police searched the garage, they found 96 small potted plants. These ranged in height from ten to 25 centimetres. The police also found a black plastic bag in the garage that contained 450 grams of cannabis material, as well as a further bag containing 24 grams of cannabis material. In addition, they found two bags of cannabis seeds weighing in total 1.85 grams.
[5] When the police searched Mr Houghton’s bedroom they found a tin containing five grams of cannabis bud. In the wardrobe they found a bucket containing 94 grams of cannabis plant material. In another bedroom the police found a bucket containing 123 bags of cannabis bud material weighing 215 grams. The same bucket also contained 305 grams of cannabis plant material. This series of events gave rise to the charges of cultivating cannabis and being in possession of cannabis.
1 Houghton v R [2020] NZDC 20684.
[6] The firearms charges were laid as a result of items found in a woodshed at the rear of the address and in the garage. In the woodshed the police found a wooden .243 Winchester rifle and a .44 Magnum Bolt-Action Rifle. In the garage the police found no fewer than ten firearms, including a semi-automatic rifle and a 12 gauge Mossberg pump action shotgun. Several of the firearms were found to be loaded with live ammunition. Throughout the garage the police found approximately 310 rounds of different types of ammunition. Most of this was for firearms other than the shotgun and the semi-automatic weapon.
[7] Mr Houghton does not have a firearms licence that entitled him to own or be in possession of either the firearms or the ammunition. He said, however, that he had confiscated the semi-automatic weapon and the shotgun from others because he did not consider it was appropriate for them to be in possession of those weapons. He said that all the remaining firearms and ammunition were used for hunting purposes. He acknowledged he was aware that he needed a firearms licence and did not have one.
The Judge’s decision
[8] The Judge considered that the charge of cultivating cannabis fell within category 2 identified in R v Terewi.2 He acknowledged that most of the plants were at the seedling stage, there was no indication this was a sophisticated growing operation and there appeared to be no commercial aspect to it. He noted that Mr Houghton said he was growing the cannabis for his mother who used it for pain relief. There was an affidavit before the Judge from Mr Houghton’s mother confirming that this was the case.
[9] The Judge noted that Mr Hill, who appeared for Mr Houghton at sentencing in the District Court, argued for a starting point on the cannabis charges of between 18 and 24 months imprisonment. Counsel for the Crown considered a starting point of at least three years imprisonment was appropriate. The Judge considered that an overall starting point of 21 months was warranted on the cannabis charges.
2 R v Terewi [1999] 3 NZLR 62 (CA).
[10] The Judge then applied an uplift of 18 months to reflect the fact that Mr Houghton was in unlawful possession of a considerable number of firearms. This led to an end starting point of 39 months imprisonment. The Judge then applied a discount of one-third to reflect guilty pleas, time spent on restrictive bail conditions and expressions of remorse by Mr Houghton. This produced the final sentence of 26 months imprisonment.
The appeal
Starting point on cannabis charges
[11] Mr Hill argues on Mr Houghton’s behalf that the Judge ought to have selected a starting point of around 18 months imprisonment on the cannabis charges. This was at the lowest end of the range he had suggested to the Judge at sentencing. Mr Hill points out that this was not a sophisticated growing operation and there are no indicia to suggest commerciality of purpose. Rather, all the material before the Judge suggested Mr Houghton was only growing the cannabis to supply it to his mother for pain relief purposes.
[12] I accept these submissions as far as they go, but the police discovered a very large number of cannabis plants in various states, as well as considerable quantities of cannabis plant material in different locations. I find it difficult to believe Mr Houghton’s mother could be using that amount of cannabis herself for pain relief. It appears to be common ground that Mr Houghton does not use cannabis himself. The suspicion must therefore be that he was selling at least some of it to gain some additional income.
[13] I therefore consider the offending lay in a zone where there is likely to be some commerciality but not a great deal. This meant a sentence of less than two years imprisonment was justified. I consider, however, that the starting point of 21 months imprisonment struck the right balance because it recognised the large number of plants and plant material that the police found whilst taking into account the fact that this was not a truly commercial operation. I therefore do not consider the Judge adopted a starting point on the cannabis charges that was too high.
Uplift for firearms charges
[14] On the firearms charges Mr Hill submits a starting point of around 12 months would have been appropriate. He points out that most of the firearms that the police found were for use in innocent hunting activities. This is not a case, he argues, in which a drug dealer or cultivator of drugs has weapons in close proximity in order to protect his drugs or crop. He also points out that Mr Houghton had a ready explanation for the circumstances in which he came into possession of the semi-automatic rifle and the shotgun.
[15] I accept Mr Harvey’s submission for the Crown, however, that the charges relating to the shotgun and the semi-automatic weapon could easily have justified a starting point of 18 months imprisonment on a standalone basis. Added to this is the fact that Mr Houghton had a large number of other weapons in his possession, together with a significant quantity of ammunition.
[16] I therefore consider an uplift of more than two years imprisonment could easily be justified. That being the case, I do not see how it can be said that an uplift of 18 months imprisonment to reflect these charges was excessive.
Result
[17] Neither ground of appeal has been made out. Mr Hill does not take issue with any of the discounts applied by the Judge. It follows that the end sentence was not manifestly excessive.
[18]The appeal against sentence is dismissed.
Lang J
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