Johnson v Police HC Auckland CRI 2010-404-278
[2010] NZHC 2129
•9 November 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-404-000278
TOPO WATANA JOHNSON
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 8 November 2010
Appearances: M J Levett for Appellant
S C Duncan for Respondent
Judgment: 9 November 2010 at 12:00 noon
JUDGMENT OF COURTNEY J [Appeal against sentence]
This judgment was delivered by Justice Courtney on 9 November 2010 at 12:00 noon
pursuant to R 11.5 of the High Court Rules.
Registrar / Deputy Registrar
Date......................................
Solicitors: Meredith Connell, P O Box 2213, Auckland 1140
Fax: (09) 336-7629 – S Duncan
Counsel: M J Levett, 75C Corinthian Drive, Albany, North Shore City 0632
Fax: (09) 489-8948
JOHNSON V NZ POLICE HC AK CRI-2010-404-000278 9 November 2010
[1] The appellant, Mr Johnson, appeals the sentence imposed on him by Judge Moore in the District Court at North Shore on one charge of cultivating cannabis, one of possession of a bong for cannabis use, one of unlawfully possessing a firearm and one of unlawfully possessing ammunition. The sentences imposed by the Judge were:
a) One year six months’ imprisonment on the cultivation charge;
b)Nine months’ imprisonment on the possession of a shotgun charge (to be served cumulatively on the cultivation charge); and
c) Two months’ imprisonment on the possession of ammunition charge
(served concurrently with the other sentences).
[2] The appellant was convicted and discharged on the possession of a bong charge.
[3] The grounds of the appeal are that the sentencing Judge:
a) Failed to give sufficient weight to the appellant’s personal circumstances, namely his efforts at rehabilitation and prognosis;
b)The possession of a firearm and/or ammunition as an aggravating factor in the cultivation of cannabis charge;
c) Gave too much weight to the fact that the offending occurred at home when determining whether a sentence of home detention was appropriate.
[4] The charges were laid following the execution by police of a search warrant at the appellant’s house in Glenfield. The police found 51 cannabis plants growing in soil under artificial light and fans. A CCTV had been set up in the house with the camera at the front door and three monitors in the growing room and two bedrooms.
The police recovered 279 grams of dried cannabis leaf. They also found a sawn-off shotgun and 12-gauge shotgun shells in the appellant’s bedroom. There were more shotgun shells and two boxes of .22 ammunition elsewhere in the house.
[5] The appellant acknowledged that he had been growing cannabis to make money. He also acknowledged knowing that the shotgun and ammunition were present in the house but maintained (and still does) that it had belonged to a previous flatmate.
Structure of the sentence imposed
[6] The Judge fixed the starting point for the cultivation of cannabis by reference to category 2 of R v Terewi[1] which indicated a starting point of two to four years’ imprisonment for small-scale cultivation with a commercial purpose. The range indicated in Terewi for such operations was two to four years and the Judge considered that the nature of the appellant’s operation warranted a starting point of two years nine months. There is no challenge to that aspect of the decision.
[1] [1999] 3 NZLR 62
[7] The Judge uplifted the starting point to reflect the aggravating feature of the presence of a shotgun and ammunition. This, he considered, warranted 15 months’ uplift, which would have brought the starting point to four years.
[8] The Judge then made a reduction of nine months to reflect the appellant’s guilty plea (a discount of nearly 19%) and a further six months for the appellant’s efforts towards rehabilitation. This should have brought the final sentence to two years nine months. However, through an apparent miscalculation the Judge identified the final sentence as being 27 months i.e. two years three months. However, rather than imposing a sentence of two years three months, the Judge imposed a sentence of 18 months on the cultivation charge and nine months on the firearm charge to be served cumulatively. Those sentences do, of course, produce a total cumulative sentence of two years three months. So the end result was the same.
[9] As I have indicated, Mr Levett, for the appellant, did not take any issue with the initial starting point of two years nine months. But, whilst acknowledging that possession of a firearm and/or ammunition can fairly be regarded as a significant aggravating factor on a sentence for cannabis cultivation, Mr Levett submitted that the Judge gave undue weight to this aspect.
[10] It is true that the Judge referred to the shotgun a number of times. The Judge did refer to the appellant’s explanation that the gun was not his but did not regard that explanation as taking away from the aggravation:
[7] Your explanation is that it was not yours and that had been left there by somebody else but you knew perfectly well it was there. You knew perfectly well there was a sizeable supply of ammunition for it.
[8] Mr Levett, on your behalf has emphasised that there is no association between the shotgun and the cannabis growing. That has got me puzzled in the sense that it was not something you can take out and shoot ducks with in the duck-shooting season or rabbits or opossums at any time of year…
[9] No sensible person in our community wants one of those in their house under any circumstances because its only use is to shove into someone’s face in the course of an armed hold-up or to use in the rip-offs and standovers that are routinely part of the drug scene.
[11] Later, having fixed the initial starting point and turned to consider the presence of the firearm as an aggravating feature the Judge said:
[25] If you chose to allow your dwelling to be somewhere where a sawn- off shotgun and a supply of ammunition for it is kept, there has got to be a significant add-on to [the starting point]. There is no way out of it. Too many crooks in this country are prepared to shove that sort of weapon in the faces of decent citizens going about their ordinary work for this society to be able to tolerate that sort of weapon.
[26] Even on the basis of your story that you were, in effect, looking after it for somebody else, that does not get around the proposition of what the “somebody else” could have conceivably been doing with a weapon like this. I do not think there is any way we can look at an add-on of less than 15 months for that weapon.
[12] The Judge’s strong comments about the presence of the shotgun and the willingness of the appellant to have it in his house tended to elevate the significance
of the shotgun to beyond what the known circumstances warranted. Ms Duncan, for the Crown, referred to several cases which indicate,[2] as Ms Duncan acknowledges, that a 15-month uplift is high for possession of a firearm charge either alone or treated as an aggravating feature of cultivating cannabis.
[2] Dewes v NZ Police HC Christchurch A60/03, 12 June 2003; R v Williams HC Palmerston North, CRI-2006-010-000055, 27 July 2006; R v Pearce HC Whangarei, CRI-2008-088-002980,
9 December 2008; R v Walker HC Palmerston North, CRI-2008-031-001239, 16 December 2008; R v
Rauhihi HC Palmerston North, CRI-2008-031-001438, 1 May 2009
[13] Ms Duncan submitted, however, that the 15-month uplift was counteracted by the calculation error in the Judge’s sentencing approach that I have discussed. This, she said effectively reduced the final sentence by a further six months, as a result of which one could reasonably view the uplift as nine months rather than 15 months.
[14] I am satisfied that the Judge’s approach to fixing the sentence resulted in a manifestly excessive sentence. In the circumstances, the presence of the firearm would have been better dealt with by way of a concurrent sentence with the lead offence uplifted to reflect totality. The circumstances of the offending would have justified an uplift of six months, bringing the initial starting point of two years nine months to three years three months. From that, the appellant would have been entitled to a deduction for the mitigating factors.
[15] The appellant could point to strenuous efforts and discernible progress towards rehabilitation and Mr Levett submitted that the Judge did not place sufficient weight on this aspect. The pre-sentence report showed the appellant as suffering from depression and having a serious drug and alcohol addiction which was used to some extent by way of self-medication for his depression. However, he was assessed as low-risk and an intensive community-based sentence was recommended. The Judge recognised the appellant’s efforrts towards rehabilitation:
[23] My problem is this: you have made some progress and I do not want to backtrack on that. On the other hand on behalf of the community I have got to take a consistent approach to matters of this sort and you cannot claim to come before the court as someone who has got a clear record or someone who pleaded guilty early. You are entitled to a discount for your plea but it nothing like what you would have got if you had pleaded guilty straight up…
[34] I recognise the progress you have made, and I am a bit sad that we have got to go down this path, but the law gives me no choice, and in any event the Parole Board in considering what to do with you will take into account the good progress you have made I am sure. Matters from here on are in their hands not in mine.
[16] Mr Levett acknowledged the clear statement in Terewi to the effect that the personal circumstances of an offender whose activities include commercial cultivation of cannabis are usually not to be given significance in the sentencing process. He nevertheless submitted that given the strong Probation Office recommendation the Judge should have recognised the desirability of a non-custodial sentence.
[17] The sentencing Judge gave a total discount of nearly 19% which, given the stage at which the plea was made, can only be regarded as fair. There is no basis to justify a higher discount. Retaining the discount of 15 months allowed for the guilty plea and personal circumstances, the final sentence would therefore be 24 months.
[18] Mr Levett had submitted that, n the event of the sentence being reduced to this level the appellant would seek home detention. The possibility of a non- custodial sentence was raised with the Judge in the District Court with a negative response. I would have to agree that the Judge’s response was justified; even with a two-year sentence that would theoretically entitle the appellant to apply for home detention that would be completely inappropriate in light of the nature of the offending.
Result
[19] The result is that the appeal is allowed, the sentences imposed in the District
Court are quashed and the following sentences substituted:
a) Two years’ imprisonment on the charge of cultivating cannabis.
b)Nine months’ imprisonment on the firearm charge to be served concurrently with the cultivation charge.
c) Two months’ imprisonment on the possession of ammunition charge
to be served concurrently with the above sentences.
P Courtney J
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