Kelly v Police HC Christchurch CRI 2010 409 148

[2010] NZHC 1479

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2010 409 000148

GLENN PETER KELLY

Appellant

v

POLICE

Respondent

Hearing:         26 August 2010

Appearances: T Fournier for Appellant

J W Wall for Respondent

Judgment:      26 August 2010

ORAL JUDGMENT OF CHISHOLM J

[1]      This is an appeal against a sentence of two years imprisonment imposed on the appellant for cultivation, selling and possession of cannabis, possession of BZP, and possession of firearms.  The primary ground of appeal is that the Judge should have granted home detention.   I have been greatly assisted by the submissions on both sides.

The facts

[2]      An undercover police operation concerning a business known as Switched

On Gardener led to an undercover police officer purchasing two cannabis plants

KELLY V POLICE HC CHCH CRI 2010 409 000148  26 August 2010

from the appellant at a cost of $20  and another undercover police officer later obtained two plants without payment.  Some months later a search of the Switched On Gardener business premises was undertaken.   At the time the appellant was a branch manager.

[3]      Subsequently a search of the appellant’s home revealed a room for the cultivation of cannabis within the garage.   Cannabis plants at varying levels of maturity were found.  There were 99 clones, 25 growing plants, and slightly more than one kilogram of dried cannabis.   In addition the police discovered 228 BZP tables and 91.8 grams of powder in three bags.

[4]      A sawn off .22 calibre pistol was discovered in a wardrobe in a bedroom and a 12 gauge pump action shotgun was discovered in a garage.  There were two shells in the magazine.   It seems the cupboard in which the shotgun was located was secured, at least to some extent.  The appellant did not hold a firearm’s licence and he told the police that the firearms were for his personal safety.

The appellant

[5]      He  is  39  years  of  age.     His  criminal  record  includes  driving  whilst disqualified convictions, the most recent being in 2004.  There are some other traffic convictions and a conviction for attempted burglary but, significantly for present purposes, no previous drug related offences.

[6]      The appellant has enjoyed a stable relationship with his partner and has a very satisfactory work record.   He had been a branch manager for Switched On Gardener  for  one  year.     However,  the  probation  officer  considered  that  his motivation to desist from cannabis was low and this was obviously one of the pivotal factors behind the recommendation for imprisonment.

[7]      Although the home detention appendix indicated that the proposed address was suitable, the police expressed concern about the appellant returning to the place of his offending.   Numerous and impressive letters of support were before the sentencing Judge.

Sentencing

[8]      On the basis that this was a commercial and sophisticated operation the Judge decided that it was within category two of R v Terewi[1]which indicates a starting point of two to four years.  A starting point of two and a half years was adopted by the Judge.  That starting point was uplifted by six months to reflect the appellant’s attitude towards the use of cannabis and the presence of firearms.  Having arrived at

[1] R v Terewi [1999] 3 NZLR 62

36 months the Judge then allowed a one third discount for the guilty plea and imposed an overall sentence of two years imprisonment.  The cultivation of cannabis attracted  18  months  imprisonment  and  there  was  a  cumulative  sentence  of  six months for the firearms charges.  The other sentences were concurrent.

[9]      With reference to home detention the Judge commented that this sentence required a degree of self-discipline and a willingness to look at the causes and reasons behind the offending.  He noted that the appellant was willing to flout Court orders (driving whilst disqualified) and that he had not demonstrated a willingness to address his addiction to cannabis.  Then the Judge posed the question whether the appellant would be willing to follow the orders of the Court, and concluded that he would not.

[10]     The other factor taken into account by the Judge was that the offending had taken place in the home to which he would be confined if home detention was granted.   The Judge commented on the presence of children at the address and concluded that home detention was not appropriate.

Submissions on behalf of appellant

[11]   For the appellant Mr Fournier advanced constructive and considered submissions.  He advanced “mild” criticism of the Judge with reference to the issue of self-discipline.  He claimed that this was irrelevant because the home detention monitoring system handles that aspect.  Mr Fournier also argued that the Judge had placed too much weight on the appellant’s attitude towards cannabis and, given that

he was willing to comply with the law in the future, Mr Fournier submitted that the appellant should not be punished for that attitude.

[12]     The Judge’s conclusion as to the willingness of the appellant to flout Court orders was also challenged by Mr Fournier.   He submitted that such conclusion failed to take into account a number of factors:  the probation officer’s comment that there were no non compliance issues;     that the last driving whilst disqualified offence was five years old and the appellant had complied with it;   and the testimonials before the Court which were contrary to the Judge’s conclusion.

[13]     Mr Fournier submitted that all of this led the Judge to incorrectly answer the rhetorical question that he had posed.   In all the circumstances, submitted Mr Fournier,  the  necessary  denunciation  and  deterrence  could  be  met  by  home detention, especially where the commerciality was not high.

Discussion

[14]     As Mr Wall rightly observed, the sentencing Judge faced a dilemma. On the one hand, the appellant was able to muster many favourable aspects, including his work ethic, attitude towards family responsibility, and willingness to assist others. On the other, was the serious nature of this offending, the involvement of firearms and the appellant’s low motivation to change his attitude towards cannabis.

[15]     Mr Fournier  responsibly acknowledged that  this is an appeal against  the exercise of a discretion.  It is not for me to undertake the sentencing exercise afresh. Rather, I have to determine whether the Judge erred in the exercise of his discretion in a way that would justify intervention by this Court.

[16]     While I have a good deal of sympathy for the appellant having regard to his otherwise favourable background, I am afraid that it has not been demonstrated that the Judge erred in the exercise of his discretion.   All the factors relied on by the Judge were relevant and it was for him to weigh their significance.   A factor not mentioned by the Judge that weighs most heavily with me is that firearms were involved.    Despite  Mr  Fournier’s  valiant  attempt  to  neutralise  that  factor,  it  is

apparent from the appellant’s comment to the police that the firearms were for his personal safety.   This indicates a link with the drug offending.   The Courts have consistently condemned the use of firearms in connection with drug activities and there can be little doubt that the involvement of firearms in this case justified deterrence which could not have been achieved by home detention.

[17]     The appeal is dismissed.

Solicitors:         Crown Solicitor, Christchurch

T Fournier, Christchurch