Kennedy v Police

[2017] NZHC 3066

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2017-425-000046 [2017] NZHC 3066

BETWEEN

HEATH KARAITIANA KENNEDY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	11 December 2017
Appearances:	T J McCullum for Appellant R W Donnelly for the Respondent
Judgment:	11 December 2017

ORAL JUDGMENT OF DUNNINGHAM J

[1]      On 17 October 2017, the appellant, Mr Kennedy, was sentenced to 18 months’ imprisonment on one charge of possessing cannabis for supply and a further charge of cultivating cannabis for supply. He now appeals that sentence as manifestly excessive, asserting:

(a)       there was no evidence of commerciality of the offending;

(b)      a lower starting point should have been adopted; and

(c)       the end sentence imposed was therefore manifestly excessive.

KENNEDY v NEW ZEALAND POLICE [2017] NZHC 3066 [11 December 2017]

Background

[2]      On 15 August 2017, a search warrant was executed at the appellant’s residence. When the police arrived to execute the warrant, the appellant co-operated and led the police to  his  bedroom  to  show  them  a  10-litre water  container  half  filled  with

275 grams of cannabis head, an ammunition container with 126 grams of cannabis head stored inside four snap-lock bags.  Additionally, police located a snap-lock bag containing 58 grams of cannabis head, along with digital scales and other small zip lock bags used for storing cannabis.

[3]      The appellant then showed the police upstairs where eight rubbish bags full of cannabis leaf, weighing 1648 grams, were located.  The upstairs was also set up with a clothesline hung from the roof to dry cannabis.  In the freezer in the laundry there were five bags containing 1209 grams of cannabis leaf.   Three cannabis plants were located in the glasshouse at the rear of the property. A check of the garage revealed a further grow room with four plants at various stages of growth, along with a heat lamp and 158 cannabis clones.  There was a further 21 grams of cannabis head located in the appellant’s vehicle.

[4]      The  total  amount  of  cannabis  head  recovered  at  the  address  weighed

480 grams, along with almost 2.9 kilos of cannabis leaf.

Jurisdiction

[5]      Mr Kennedy appeals as of right.1   This Court can only allow the appeal if it is satisfied that there is an error in the sentence imposed and that an alternative sentence should be imposed.2    If the sentence under appeal can be properly justified having regard to relevant sentencing principles, this Court cannot substitute its own views for those of the sentencing Judge.  The sentence must be either manifestly excessive or inappropriate if the sentencing Judge’s discretion is to be interfered with.

[6]      It is not enough that the Judge made an error in his reasoning:  the focus is on the end sentence imposed rather than the process by which the sentence was reached.3

District Court sentencing

[7]      The District Court Judge held that the appellant’s offending fell into category

2 of R v Terewi.4   Category 2 encompasses small scale cultivation of cannabis plants for a commercial purpose, that is, with the object of deriving profit. The starting point for sentencing is generally between two and four years, but where sales are infrequent and of very limited extent, a lower starting point may be justified.

[8]      In this case, the Judge adopted a starting point of two years’ imprisonment, which was at the bottom of that band.  He then gave a full discount of 25 per cent for the appellant’s guilty plea, so an end sentence of 18 months’ imprisonment was imposed.   The Judge also observed that he would have preferred to sentence the appellant to home detention as it would have been the least restrictive outcome, but the appellant was unable to supply a suitable address for a sentence of home detention.

Appellant’s submissions

[9]      The appellant submits that nothing in the summary of facts indicates that there was commerciality to the offending on the part of the appellant.  In particular, there were no tick lists, money, phone records, evidence of sales or cannabis packaged for sale.   Furthermore, the appellant told police that he was growing the cannabis for personal use to deal with his chronic pain.

[10]     In light of this, the appellant submits that the starting point adopted by the District Court Judge was manifestly excessive and his offending was best categorised at either the upper end of category 1 in Terewi and that a starting point of 18 months’ imprisonment was appropriate.

Submissions for the New Zealand Police

[11]     The respondent submits that the starting point of two years was relatively lenient given the quantity of cannabis found and, in any event, was well within the range given the amount being grown, and the indicia of this being a commercial operation.

Analysis

[12]     In Devereau v Police, Mander J undertook an in-depth analysis of recent cannabis sentencing trends.5   In it he discussed a range of cases which fell within the description of a category 2 offence, but noted that some adopted a starting point below the two to four year bracket.6  However, equally, there have been a number of decisions which adopt the orthodox approach of Terewi and some of these are referred to in Devereau.7

[13]     However, as Mander J observed in Grainger v R:

[14]    …The variation in the starting point is perhaps the inevitable consequence of each case turning on its own circumstances. Furthermore, the Court  of Appeal  recognised  in  R  v  McGlip  when  declining  to  reassess sentencing policy for low-end commercial cannabis growing, there will be flexibility in the approach to be taken to such offending.   The sentencing discretion of the individual Judge at first instance when applying the guidance provided by the category 2 Terewi band is to be recognised.

[14]    The simple issue in this case is whether there is sufficient evidence of commerciality to justify a starting point at the bottom of band 2, or whether this should be treated as being sufficiently lacking in commerciality that the Judge was in error by not adopting a lower starting point.

[15]     In this case, the appellant has pleaded guilty to possession for supply and this operation was clearly beyond the scale required for personal use. The combination of

digital scales and small zip lock bags is evidence to support the commerciality of the

5      Devereux v Police [2017] NZHC 167.

6      Mowberry v R [2012] NZHC 969, Needham v Police [2013] NZHC 688, R v Rauhihi HC Palmerston North CRI-2008-031-1438, 1 May 2009 and R v McGilp (2006) 23CRNZ 526 (CA).

7      R v Edmonds CA 23/02 28 May 2002; R v McDonald HC Whangarei CRI-2011-088-3522,

5 September 2011.

supply and, indeed that was acknowledged today in submissions by Ms McCullum. The police pointed  out  in the original sentencing, that this evidence  suggests  a “growing operation of moderate commercial value”.

[16]     I am satisfied that the starting point of two years is well within range given the amount of harvested cannabis head and leaf found, the number of cannabis plants and the number of clones being grown and the associated evidence of a commercial operation.  While, on these facts, there is clearly room to have assessed the starting point as slightly higher within Terewi band 2 or, possibly lower, there can be no error in placing this offending at the bottom of the band 2 category.

[17]     As this was the only aspect of sentencing challenged, and the Judge obviously gave full credit for the guilty pleas on both charges, the appeal is dismissed.

Solicitors:

Southern Law, Invercargill

Preston Russell Law, Invercargill