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…

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.

Keep reading for free

Create a free CaseChat account to read Kennedy v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NZHC 3066
Decision Date: 11 December 2017

CaseChat Overview and Summary

The High Court of New Zealand in Invercargill heard an appeal by Heath Karaitiana Kennedy against his sentence of 18 months imprisonment for possessing and cultivating cannabis for supply. Kennedy argued that the sentence was manifestly excessive because there was no evidence of commerciality in the offending, a lower starting point should have been adopted, and thus the end sentence was excessive. The court was required to determine whether there was an error in the sentence imposed by the District Court, and if so, whether an alternative sentence should be imposed. The appeal hinged on whether the sentence was either manifestly excessive or inappropriate, as the court could not substitute its own views for those of the sentencing judge.

The court examined the evidence of commerciality in the offending, which included the quantity of cannabis found, the presence of digital scales and small zip lock bags, and the appellant's guilty plea. The District Court had placed the offending in category 2 of R v Terewi, which encompasses small-scale cultivation of cannabis plants for a commercial purpose. The court determined that the starting point of two years was well within the range given the amount of cannabis found and the evidence of a commercial operation. The court found no error in the sentence imposed, and dismissed the appeal.

The court's reasoning was based on the specific facts of the case and the evidence of commerciality presented. The court acknowledged that the starting point could have been slightly higher within the band 2 category of Terewi, but it was not in error to place the offending at the bottom of the band 2 category. The court also noted that the District Court judge had given full credit for the appellant's guilty pleas on both charges. Therefore, the appeal was dismissed.

Orders