Leather v R - [2011] NZCA 59

IN THE COURT OF APPEAL OF NEW ZEALAND

CA541/2010
[2011] NZCA NO 59

BETWEEN GEOFFREY DAVID BRYANT LEATHER
Appellant

AND THE QUEEN
Respondent

Hearing: 21 February 2011

Court: O'Regan P, Chisholm and Priestley JJ

Counsel: J M Holmes and C Andersen for Appellant
K A L Bicknell for Respondent

Judgment: 10 March 2011 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe total sentence of six years imprisonment is quashed and replaced with a total sentence of five and a half years imprisonment.
CIn particular, the sentences on all the Tauranga charges are quashed and replaced with concurrent sentences of 18 months imprisonment on counts 1—5 and one years imprisonment on count 6. This sentence of 18 months imprisonment is cumulative on the sentence of four years imprisonment for the Auckland offending.

_______________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

Introduction

Having pleaded guilty in the Auckland District Court to 10 charges involving the cultivation of cannabis and related offending the appellant was sentenced by Judge Rollo to a total of six years imprisonment.[1] He appeals against that sentence on the grounds that it was manifestly excessive. In particular he contends that the starting point was too high, there is an unjustifiable disparity between his sentence and the sentences of his co-offenders, the totality principle was offended, and insufficient discount was given for mitigating factors.

The offending

[1] Leather v R DC Tauranga CRI-2009-070-10028, 22 July 2010.

The offending can be divided into two categories that can be conveniently described as the “Auckland offending” and the “Tauranga offending”.

The Auckland offending

On 17 December 2008 a search warrant was executed at Auckland addresses the police believed were being used by the appellant and two other persons, Simon Prest and Shaun Kennedy, for a major cannabis operation.
At 6D Enterprise Drive, Henderson, the police located a large and complex growing operation. It utilised a number of rooms, including six climate controlled shipping containers, as growing rooms. A total of 1217 cannabis plants were located, of which 979 were mature. Growing equipment including soil, pots, lights, fans and fertilisers were found as well as four 28 gram bags containing dried cannabis head. The activities at this address gave rise to count 1 (which jointly charged the appellant and his two co-offenders with cultivating cannabis).
A storage facility described as National Mini Storage at 7 Tony Street, Henderson, was found to contain numerous growing chemicals and equipment as well as electronic scales, pots, lights and numerous resealable plastic bags. There were also two boxes containing 26 large bags of cannabis head totalling 4.5kg in weight. This offending gave rise to count 2 (which charged the appellant and his two co-offenders with possession of cannabis for sale).
The third property at 8 Preston Avenue, Henderson, did not involve the appellant’s two co-offenders. Two rooms in the house, which had extraction fans and light fittings, had been previously used for growing cannabis. Another room currently being used for growing cannabis contained…

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.

Continue reading Leather v R

Details

AGLC: Leather v R [2011] NZCA 59
Case: [2011] NZCA 59
Decision Date: 10 March 2011

CaseChat Overview and Summary

In the case of Leather v R, Geoffrey David Bryant Leather appealed against the sentence of six years imprisonment imposed by Judge Rollo in the Auckland District Court. Leather had pleaded guilty to 10 charges related to the cultivation of cannabis and associated offences. Leather argued that the sentence was manifestly excessive, primarily due to the starting point being too high, the disparity between his sentence and those of his co-offenders, the violation of the totality principle, and insufficient consideration of mitigating factors.

The court considered Leather's arguments and found that while the starting point of six years was acceptable, the 18-month uplift for personal Auckland offending was excessive. The court also noted that the approach to the Tauranga offending was justified, as it constituted separate offending in terms of time and place, and a cumulative sentence was appropriate. Regarding the totality principle, the court found that the total sentence of six years was manifestly excessive, and that the uplifted starting point for the Auckland offending should not have been greater than seven years, with three years being sufficient for the Tauranga offending. The court adjusted the sentence to five and a half years imprisonment, ensuring that the total sentence fairly reflects the totality of Leather's offending.

In conclusion, the appeal was allowed, and the sentence of six years imprisonment was quashed and replaced with a total sentence of five and a half years imprisonment. The sentences on all the Tauranga charges were quashed and replaced with concurrent sentences of 18 months imprisonment on counts 1–5 and one year imprisonment on count 6. The sentence of 18 months imprisonment is cumulative on the sentence of four years imprisonment for the Auckland offending.

Orders