Lord v R - [2012] NZCA 276

IN THE COURT OF APPEAL OF NEW ZEALAND

CA654/2011
[2012] NZCA 276

BETWEEN HILO LORD
Appellant

AND THE QUEEN
Respondent

Hearing: 12 June 2012

Court: White, Rodney Hansen and Fogarty JJ

Counsel: H S Edward for Appellant
K Raftery for Respondent

Judgment: 26 June 2012 at 3.00pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Fogarty J)

Introduction

The appellant, Mr Hilo Lord, pleaded guilty on 18 July 2011, to six offences against the Misuse of Drugs Act 1975:
(a)four charges of selling a Class C controlled drug, cannabis, contrary to s 6(1)(e); and
(b)two charges of possessing cannabis for supply, contrary to s 6(1)(f).
On 15 September 2011 he was sentenced in the District Court to two years two months’ imprisonment. He now appeals that sentence.
The ground of appeal is that the sentencing Judge erred in taking as a starting point of two years nine months when in “similar cases” the starting point range was between two years and two years six months.

Offending

During November and December 2010 the police mounted a special operation that was code-named “Strike”. The operation stemmed from continuing concerns expressed by members of the Rotorua community about the sale and supply of illicit drugs. A number of undercover police officers were tasked with visiting various addresses within the area where they would attempt to purchase controlled drugs.
The appellant sold cannabis on a total of four occasions over a nine week period. Three times the sale was to an undercover police officer and the fourth to a member of the public. The sales were for small amounts of cannabis. The appellant was selling small snap-lock bags known as “baggies” containing approximately one gram of cannabis, which is sufficient for two cannabis cigarettes. The first sale was for one bag. The second sale, the next day, was for another bag. The third sale was for a single bag. The fourth sale was identified when the police stopped a vehicle leaving the appellant’s address and the driver was found in possession of three cannabis baggies which he had just purchased.

Relevant law

It was common ground that the leading decision guiding sentencing is the decision of this Court in R v Terewi.[1] It was also common ground that the offending could be described as “small scale commercial” and fell to be determined within category 2 as defined in Terewi as follows:[2]
Category 2: encompasses small-scale cultivation of cannabis plants for a commercial purpose, i.e. 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.
[1] R v Terewi [1999] 3 NZLR 62 (CA).
[2] At [4].
Mr Edward, for the appellant in this Court, relied on six cannabis sentencing decisions, all of which had a starting point of less than two years nine months.
R v Hauparoa[3] involved…

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 Lord v R

Details

AGLC: Lord v R [2012] NZCA 276
Case: [2012] NZCA 276
Decision Date: 26 June 2012

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Hilo Lord appealed against his sentence for six drug-related offences under the Misuse of Drugs Act 1975. Lord pleaded guilty to four counts of selling cannabis and two counts of possessing cannabis for supply. He was sentenced in the District Court to two years and two months' imprisonment, which he now contests. The primary ground of appeal is that the sentencing judge erred in setting the starting point of the sentence at two years and nine months, when in similar cases, the starting point ranged between two years and two years and six months. The appellant argued that the sentence was excessive and that it would result in him serving the full term without eligibility for automatic release under the Parole Act 2002.

The court examined the appellant's offending, which involved selling cannabis to undercover police and members of the public over a nine-week period in late 2010. The court noted that the starting point for sentencing in such cases generally falls between two and four years, but a lower starting point may be justified if the sales are infrequent and of limited extent. The court reviewed several similar cases and found that the starting points ranged from two years to two years and six months. However, the court found that the sentencing judge was entitled to place the offending in the lower middle band of category 2 in Terewi. The court concluded that the sentence of two years and two months was not manifestly excessive and was within the range of sentences for similar cases.

The court also noted that the consequences of the sentence under the Parole Act 2002 were irrelevant to the sentencing decision. The court found that the sentencing judge had considered the relevant authorities and had applied them appropriately to the facts of the case. The appeal against the sentence was dismissed.

Orders