Mowberry v R - [2012] NZHC 969

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2012-409-27

CRI 2012-009-3006 [2012] NZHC 969

BETWEEN KARL JOSEPH MOWBERRY Appellant

ANDTHE QUEEN Respondent

Hearing: 9 May 2012

Counsel: R M Buddicom for Appellant
A Raj for Respondent

Judgment: 9 May 2012

ORAL JUDGMENT OF GENDALL J

[1] This is an appeal by Karl Joseph Mowberry against a sentence of nine months home detention imposed upon him by District Court Judge A D Garland in the District Court at Christchurch on 22 March 2012. The appellant had pleaded guilty to one charge of cultivating cannabis.

Background

[2] The appellant and his partner lived together in Christchurch. The Police visited their premises on unrelated matters on 12 December 2011. They there found a number of cannabis plants growing in what could be said to have been a cultivation operation. In a bedroom there were 20 mature cannabis plants and eight drying stalks of cannabis head, together with electronic timers, a dehumidifier and heat lamps. Some mature cannabis plants and cultivating apparatus were located in the
bedroom wardrobe together with 2 grams of dried plant material.

MOWBERRY v R HC CHCH CRI 2012-409-27, CRI 2012-009-3006 [9 May 2012]

[3] Outside the premises a further 23 cannabis plants were located and some other cultivation apparatus. A total of 57 cannabis plants was seized. The appellant and his partner admitted they were cultivating it but stated it was for their own use.

[4] The appellant had no previous convictions for drug offences but had three for theft and one for obstruction.

[5] Judge Garland when imposing sentence noted the probation officer’s report, and referred to health difficulties of the appellant (he being on an Invalids Benefit) and the fact that he was assessed at a low risk of reoffending. His counsel had supported the probation officer’s recommendation for community service, although Judge Garland observed that it was accepted by the probation officer that home detention could be an appropriate alternative to imprisonment.

[6] The Judge then proceeded to consider the extent of the cultivation operation taking place and made some calculations as to the probable value of the yield of cannabis that might be obtained from 57 plants and what, in his opinion, the value might have been. The Judge drew the inference that it would have been too great for the potential yield to be only for personal use although he noted that the police accepted that the cannabis was intended mainly for personal use. The Judge said there was an element of commerciality in the cultivation, although clearly accepted that much was for the use of the appellant and his partner. The Judge in applying the
guidelines in R v Terewi[1] took as a starting point two years’ imprisonment. That is,

at the bottom end of band 2. He did not regard that there were aggravating personal circumstances requiring any uplift and allowed a generous discount of 25% for the early guilty plea which led to an indicative sentence of 18 months’…

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 Mowberry v R

Details

AGLC: Mowberry v R [2012] NZHC 969
Case: [2012] NZHC 969
Decision Date: 9 May 2012

CaseChat Overview and Summary

Karl Joseph Mowberry appealed against the sentence of nine months home detention imposed by District Court Judge A D Garland in the Christchurch District Court. The appellant pleaded guilty to cultivating cannabis, with a significant number of cannabis plants found at his residence during a police visit on unrelated matters. The appellant argued that the sentencing judge erred in concluding there was an element of commerciality in the offending and that the sentence was excessive.

The central issue in the appeal was whether the sentencing judge correctly inferred an element of commerciality in the offending and applied an appropriate starting point for the sentence. The court considered whether the number of plants and the sophistication of the operation justified a commercial purpose inference, and if so, whether the sentence imposed was appropriate.

The High Court found that the sentencing judge was entitled to infer a minor element of commerciality from the circumstances, particularly given the number of plants and the basic nature of the operation. However, the court considered that the degree of commerciality was comparatively minor and adjusted the starting point accordingly. The High Court concluded that a sentence of six months' home detention was appropriate, given the minor degree of commerciality and the overall circumstances.

The sentence of nine months' home detention was quashed, and a sentence of six months' home detention was imposed in its place.

Orders