Needham v Police - [2012] NZHC 2136

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-125 [2012] NZHC 2136

BETWEEN DAN DESMOND NEEDHAM Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 20 August 2012

Appearances: R Thomson for the Crown
Appellant in Person

Judgment: 23 August 2012

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 23 August 2012 at 10 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Crown Solicitors, PO Box 2118, Auckland 1140
Copy To: D Needham, 1133 New North Road, Mt Albert, Auckland

NEEDHAM V POLICE HC AK CRI-2012-404-125 [23 August 2012]

[1] Mr Needham appeals against a sentence of 10 months’ home detention

imposed on him by the District Court on 22 March 2012 in relation to:

(a) one count of cultivation of cannabis (Misuse of Drugs Act 1975, s 9(1));

(b) one count of possession of cannabis for supply (Misuse of Drugs Act

1975, s 6); and

(c) one count of selling cannabis (Misuse of Drugs Act 1975, s 6(1)(e)).

[2] Those offences carry maximum penalties of seven, eight and eight years’

imprisonment respectively.

[3] At the heart of Mr Needham’s appeal is his contention that the sentence was manifestly excessive because he should have been sentenced to intensive supervision instead of home detention.

Facts

[4] The following facts were accepted by Mr Needham.

[5] Mr Needham, lives with his co-defendant, Sharlene Peeni. In around April

2011, they discussed growing cannabis as an extra source of income and made a mutual decision to proceed. Mr Needham purchased the requisite materials and set up a cannabis growing operation in the garage of a house in Avondale, where Ms Peeni was the legal tenant.

[6] The operation comprised a fabric tent-like structure, which sealed off a section of the garage. Inside the tent were household fans to circulate air and an artificial light source. In around May or June 20, cannabis seedlings were planted in the tent. The plants were cared for mostly by Mr Needham, but with some assistance from Ms Peeni.

[7] Around the beginning of September, Mr Needham harvested several plants and dried them for sale. He sold tinnies for $20 and larger bags for $50. During September the couple made over $1,500 from the sales.

[8] On 27 September 2011, Police executed a search warrant at the address. They found 13 mature cannabis plants ready for harvesting and 324 grams of cannabis ready for sale. At the price Mr Needham was charging, this equated to a potential earning of $6,480. The cannabis plants not yet harvested had a potential yield of $3,900. The operation was assessed to have potential earnings of $24,000 per annum.

District Court Decision

[9] Mr Needham sought and obtained a sentencing indication. In it, Judge Ryan recorded her view that the offending was at the bottom of Terewi band 2 and that (taking into account the number of offences) a starting point of 28 months was appropriate.[1] After a 25 per cent discount for guilty pleas (22 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 Needham v Police

Details

AGLC: Needham v Police [2012] NZHC 2136
Case: [2012] NZHC 2136
Decision Date: 23 August 2012

CaseChat Overview and Summary

In the case of Needham v Police, the appellant, Dan Desmond Needham, appealed against his sentence of 10 months' home detention, which was imposed by the District Court on 22 March 2012. The sentence was related to three charges under the Misuse of Drugs Act 1975, including cultivation of cannabis, possession of cannabis for supply, and selling cannabis. The court examined whether the sentence was manifestly excessive, considering that the appellant argued for a sentence of intensive supervision instead of home detention.

The legal issues in the case involved the interpretation of the Misuse of Drugs Act 1975, the appropriateness of the sentence imposed by the District Court, and whether there was any basis to conclude that the sentence was manifestly excessive. The appellant argued that the home detention sentence was more difficult than anticipated and that he should have been sentenced to intensive supervision due to the incompetence of his counsel. The court also considered the pre-sentence report, which recommended a sentence of intensive supervision due to concerns about the volatility in the appellant's domestic relationship.

The court held that the appellant's contention that the sentence was manifestly excessive was not supported. The court found that the District Court Judge had appropriately considered the appellant's personal circumstances and the steps he had taken to address issues in his domestic relationship. The court also found that the starting point of 28 months' imprisonment was appropriate for the appellant's offending, and that the sentence imposed was within the range of penalties for the offences. The court dismissed the appeal, holding that there was no basis to interfere with the sentence imposed by the District Court.

The final orders of the court were that the appeal was dismissed, and the sentence of 10 months' home detention, with three months' post-release conditions, imposed by the District Court on 22 March 2012, was upheld.

Orders