Ngarino v R - [2011] NZCA 236

IN THE COURT OF APPEAL OF NEW ZEALAND

CA809/2010
[2011] NZCA 236

BETWEEN TROY ROBIN DIXON
Appellant

AND THE QUEEN
Respondent

Hearing: 9 May 2011

Court: Chambers, Venning and Courtney JJ

Counsel: H D M Lawry for Appellant
K A L Bicknell for Respondent

Judgment: 1 June 2011 at 9 am

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe sentences of four years nine months’ imprisonment on each charge are quashed.
C In substitution therefor, sentences of four years’ imprisonment on count 2, one year’s imprisonment on count 1, and nine months’ imprisonment on count 3, all to be served concurrently, are imposed.

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REASONS OF THE COURT

(Given by Courtney J)

Introduction

During searches of three Northland properties in July 2006, police found hydroponic cannabis operations and varying quantities of cannabis plants, seedlings and dried material. They charged the appellant as the person responsible for the cultivations. Eventually, on the morning his trial was due to start (4 October 2010), he pleaded guilty in the District Court at Whangarei to three counts of cultivating cannabis. Judge Moore subsequently sentenced him to four years nine months’ imprisonment.[1] This appeal against sentence is brought on the grounds that the starting point of six years taken by the Judge was too high and resulted in a manifestly excessive sentence.
[1] R v Dixon DC Whangarei CRI-2006-088-3258, 1 November 2010.
Sentencing proceeded on the basis of an agreed summary of facts. We note, however, that during sentencing the Judge referred to a remark allegedly made by the appellant as to the overall number of cannabis plants present. This statement did not form part of the agreed summary of facts and was, in fact, inconsistent with it. Conversely, in argument in this Court, Mr Lawry, for the appellant, sought to rely on an admission said to have been made by the prosecutor as to the nature of appellant’s role in the offending. This, too, was inconsistent with the agreed summary of facts and was disputed by the Crown at the appeal hearing. It is important that counsel for both Crown and defence ensure that where a plea is to be entered on the basis of an agreed statement of facts, care is taken to ensure that all the relevant facts are recorded accurately.
The summary of facts recorded that the following quantities of cannabis plants and dried material were found:

93 cannabis plants at various stages of maturity were found at 109 Otaika Road, Whangarei. It was agreed that these plants would, if allowed to grow to maturity and then harvested, have given rise to product with a street value of $93,000: count 1.
266 cannabis plants at various stages of maturity were found at 32 Paranui Valley Road, Whangarei. The value of these plants once mature was estimated at $266,000. In addition, there were 17 kilograms of dried cannabis leaf and stalk with an estimated value of $2,000 and a further 1.5 kilograms of cannabis heads estimated at $3,500: count 2.

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 Ngarino v R

Details

AGLC: Ngarino v R [2011] NZCA 236
Case: [2011] NZCA 236
Decision Date: 1 June 2011

CaseChat Overview and Summary

The case of Ngarino v R involved the appellant, Troy Robin Dixon, who was convicted of cultivating cannabis at three different properties in Northland, New Zealand. Dixon appealed against his sentence, arguing that the starting point of six years taken by the Judge was too high and resulted in a manifestly excessive sentence. The appeal was heard by the Court of Appeal of New Zealand, consisting of Chambers, Venning, and Courtney JJ. The court found that the starting point was indeed too high and substituted the original sentences with new ones, namely four years’ imprisonment for count 2, one year’s imprisonment for count 1, and nine months’ imprisonment for count 3, all to be served concurrently.

The main legal issue in this case was the appropriateness of the starting point for the sentence, which is determined by the degree of commerciality involved in the cannabis cultivation. The Court of Appeal considered the amount of plants and dried material found, together with other indications of commerciality such as cash and indoor hydroponic growing conditions. The court found that the Judge had erred in assessing the annual productive capacity of the operation, as there was no evidence of any sales from this operation. The court concluded that the appropriate starting point would have been five years, rather than six.

The court also examined the discounts given for the appellant's personal circumstances and guilty plea. The Judge had given a discount of nine months for the appellant's personal circumstances, which the court found to be justified. However, the court found that the discount of six months for the guilty plea was too high and substituted it with a three-month discount, in line with the Supreme Court's revamped guideline.

In conclusion, the Court of Appeal allowed the appeal and substituted the original sentences with new ones, taking into account the appropriate starting point, discounts for personal factors and guilty pleas, and the need for concurrent sentences. The final orders were that Dixon was to serve four years’ imprisonment for count 2, one year’s imprisonment for count 1, and nine months’ imprisonment for count 3, all to be served concurrently.

Orders