Police v Abbott - [2012] NZHC 50

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2011-054-3393 [2012] NZHC 50

NEW ZEALAND POLICE

v

BLAIR NORMAN ABBOTT

Hearing: 2 February 2012

Appearances: M Davie for the Police
P Coles for the prisoner

Judgment: 2 February 2012

SENTENCING NOTES OF CLIFFORD J

[1] Mr Abbott you appear for sentencing here today, after the District Court declined jurisdiction to sentence you, on charges of cultivation of cannabis (s 9
Misuse of Drugs Act 1975), and threatening to kill (s 306 Crimes Act 1961). The cannabis charge involves a maximum penalty of seven years’ imprisonment, as does the charge of threatening to kill. You pleaded guilty to both of these charges at an early stage.

Facts

[2] At the time of your offending you were living with Ms Maria Millan at
Makino Road in Feilding. You and Ms Millan had been in a relationship on and off for seven years, although by this time you were occupying separate bedrooms.

POLICE V ABBOTT HC PMN CRI-2011-054-3393 2 February 2012

[3] Ms Millan discovered that you were growing cannabis in your bedroom. You and Ms Millan had a number of arguments about that and she told you to remove the plants but you refused.

[4] On 2 December 2011, Ms Millan again argued with you about the cannabis, at which point she told you that if you did not leave she would call the Police. You said to Ms Millan “I will kill you then I will use dirty tactics. I will say the cannabis is yours”.

[5] After leaving the address for a short period of time, Ms Millan returned and once again told you that she was going to call the Police. At this point you replied “If you call the Police I will slit your throat from ear to ear”.

[6] Ms Millan then left the address and called the Police.

[7] When searching the address, the Police located a hydroponic cannabis growing operation of some sophistication in your bedroom comprising;

(a) three mature plants growing under artificial light in the wardrobe;

(b)140 plants (approximately 8cms in height) growing in a hydroponic trough; and

(c) forty four plants (approximately 15cms in height) growing in pots together with miscellaneous equipment relating to growing cannabis indoors, including grow lights, compost, transformers, pots, heat pad, hydroponic trough, piping and water pump, thermometer and fertiliser.

[8] Thus, in total, there were 187 plants.[1]

Personal circumstances

[1] I note that in the sentencing notes I read in Court I mistakenly referred to there being four plants of approximately 15cms in height, and a total of 147 plants overall. I do not consider that error to be material and have corrected these sentencing notes accordingly.

[9] I turn to your personal circumstances. You are 37 years old and currently reside – pursuant to bail conditions – at your parents’ home in Fielding with your 12 year old daughter.

[10] As I assess matters, there are three elements of your personal circumstances that are of…

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 Police v Abbott

Details

AGLC: Police v Abbott [2012] NZHC 50
Case: [2012] NZHC 50
Decision Date: 2 February 2012

CaseChat Overview and Summary

In the case of Police v Abbott, Blair Norman Abbott was sentenced by the High Court of New Zealand in Palmerston North after pleading guilty to charges of cultivating cannabis and threatening to kill. The District Court had declined jurisdiction to sentence Abbott on these charges. The cannabis cultivation charge carried a maximum penalty of seven years' imprisonment, as did the charge of threatening to kill. Abbott's relationship with Ms Maria Millan, with whom he was living at the time of his offending, was marked by arguments over his cannabis cultivation, culminating in threats made by Abbott against Millan.

The court had to decide on an appropriate sentence for Abbott, considering his extensive history of drug abuse and dependency, previous convictions for drug-related and violent offences, and his recent efforts towards rehabilitation. Abbott's drug use began at age 11 and included various substances. His criminal history included a prior conviction for cultivating cannabis and another for assaulting Millan. However, the court was also presented with evidence of Abbott's recent successful efforts to address his drug addiction and violent tendencies through residential courses and community programs.

The court considered the starting point sentence for Abbott's cannabis cultivation to be two and a half years' imprisonment, adjusted for his previous conviction and the concurrent threat to kill. After applying mitigating factors and Abbott's early guilty plea, the court determined a sentence of one year and eleven months' imprisonment. Given this term was less than 24 months, the court had jurisdiction to consider home detention. Considering Abbott's efforts at rehabilitation and the benefits of home detention, the court decided to sentence Abbott to eleven months' home detention at his parents' address in Feilding, along with 60 hours of community work. The court also ordered forfeiture as requested by the Police and imposed standard post-detention conditions for 12 months. The court refrained from imposing additional special conditions, noting the significant risk of reoffending if Abbott relapsed into his old habits.

Orders