R v Bell - [2012] NZHC 1733

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-019-2716 [2012] NZHC 1733

THE QUEEN

v

MICHAEL JAMES BELL

Hearing: 17 July 2012

Counsel: S N Cameron for Crown
J Raleigh for Prisoner

Judgment: 17 July 2012

SENTENCING REMARKS OF LANG J

R V MICHAEL JAMES BELL HC HAM CRI-2012-019-2716 [17 July 2012]

[1] Mr Bell, you appear for sentence today having pleaded guilty in the District Court to charges of producing the Class B controlled drug cannabis oil, being in possession of the Class C controlled drug cannabis for the purpose of sale or supply and cultivating the Class C controlled drug cannabis. The maximum penalties for those offences are sentences of 14 years, eight years and seven years imprisonment respectively.

[2] The District Court committed you to this Court for sentence.

The facts

[3] The facts that gave rise to the charges against you are contained in a summary of facts with which you take no issue.

[4] The police executed a search warrant on a rural property near Cambridge on

19 April 2012. The property comprised a 60 acre farmlet that had a number of buildings on it. One of the buildings towards the rear of the property was a large stables. It transpires that you had access to those stables through an arrangement with the owner of the property.

[5] When the police searched the stables, they found a sophisticated security and locking system in place. When they went inside, they found large quantities of cannabis plant. They found more than 10 kilograms of cannabis head material. They also found approximately five kilograms of much lower grade cannabis cabbage material.

[6] There is no evidence before me as to the likely value of the cannabis that the police found. Nevertheless, ten kilograms of cannabis head is a significant quantity of cannabis.

[7] The police also found a saucepan that contained traces of cannabis oil, together with a cooker that had obviously been used to heat the mixture. Nearby

were three empty, or partly empty, containers of isopropyl alcohol, a key ingredient in producing cannabis oil from cannabis plant. The cannabis cabbage material that the police found would also be ideal for use in manufacturing cannabis oil.

[8] When the police spoke to you about what they had found, you readily acknowledged your involvement in the cultivation of the cannabis. You said that you needed the money for your father.

[9] The police went back to the property approximately five days later, and searched around the back of the stables. There they found the remains of a reasonably large cannabis plot. Three cannabis plants remained growing, and the police found approximately 100 holes where other plants had been dug out. This would be broadly consistent, in my view, with the quantity of cannabis plant material the police found inside the shed. The cannabis plot had a watering system installed, but was otherwise reasonably rudimentary in nature.

The circumstances in which guilty pleas were entered

[10] It is…

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 R v Bell

Details

AGLC: R v Bell [2012] NZHC 1733
Case: [2012] NZHC 1733
Decision Date: 17 July 2012

CaseChat Overview and Summary

Michael James Bell was sentenced in the High Court of New Zealand, Hamilton Registry, for producing Class B controlled drug cannabis oil, possessing Class C controlled drug cannabis for the purpose of sale or supply, and cultivating Class C controlled drug cannabis. The maximum penalties for these offences were sentences of 14 years, eight years, and seven years imprisonment, respectively. The District Court had committed Bell to this Court for sentence. The facts of the case involved the police executing a search warrant on a rural property near Cambridge, where they found a sophisticated security and locking system in place, large quantities of cannabis plant, and a saucepan containing traces of cannabis oil, together with a cooker that had obviously been used to heat the mixture. Bell readily acknowledged his involvement in the cultivation of the cannabis.

The legal issues the court was required to decide included the starting point for the sentence, the level of discount to reflect Bell's guilty pleas, and the factors that should be taken into account in determining the final sentence. The court considered the Sentencing Act 2002 and the Court of Appeal's decision in R v Terewi, which identified a band of offending involving low-level cultivation of cannabis but that nevertheless has a commercial flavour, where a starting point of between two and four years imprisonment would be selected. The court also considered the aggravating and mitigating factors in Bell's case, such as his previous convictions, his long-term use of cannabis, and his father's health difficulties.

The court's reasoning and outcome were that Bell's offending fell within the band of low-level cultivation of cannabis with a commercial flavour. The starting point of three years imprisonment on all charges, with a 25 per cent discount to reflect guilty pleas, was appropriate. The court proposed to reduce Bell's sentence by two months to reflect mitigating factors personal to him, leaving an end sentence of two years one month imprisonment. However, the court decided not to impose a sentence of home detention due to Bell's long list of previous convictions and his recent breaches of bail conditions.

The final orders were that Bell was sentenced to two years one month imprisonment on each of the charges to which he had pleaded guilty, with the sentences to be served concurrently. The court also made an order for the destruction of the drug-related paraphernalia found in and around the shed in which the cannabis was found, reserving leave to both parties to ask the court to determine the matter in case of any dispute as to which items may be drug-related.

Orders