IN THE COURT OF APPEAL OF NEW ZEALAND
CA177/2009
[2009] NZCA 287THE QUEEN
v
PAUL TEJA BRYANT
Hearing:1 July 2009
Court:Hammond, Simon France and Lang JJ
Counsel:Appellant in person (together with N R Healey as McKenzie Friend)
J M Jelas for Crown
Judgment:7 July 2009 at 3 pm
JUDGMENT OF THE COURT
A.An extension of time for appealing is granted.
B.Leave to have assistance from a McKenzie friend and to adduce fresh evidence on the appeal are granted.
C.The appeal against sentence is allowed. The sentence of two years three months’ imprisonment is quashed. Subject to the condition identified in [38], a sentence of four months’ home detention is imposed, together with the conditions set out in [35] and [36] of the judgment.
D.If a suitable home detention address is no longer available, a reduced sentence of 22 months’ imprisonment will be imposed instead.
E.An assessment of the suitability of the new home detention address is to be undertaken as soon as possible.
____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France J)
Introduction
[1] Mr Bryant appeals against a sentence of two years three months’ imprisonment on one charge of possessing cannabis for sale. The grounds of appeal are that the starting point was too high and insufficient credit was given for personal mitigating factors. At the start of the hearing, without opposition we made preliminary orders extending the time for appeal, allowing a McKenzie friend and allowing fresh evidence (namely an affidavit from Mr Bryant).
Facts
[2] Mr Bryant and a co‑offender were found carrying a large amount (44 kilograms) of recently cut cannabis out of the bush. The plot which provided the cannabis was found nearby. The men were originally charged with cultivation. However, following depositions, they pleaded guilty to the single count of possession for supply and were discharged on the cultivation charge.
[3] The cannabis plants which the offenders were carrying had come from 18 plants which, in a pruned state, ranged from 1.5 to 2.5 metres in height. The police dried off the cannabis and the resultant leaf and head material came to approximately 5 kilograms.
[4] Concerning value, the police estimates were based on evidence which indicated that cannabis head material could sell for between $2,000 and $5,000 per pound, or $200 and $500 per ounce, with $300 being a typical street value. Using these figures, the police estimated the cannabis possessed by these offenders had a potential value of $17,600 at $2,000 per pound or $42,253 at $300 per ounce. It can be seen that these figures take the lowest point of the range for bulk sales, and the mid‑point for ounce sales.
[5] Matters particularly addressed at sentencing were the circumstances under which the offenders came to be in possession of cannabis, and the street values.
Decision under appeal
[6] In the District Court, Judge Weir rejected the offenders explanation that they were out pig‑hunting and came upon the plot. Based on evidence filed for depositions, his Honour noted the…
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- R v Bryant [2009] NZCA 287
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- [2009] NZCA 287
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CaseChat Overview and Summary
The Court of Appeal noted that the Judge had rejected the offenders' explanation that they were out pig-hunting and came upon the plot. The Court noted that the Judge's remarks gave the implication that the offenders were responsible for the plot. However, the reality is that a charge of cultivation had been laid, but was the subject of a discharge under s 347 of the Crimes Act 1961. Sentencing had to proceed on the basis that the offenders had cut the cannabis from the plot in order to dry it and sell it. The Court of Appeal considered that the issue of who cultivated the plants was still a consideration.
The Court of Appeal considered the starting point of three years selected by the Judge was too high. The Court of Appeal considered that a starting point of two years six months imprisonment would have been appropriate. The Court of Appeal noted that the Judge’s remarks gave the appearance that he considered the cultivation allegation remained a relevant factor for sentencing purposes. The Court of Appeal was not persuaded that the Judge erred in failing to give greater credit than 25 per cent for the guilty plea. The Court of Appeal considered that the Judge did not err in the sentence imposed. However, the Court of Appeal considered that the starting point was too high. The Court of Appeal proposed to address this difficulty by imposing a post detention condition that will enable courses and programmes to be continued or undertaken.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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