R v Connolly - [2012] NZHC 1950

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2012-021-706 [2012] NZHC 1950

THE QUEEN

v

JAMES FRANCIS CONNOLLY

Hearing: 6 August 2012

Counsel: S A Law for Crown
K M Marriner for Prisoner

Sentence: 6 August 2012

SENTENCING NOTES OF DOBSON J

[1] You are appearing for sentencing this morning on three charges to which you have pleaded guilty. You were charged with possessing cannabis plant material for supply, cultivating cannabis and possessing equipment for the cultivation of cannabis. The maximum penalties for those offences are eight, seven and five years’ imprisonment respectively.

[2] Your case began in the District Court at Hawera. On sentencing for these convictions, the District Court could not sentence you to more than two years’ imprisonment. The District Court Judge accepted a submission on behalf of the Police that there ought to be consideration given to a more severe penalty than that, and accordingly he declined to deal with the matter, and the result is that it has come
before me today in this Court.

R v CONNOLLY HC NWP CRI 2012-021-706 [6 August 2012]

[3] Your present offending was revealed when, as a consequence of other, unrelated, offending, the Police conducted a search of the house you occupy early on
1 April this year. They discovered a relatively sophisticated cannabis growing operation in both a garden shed erected within the garage at the property, and a tent also erected within the garage. Both growing operations were assisted by lights, and in one case a fan. There were 26 cannabis seedlings in the garden shed, and
45 plants of up to 50 centimetres tall in the tent.

[4] The Police also located a substantial amount of dried cannabis, some of it divided into smaller quantities and stored in various places in the house. But there was a grand total of about 4.5 kilos of dried material and some 205 grams of cannabis head material.

[5] Your explanation for the plants growing at the property was that it was a small amount for your personal use. As to the large volume of some 4.5 kilos of dried material, you told the Police you had stolen it from an outdoor plot some
12 months before the Police search, and did not destroy it, knowing that it had some value. As to the use of the cannabis, you deny that you have been actively selling it to anyone, but acknowledged that you would occasionally share cannabis with your friends and not reject offers they made to pay for the cannabis they used.

[6] My approach to sentencing has to have regard to the purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act 2002. Of the purposes in s 7, in this case it is relevant to hold you accountable for the harm done to the community by this offending, to promote in you a sense of responsibility for, and an acknowledgement of, the harm that such offending causes, to denounce…

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 Connolly

Details

AGLC: R v Connolly [2012] NZHC 1950
Case: [2012] NZHC 1950
Decision Date: 6 August 2012

CaseChat Overview and Summary

James Francis Connolly was convicted of possessing cannabis plant material for supply, cultivating cannabis, and possessing equipment for the cultivation of cannabis. The case was heard in the High Court of New Zealand, New Plymouth Registry. The court was tasked with determining an appropriate sentence for Connolly, taking into account the principles and purposes of sentencing as outlined in the Sentencing Act 2002.

The legal issues that the court had to decide included the appropriate sentencing range for the offences committed, the aggravating and mitigating factors, and whether special release conditions should be imposed as part of the sentence. The court referred to previous cases involving similar cannabis cultivation and possession offences to determine a suitable starting point for the sentence. The court also considered Connolly's personal circumstances, criminal history, and level of remorse.

The court determined that the appropriate starting point for the sentence was two years and eight months' imprisonment, taking into account the seriousness of the offences and the presence of aggravating factors such as the volume of cannabis and the sophistication of the growing operation. The court added an additional five months to the sentence due to Connolly's criminal history and the premeditated nature of the offences. The court then applied a 25% reduction for Connolly's early guilty plea, resulting in a final sentence of two years and four months' imprisonment. The court decided not to impose special release conditions as it did not have jurisdiction to do so.

The final orders of the court were that Connolly be imprisoned for two years and four months, and that an order for the destruction of the confiscated cannabis and cultivation equipment be made under section 32 of the Misuse of Drugs Act. The court also noted that the special release conditions recommended in the pre-sentence report could not be lawfully imposed and would need to be considered and imposed by others.

Orders