R v Foreman - [2012] NZHC 1954

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2012-021-462 [2012] NZHC 1954

THE QUEEN

v

NORMAN JAMES FOREMAN

Hearing: 6 August 2012

Counsel: S A Law for Crown
K Marriner for Prisoner

Sentence: 6 August 2012

SENTENCING NOTES OF DOBSON J

[1] You are one of three sentencings for cannabis offending that I have to do today. In each of them, the Police have persuaded the District Court that an appropriate sentence for the convictions is likely to exceed the District Court’s jurisdiction. You are for sentence on convictions for cultivation of cannabis and possession of equipment for cultivation of cannabis, which carry maximum penalties of seven and five years’ imprisonment respectively. The maximum that the District Court could impose would have been a sentence of two years’ imprisonment and District Court Judge Roberts declined jurisdiction because he considered that he would have difficulty fashioning a sentence of less than two years.

[2] Your offending involved converting two of the bedrooms of your home into cannabis growing nurseries. After a tip-off, the Police executed a search warrant on

R v FOREMAN HC NWP CRI 2012-021-462 [6 August 2012]

2 May this year and located 97 mature cannabis plants, together with equipment for growing cannabis, and 856 grams of dried cannabis leaf. There were also 49 grams of dried cannabis bud. You admitted growing the cannabis and said that you did not use cannabis yourself at all. You pursued cannabis growing in an attempt to make a bit of money in hard times. Your partner has already been sentenced on a charge of allowing the premises to be used for these illegal activities.

[3] In your case, you have not been charged with possession of cannabis for sale. The Misuse of Drugs Act 1975 presumes that the quantity of cannabis found in your house was in your possession for the purposes of supply, but that presumption only applies directly where it relates to a charge of possession of cannabis. The law distinguishes between cultivating cannabis as a prohibited plant, and possession of
cannabis material harvested from such plants, as a prohibited class C drug.[1] In your

case, I have regard to the amount of dried cannabis plant material as an indicator of the scale of your cultivating activities, but do not treat it as reflecting the additional criminality that would arise if you were also charged with possession of the dried material, weighing about 850 grams, for the purposes of sale.

[1] R v Gillan (2006) 22 CRNZ 882.

[4] 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 acknowledgement of, the harm that such offending causes, to denounce the conduct involved in this offending and…

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 Foreman

Details

AGLC: R v Foreman [2012] NZHC 1954
Case: [2012] NZHC 1954
Decision Date: 6 August 2012

CaseChat Overview and Summary

In the case of The Queen versus Norman James Foreman, the defendant was convicted of cultivating cannabis and possessing equipment for cultivating cannabis. The case was heard in the High Court of New Zealand at New Plymouth. The legal issues before the court involved determining an appropriate sentence for these convictions, which carried maximum penalties of seven and five years' imprisonment, respectively. Given the District Court's jurisdictional limit of two years' imprisonment, the case was transferred to the High Court. The court had to consider the scale and sophistication of the cannabis cultivation operation, the absence of evidence regarding sales, and the defendant's personal circumstances, including his age, health, and demonstrated remorse.

The court adopted a sentencing approach that took into account the purposes and principles outlined in the Sentencing Act 2002. It considered the need to hold the defendant accountable, promote responsibility, denounce the conduct, and deter both the defendant and others from similar offending. The court also referenced the Court of Appeal's guidelines for cannabis-related offences, which suggested starting points between two and four years' imprisonment for small-scale commercial cultivation. Given the sophistication and scale of the defendant's operation, involving 97 mature cannabis plants, the court settled on a starting point of two years and eight months' imprisonment. Various mitigating factors, such as the defendant's early guilty plea, cooperation with the police, and remorse, led to a discount, resulting in a sentence of one year and nine months' imprisonment.

Considering the defendant's age, health, and employment situation, the court decided on a sentence of 11 months' home detention, nearly the maximum permissible duration. This decision aimed to balance the need for deterrence and community protection with the defendant's personal circumstances and the potential for rehabilitation. The court imposed specific conditions on the home detention, including restrictions on alcohol and non-prescription drug consumption, participation in budgeting and substance abuse education programs, and allowances for the defendant's shift work. The court also ordered the destruction of the seized cannabis plants and equipment under the Misuse of Drugs Act 1975.

Orders