[2] Your offending was detected as a result of a police operation targeting large- scale cannabis cultivation undertaken at various plots situated in wilderness areas in Western Southland and the Queenstown Lakes District. Your co-defendant, Mr Brian McCarthy, was heavily involved in this commercial cannabis operation.

[3] One of these cannabis plots was located near Glenorchy, it became the subject of covert surveillance by the police. On 9 April 2012, two men were captured on surveillance footage, wearing balaclavas, and harvesting the cannabis.
You were one of those men, and Mr McCarthy the other.

R v GRANT [2015] NZHC 2748 [5 November 2015]

[4] The Glenorchy cannabis plot comprised some 47 cannabis plants which yielded approximately 10 pounds of cannabis head. The street value of this cannabis is estimated to be $32,000, if sold in pound lots.

[5] Your involvement in the cultivation of the cannabis at Glenorchy involved you fertilising the cannabis plants at the same time as Mr McCarthy was removing the male plants, presumably in late January to mid February, in addition to your harvesting the cannabis in April.

[6] It has been submitted on your behalf, other than fertilising the plants on one occasion and being involved in their harvesting, you were not otherwise involved in the cannabis plot. It was submitted that Mr McCarthy was the main offender. Your role was said to be limited and that your motivation was to obtain cannabis, which you consume, and that you assisted Mr McCarthy in exchange for cannabis.

[7] It is clear, however, that you involved yourself in at least two of the three stages of the cultivation process. Furthermore, as the Crown submitted at your sentence indication hearing, the cannabis cultivation was a commercial exercise which, having regard to the sophistication of the plot’s construction and design, the fact that you and Mr McCarthy considered you needed to avoid detection by wearing masks, and the number of plants involved, is readily apparent. Therefore, as I told you at your sentence indication hearing, you must be sentenced on the basis, and that whatever your individual motivation - and as I have previously commented, I have reservations in that regard - you actively and knowingly assisted in the commercial cultivation of cannabis. The sentence will reflect that fact.

[8] Your offending falls into the second category described in Terewi, which encompasses small-scale cultivation of cannabis plants for a commercial purpose.1
The starting point is generally to be between two and four years but where sales are infrequent and of limited extent, a lower starting point may be justified.

[9] In assessing the appropriate…

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 Grant

Details

AGLC: R v Grant [2015] NZHC 2748
Case: [2015] NZHC 2748
Decision Date: 5 November 2015

CaseChat Overview and Summary

The High Court of New Zealand, Invercargill Registry, presided over by Mander J, heard the case of R v Grant concerning Andrew John Grant, who was charged with cultivating cannabis at Glenorchy on 9 April 2012. Grant's co-defendant, Brian McCarthy, was also heavily involved in a commercial cannabis operation. The court needed to determine the appropriate sentence for Grant's involvement in the cultivation, which included fertilising the plants and harvesting them. The court had to consider the nature of the cultivation as a commercial operation and Grant's role in it. The legal issues included assessing the appropriate starting point for sentencing, considering personal aggravating and mitigating factors, and determining whether credit for a guilty plea was applicable.

Mander J determined a starting point of two years imprisonment, considering the nature of the cannabis cultivation as a commercial enterprise and Grant's active participation in at least two stages of the process. The court acknowledged previous convictions for drug offences and balanced these with mitigating factors such as Grant's age, family responsibilities, and constructive lifestyle apart from the cannabis cultivation. The court also extended a one-month credit for the late guilty plea. Ultimately, the court substituted a one-year and 11-month prison sentence with 11 months of home detention, considering Grant's suitability for this less restrictive sentence. The court emphasised that non-compliance with home detention would result in imprisonment.

Orders