R v Harris - [2009] NZCA 471

IN THE COURT OF APPEAL OF NEW ZEALAND
CA574/2009
[2009] NZCA 471
THE QUEEN
v
MICHAEL DOUGLAS HARRIS
Hearing:28 September 2009

Court:Robertson, Chisholm and Priestley JJ
Counsel:P Nee Harland for Appellant

B D Tantrum for Crown

Judgment:13 October 2009 at 12.30 pm

JUDGMENT OF THE COURT

A The appeal is allowed.
BThe sentence of two years and two months’ imprisonment for cultivating cannabis is quashed and replaced with a sentence of one year and ten months’ imprisonment.

____________________________________________________________________
REASONS OF THE COURT
(Given by Chisholm J)
Introduction
[1]        After the appellant pleaded guilty in the Hastings District Court to cultivating cannabis and permitting premises to be used for smoking cannabis, that Court declined jurisdiction and the matter was remitted to the High Court for sentence. Subsequently Wylie J sentenced the appellant to two years and two months’ imprisonment for cultivating cannabis, with a concurrent sentence of nine months for permitting premises to be used. The appellant appeals against his sentence.
Facts
[2]        When the police were executing a search warrant at the appellant’s address for unrelated purposes they noticed a strong smell of cannabis coming from the house. Having invoked their powers under s18 of the Misuse of Drugs Act 1975, they searched the house and found that a large scale and sophisticated cannabis growing operation was being conducted in one of the bedrooms.
[3]        The bedroom had been separated into three compartments. The first compartment contained approximately 37 mature cannabis plants, the second approximately 19 younger plants plus two “mother” plants, and the third several seedlings which had been cloned from the mother plants. Approximately 788 grams of cannabis leaf and 138 grams of cannabis head were also located. The operation involved a pump system, flowing water, temperature controls, fans and growing lights.
[4]        A further 30 potted seedlings were found in the garage.
[5]        In explanation the appellant told the police that he smoked cannabis for medical reasons because it helped to alleviate the constant pain from which he suffered. He also admitted that a seating area in the garage had been used for “communal” smoking of cannabis which involved “local boys”.
The appellant
[6]        The appellant is 59 years of age. He has two previous convictions: a conviction in 1991 for possession of cannabis seeds and a conviction in 2007 for unlawful possession of a firearm. The probation officer reported that throughout the interview the appellant minimised his offending and cited his medical conditions as the reason. She assessed the risk of re-offending as moderate.
[7]        For many years the appellant has suffered severe ulceration of his legs which gives rise to constant pain. He also suffers from diabetes and an enlarged heart. A detailed document containing medical reports and photographs was before the sentencing Judge. We were informed from the bar by Mr Nee Harland that shortly after sentencing one of the appellant’s legs was amputated.
Sentencing in the High Court
[8]        With the consent of the appellant, a draft brief of evidence prepared by Detective…

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 Harris

Details

AGLC: R v Harris [2009] NZCA 471
Case: [2009] NZCA 471
Decision Date: 13 October 2009

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against sentence by Michael Douglas Harris, who had pleaded guilty to cultivating cannabis and permitting premises to be used for smoking cannabis. The Hastings District Court had declined jurisdiction and remitted the matter to the High Court for sentencing. The High Court sentenced Harris to two years and two months' imprisonment for cultivating cannabis, with a concurrent sentence of nine months for permitting premises to be used. Harris appealed against his sentence.

The central legal issue was whether the High Court's sentence for cultivating cannabis was manifestly excessive and disproportionately severe given Harris's health conditions. The Court of Appeal considered whether the starting point and uplift adopted by the High Court were appropriate, and whether Harris's health conditions warranted a greater discount under s 8(h) of the Sentencing Act 2002. The Court also considered whether an alternative sentence like home detention would be suitable.

The Court of Appeal held that while it was open to the High Court to find there was a commercial element to the offending, the starting point of three years was at the upper end of the available range. However, the Court concluded that the High Court had failed to adequately consider Harris's severe health conditions under s 8(h), which warranted a six month discount. Applying this discount, along with the discount for the guilty plea, the Court of Appeal reduced Harris's sentence to one year and ten months for cultivating cannabis. The concurrent sentence for permitting premises to be used remained unchanged. The appeal was allowed and the original sentence was quashed and replaced with the new sentence.

Orders