R v Hibbert - [2014] NZHC 47

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2012-016-000662 [2014] NZHC 47

THE QUEEN

v

LANCE HIBBERT

Charge:

Plea:

Cultivating cannabis

Guilty

Appearances: J Rielly for Crown
A W Clarke for Prisoner

Sentenced: 3 February 2014

SENTENCING NOTES OF VENNING J

Solicitors: Crown Solicitor, Napier
A W Clarke Legal, Gisborne

R v HIBBERT [2014] NZHC 47 [3 February 2014]

[1] Lance Hibbert you are for sentence on one charge of cultivating cannabis. You are for sentence in this Court because the District Court Judge declined jurisdiction. The maximum term of imprisonment for such offending is seven years’ imprisonment.

[2] At the time of your offending you and your father were living at a property in Ingram Road, Hexton, Gisborne. The property was an established avocado orchard owned by your father and your stepmother. Just after midday on 10 March 2012 the police executed a search warrant at that property. They found 14 cannabis plants growing in buckets behind a swimming pool area. The plants were approximately two metres tall. Inside an implement shed they discovered a specially built room, built of plywood, that was concealed behind a stack of hay bales. There were 60 cannabis plants being grown under artificial lighting in that room. Those plants were about a metre in height. There was also a large bucket containing four kilograms of freshly picked cannabis leaf. A search of the property revealed a large area where cannabis plants were being grown in small plots in and around the avocado trees in the orchard. There were a further 373 cannabis plants growing there in 55 different plots. They ranged from half a metre to two metres tall. It was also observed that there were gaps where it appeared the plants had been removed. All the plants on the property had been grown from cuttings.

[3] When you were spoken to you accepted responsibility for the cannabis found on the property. You said your intention was to harvest it, to sell it and raise the money required to help your father buy out your stepmother’s share in the property.

[4] You are now aged 30. I note the offending took place almost two years ago.

[5] The pre-sentence report discloses that you have been affected by grief, particularly following the death of your mother when you were about 16. At the time of your offending you were subject to financial and emotional stress, but also you engaged in drug abuse. That was considered to be a major contributing factor to the offending. You said that at the time you were not thinking clearly. You were making bad decisions. From the outset you have expressed remorse for your offending and the impact on your family and your father.

[6] The probation officer has assessed you as at a low risk of reoffending and a low risk of harm based on your limited previous criminal history. The probation officer recommends home detention and community work. I note that in the in-depth pre-sentence report…

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 Hibbert

Details

AGLC: R v Hibbert [2014] NZHC 47
Case: [2014] NZHC 47
Decision Date: 3 February 2014

CaseChat Overview and Summary

In the case of R v Hibbert, the defendant, Lance Hibbert, was sentenced for cultivating cannabis at a property in Hexton, Gisborne. The property was an avocado orchard owned by his father and stepmother. On 10 March 2012, police executed a search warrant at the property and discovered a significant cannabis operation, with a total of 447 cannabis plants found across the property, including 60 plants grown indoors under artificial lighting. Hibbert accepted responsibility for the operation and stated that his intention was to harvest and sell the cannabis to raise money to help his father buy out his stepmother’s share in the property. The case was heard in the High Court of New Zealand, Gisborne Registry, before Venning J.

The legal issues before the court were the appropriate starting point for sentencing and whether an alternative to imprisonment was suitable. The Crown argued for a starting point of five years’ imprisonment, citing the case of R v Terewi and the substantial number of plants and estimated value of the crop. Hibbert's counsel submitted that a starting point of three years and three months to three years and nine months was appropriate, given the circumstances and the defendant's cooperation and remorse. The court needed to consider these submissions, the mitigating factors, and the defendant's background to determine the appropriate sentence.

Venning J determined that the case fell into category 3 of R v Terewi, given the scale of the operation and the estimated value of the cannabis crop. The court accepted the Crown's submission and set a starting point of four years and two months' imprisonment. However, the court also considered mitigating factors such as Hibbert's remorse, cooperation with authorities, and guilty plea, which led to a reduction in the sentence. Ultimately, the court was satisfied that an alternative to imprisonment was appropriate, taking into account the defendant's background, support from the community, and his motivation to address his issues. Hibbert was sentenced to 12 months of home detention and 300 hours of community work.

In conclusion, the court recognised the seriousness of the offending but also the significant personal factors that led Hibbert to his current situation. The sentence aimed to address the impact on the community while providing Hibbert an opportunity to change his circumstances and avoid future reoffending.

Orders