| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA859/2010 [2011] NZCA 109 |
| BETWEEN THE QUEEN |
| AND PATRICK ARTHUR KENNEDY |
| Hearing: 15 March 2011 |
| Court: Harrison, Courtney and Clifford JJ |
| Counsel: S Edwards for Applicant |
| Judgment: 28 March 2011 at 3 pm |
JUDGMENT OF THE COURT
The Solicitor-General’s application for leave to appeal against sentence is declined.
REASONS OF THE COURT
(Given by Harrison J)
Introduction
In sentencing the respondent, Patrick Kennedy, Judge Rea acknowledged the dilemma not infrequently posed by two conflicting sentencing purposes.[1] On the one hand was the need to punish serious drug offending. On the other hand was the need to recognise and promote Mr Kennedy’s positive steps towards rehabilitation. The latter factor prevailed, resulting in a non-custodial sentence and generating this application by the Solicitor-General for leave to appeal against what he says was a manifestly inadequate sentence or one which was wrong in principle.[2]
[1] R v Kennedy DC Napier CRI-2009-020-5725, 8 December 2010.
[2]Pursuant to the Crimes Act 1961, s 383(2).
Mr Kennedy pleaded guilty to two counts of cultivating cannabis prior to trial in the District Court at Napier. He pleaded guilty to possessing a sawn-off shotgun during the trial. He was found guilty by the jury on the remaining charge of possessing cannabis for the purpose of sale. Judge Rea treated the cultivation charges as the lead or index charges. He sentenced Mr Kennedy to 12 months home detention and 400 hours community work on each concurrently. A fine of $5,000 was imposed on the possession for sale charge.
Ms Edwards, counsel for the Solicitor-General, submits that the starting point of three years imprisonment adopted by the Judge was too low in terms of this Court’s guideline judgment in R v Terewi;[3] that the discount of one year allowed for personal mitigating features was excessive; and that a sentence of home detention did not adequately address relevant sentencing goals, specifically denunciation and deterrence.
Circumstances
[3] R v Terewi [1999] 3 NZLR 62 (CA).
The relevant facts fall into a narrow spectrum. When executing a search warrant at Mr Kennedy’s home in late 2009, the police found over 10 kilograms of cannabis head in the house and 40 plants growing outside. There were 21 ounce bags containing cannabis, an accepted denomination in cannabis dealing, in a blue drum. There were three other blue drums containing 9.7 kilograms of good quality loose cannabis head material. Some lower quality cannabis and several thousand cannabis seeds were also found. Apart from the cannabis, there were two sets of digital scales; a number of resealable plastic bags; a single-barrelled 12 gauge shotgun with a laser sight; some other drug paraphernalia; and $8,860 in cash.
In the opinion of a drug expert called for the Crown, the cannabis if sold could have realised between $70,000 and $185,000, depending on when and in which denominations it was sold.
District Court
Starting point
Given the quantity of cannabis in his possession, Mr Kennedy…
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- R v Kennedy [2011] NZCA 109
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- [2011] NZCA 109
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