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R v Latham

R v Latham

Case [2007] NZCA 552 3 December 2007

Sentencing

Appeal

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA467/07
[2007] NZCA 552
THE QUEEN
v
PAUL JOHN LATHAM
Hearing:20 November 2007

Court:O'Regan, Williams and MacKenzie JJ
Counsel:P V Paino for Appellant

N P Chisnall for Crown

Judgment:3 December 2007 at 11 am

JUDGMENT OF THE COURT

AThe appeals against sentence are allowed and sentences of one year and four months’ and ten months’ imprisonment substituted for the sentences imposed in the District Court on the charges of cultivating cannabis and theft of electricity respectively. The reparation order imposed in the District Court is unchanged.

B Leave is granted to the appellant to apply for home detention.
REASONS OF THE COURT
(Given by Williams J)
Table of Contents
Para No

Issue   [1]
Facts   [4]
Sentencing   [6]
Submissions  [11]
Discussion  [20]
Result  [28]
Postscript  [31]
Issue
[1]       On 10 July 2007 the appellant, Mr Latham, pleaded guilty in the Wellington District Court to cultivating cannabis between February 2005 – February 2006 and stealing electricity between April 2004 and February 2006. The pleas were entered about a week before trial
[2]       On 13 August 2007 Mr Latham was sentenced to two years and two months’ imprisonment on the cultivation charge and 14 months’ concurrent imprisonment on the theft charge, together with reparation of $2,200 for the stolen electricity.
[3]       He appeals to this Court on the basis the sentences imposed, particularly that on the cultivation charge, were manifestly excessive.
Facts
[4]       When Police executed a search warrant on the appellant’s address on 21 February 2006 they found the following:
(a)Eight cannabis plants of varying heights growing outside in containers at the rear of the property.

(b) In the roof cavity accessed through a man-hole
i)Three cannabis plants about 1 m high growing in buckets.
ii)40 cannabis cuttings about 10 cm in height in two plastic trays.
iii)94 cannabis plants about 20 – 30 cm in height in other containers.
iv)117 cannabis plants in ten storage containers. Though only 20 – 30cm in height, these plants were mature in that they had formed “head”.
v)Heat lamps hung over the cannabis containers with a fan for circulation and an operative timing unit. The roof space also included measuring containers, plant food, potting mix and similar growing aids.
(c)Four cannabis “buds” weighing 0.25 g in the kitchen, together with two spotting knives, hand-held scales, tin-foil and snaplock bags.

(d)In the master bedroom a pipe for smoking cannabis, and a canister containing 0.2 g of dried cannabis.

[5] Electricity had been diverted before the meter to supply power to the attic. Analysis showed significantly reduced electricity usage for the 22 month period from 24 April 2004 to 21 February 2006. Differences between the previous average usage and that metered during that period gave rise to the reparation claim.
Sentencing
[6] The summary of facts was not agreed at the time pleas were entered. In any event, whilst it included commonplace comment about cannabis cultivation and yields, it included nothing concerning possible yields or…

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 Latham

Details

AGLC: R v Latham [2007] NZCA 552
Case: [2007] NZCA 552
Decision Date: 3 December 2007

CaseChat Overview and Summary

The case of R v Latham was heard in the Court of Appeal of New Zealand. The appellant, Mr. Paul John Latham, was convicted of cultivating cannabis and stealing electricity. He appealed against his sentences, arguing that they were manifestly excessive. The Court of Appeal allowed the appeals against sentence and substituted sentences of one year and four months' imprisonment for cultivating cannabis and ten months' imprisonment for theft of electricity. The reparation order remained unchanged, and leave was granted for the appellant to apply for home detention.

The legal issue before the Court was whether the District Court Judge was correct in placing Mr. Latham's offending within Category 2 of Terewi, which involves small-scale cultivation of cannabis plants for a commercial purpose. The Court concluded that although the number of plants and other indicia of cultivation were reasonably significant, the likely yield was modest, and the evidence of supply, rather than sale, to others was minimal. The Court took the view that Mr. Latham's offending was on the borderline of Categories 1 and 2 of Terewi and that the appropriate starting point, even taking into account the aggravating factors identified by the Judge and the duration of the theft of electricity, was imprisonment in the region of two years or a little more.

The Court of Appeal found that the District Court Judge's sentencing approach was incorrect. The Judge had largely repeated the Police summary of facts in her sentencing notes but omitted the reference to the 117 plants as "mature" and thus incapable of further growth or greater yield than they bore at the date of execution of the search warrant. The Court also noted the Judge's acceptance of there being no commercial aspect to the appellant's offending. Having taken all those matters into account, the Court was unable to conclude, as the Judge did on the basis of the more limited factual material before her, that Mr. Latham's offending fell within Category 2 of Terewi. Instead, the Court concluded that the appellant's offending was on the borderline of Categories 1 and 2 of Terewi and that the appropriate starting point was imprisonment in the region of two years or a little more. The Court then substituted sentences of one year and four months' imprisonment for cultivating cannabis and ten months' imprisonment for theft of electricity.

Orders