R v Middleton - [2012] NZHC 2869

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-079-381 [2012] NZHC 2869

THE QUEEN

v

WAYNE CARL MIDDLETON

Hearing: 1 November 2012

Counsel: S Christensen for Crown
C Horsley for Offender

Judgment: 1 November 2012

SENTENCING NOTES OF TOOGOOD J

Solicitors:
S Christensen, Ronayne Hollister-Jones Lellman, Tauranga: s.christensen@rhjl.co.nz
C Horsley, Adams & Horsley, Tauranga: admin1adamshorsley.co.nz

R V MIDDLETON HC ROT CRI-2012-079-381 [1 November 2012]

[1] Wayne Carl Middleton, you appear for sentence having pleaded guilty to one charge of cultivation of cannabis for which you are liable to two years’ imprisonment; one charge of theft of electricity carrying a maximum penalty of seven years’ imprisonment; one charge of possession of cannabis for sale, which makes you liable to eight years’ imprisonment; and one charge of possession of a stun-gun, a restricted weapon, for which you are liable to four years’ imprisonment.

[2] Your offending was detected when the Police searched your address on

18 June 2012 and found 47 cannabis seedlings in small pots under a heat lamp;

47 cannabis plants in buckets in a bedroom which was set up with heat lamps, fans, and a dehumidifier and lined with silver paper; six cannabis plants; and over a kilogram of cannabis head material stored in a freezer in your kitchen. Police also found a stun-gun in working condition in a jacket hanging on a door. An inspection of the power meter at your address showed that the place had been illegally wired and that you had been stealing electricity from Genesis Power.

[3] It is alleged by the Police that your offending began in November 2010, but you dispute that and say that a probation officer who visited you in November 2011 did not detect any cannabis on the premises. I am prepared to accept for sentencing purposes that the growing period was something under a year.

[4] In sentencing you for this offending, I am obliged first to establish a starting point which reflects the nature of your offending itself, looking at guidelines established by the Court of Appeal and the features of your offending, both aggravating and mitigating (if any), in comparison with the sentences imposed in other broadly similar cases.[1]

[1] R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [60].

[5] I then take into account aggravating or mitigating factors which relate to you personally, including your previous history of offending. Finally, I need to recognise your guilty pleas by giving you a discount on the sentence which would otherwise be
appropriate.[2]

[2] Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607.

[6] Because you are to be sentenced on four separate charges, I am required to ensure that the overall effective end sentence imposed is an adequate reflection of the totality of your offending,[3] bearing in mind the purposes and principles of sentencing which include holding you accountable for your actions, denouncing your conduct, deterring you and others from similar offending in the future, and protecting the…

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 Middleton

Details

AGLC: R v Middleton [2012] NZHC 2869
Case: [2012] NZHC 2869
Decision Date: 1 November 2012

CaseChat Overview and Summary

Wayne Carl Middleton was sentenced in the High Court of New Zealand for cultivating cannabis, stealing electricity, possessing cannabis for sale, and possessing a restricted weapon. The court found that Middleton was cultivating a significant amount of cannabis and had been stealing electricity to support his operation. Additionally, he possessed a stun gun, which is a restricted weapon. The court was required to determine an appropriate sentence that reflected the nature and severity of the offenses while also considering the principles of sentencing, including accountability, deterrence, and community protection. The court also had to consider a Crown application for forfeiture of Middleton's home.

The court decided not to order the forfeiture of Middleton's home, as it found that the primary use of the property was as a dwelling, and the offending was incidental. The court considered Middleton's personal circumstances, including his age, unemployment, and health issues, and determined that forfeiting his home would impose undue hardship. The court established a starting point for the sentence based on the nature of the offenses, considering the commercial aspect of the cannabis cultivation and the possession of the stun gun. The court then adjusted the sentence based on aggravating and mitigating factors, including Middleton's guilty plea, remorse, and efforts to address his drug addiction.

The court ultimately sentenced Middleton to 10 months of home detention to be served concurrently, which was considered an appropriate alternative to imprisonment in this case. The court also ordered Middleton to pay $3,000 in reparations to Genesis Power and to forfeit the stun gun and equipment used for cultivating and storing cannabis. The court emphasized the importance of holding Middleton accountable for his actions while also providing an opportunity for rehabilitation and reintegration into the community.

Orders