R v Miller - [2012] NZHC 2499

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-057-1106

CIV-2012-404-2677 [2012] NZHC 2499

THE QUEEN

v

JANIE PATRICIA MILLER

Hearing: 25 September 2012

Counsel: M R Harborow for Crown
P H H Tomlinson for Accused

Judgment: 25 September 2012

SENTENCING REMARKS OF LANG J

R V JANIE PATRICIA MILLER HC AK CRI-2012-057-1106 [25 September 2012]

[1] Ms Miller, you appear today for sentence having pleaded guilty in the District Court to charges of cultivating cannabis and being in unlawful possession of a firearm and ammunition. The maximum penalty on the charge of cultivating cannabis is seven years imprisonment. The maximum penalty on the remaining two charges is four years imprisonment.

[2] The District Court declined jurisdiction and committed you to this Court for sentence.

Background

[3] The charges against you arose out of a search that the police carried out of your property at Puni on 22 March 2012. The police executed a search warrant at your address, which was situated in a rural area. Your property comprised two acres of land. On the property was a dwelling, two outsheds and a large barn. At the time of the police search, you were living at the address with your partner.

[4] The police cut the padlock on the barn to gain entry. Once inside, they noticed a distinct smell of cannabis. They then searched the barn, and found an artificial grow room at the far end of the barn on the right hand side. The entrance to the grow room was barred by way of a padlock. The police cut the padlock and entered the room. They found that the grow room had been lined with aluminium foil, and was equipped with a variety of other items used in the cultivation of cannabis. These included high wattage bulbs, power boxes, thermometers, timers and fans.

[5] When the police entered the grow room, they found eight mature cannabis plants, all of which were about four feet in height and were housed in individual plastic pots. All eight plants were full of cannabis head material.

[6] The police then searched the rest of the property and observed a power lead running from the dwelling to another outshed. This, too, was sealed by a padlock.

When the police cut the padlock, they found a small power box and leads running from the power box through a plywood wall. When they moved a cabinet on wheels away from the side of the wall, they found that it concealed a hole in the wall. Behind the wall was another man-made artificial plywood cannabis growing room.

[7] In the second room, the police found seven mature cannabis plants standing at about two foot tall. These, too, were housed in individual pots. Also inside this room, the police found 16 cloned cannabis plants growing in an individual growing container.

[8] This grow room had also been kitted out with a variety of items used in the cultivation of cannabis. These included a high wattage bulb, power…

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 Miller

Details

AGLC: R v Miller [2012] NZHC 2499
Case: [2012] NZHC 2499
Decision Date: 25 September 2012

CaseChat Overview and Summary

The case of R v Miller involved the sentencing of Janie Patricia Miller, who had pleaded guilty to cultivating cannabis and being in unlawful possession of a firearm and ammunition. The District Court declined jurisdiction and referred the matter to the High Court for sentencing. The charges arose from a police search of Miller's property in Puni, where they discovered sophisticated cannabis cultivation setups and firearms. The Crown accepted that the cannabis cultivation was not commercial, which significantly impacted the sentencing considerations.

The legal issues the court needed to address included determining the appropriate starting point for the sentence based on the nature of the cannabis cultivation, considering the aggravating and mitigating factors, and deciding on the forfeiture of the proceeds from the sale of the property under the Criminal Proceeds (Recovery) Act 2009. The court had to balance the principles of deterrence and denunciation against the personal circumstances and mitigating factors presented by the defendant.

The court concluded that Miller's cannabis cultivation, while sophisticated, was for personal use and not commercial. It set a starting point of 16 months imprisonment, adding two months for the unlawful possession of firearms. After considering mitigating factors such as Miller's clean record, her health issues, and her guilty plea, the court reduced the sentence by eight months, resulting in a sentence of ten months imprisonment. However, the court decided that a sentence of supervision for nine months would be more appropriate to ensure Miller's involvement with cannabis ceased. Regarding the forfeiture of the property proceeds, the court ordered that 15% of the proceeds, approximately $75,000, be forfeited to the Crown, considering the non-commercial nature of the offending and the potential hardship to Miller.

Orders