R v Morrell - [2013] NZHC 2801

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2013-020-1466 [2013] NZHC 2801

THE QUEEN

v

JOSEPH JOHN MORRELL

Hearing: 24 October 2013

Counsel: J D Lucas for Crown
M Phelps for Defendant

Judgment: 24 October 2013

SENTENCING NOTES OF HEATH J

Solicitors:
Crown Solicitor, Napier
Counsel:
A J S Snell, Hastings

R v MORRELL [2013] NZHC 2801 [24 October 2013]

Introduction

[1] Joseph John Morrell, you appear for sentence today on one charge of possessing the Class C controlled drug cannabis, for supply. A plea of guilty was entered on 6 August 2013. Subsequently, Judge Down, in the District Court, declined jurisdiction to sentence and committed you to this Court for that purpose. The offence to which you have pleaded guilty carries a maximum penalty of eight years imprisonment.

Facts

[2] As a result of information received, police officers executed a search warrant at an address in Flaxmere and a storage shed at Twyford. The former is a residential property rented by your wife, and also used by you. The storage shed was rented by you, and is secure in nature.

[3] At the time of the search, Police had in their possession text data indicating that you had purchased 2.27 kilograms (about 5 pounds) of cannabis head on 20
April 2013, for $20,000.

[4] In searching the storage shed, police officers located a vehicle which was registered in your wife’s name. A large plastic bin was found in the boot of the vehicle, inside which police officers located 48 bags of cannabis head, each containing 32 grams. That is slightly in excess of one ounce, a quantity in which cannabis is frequently sold at street level.

[5] The total weight of the cannabis head was 1.5 kilograms. Based on the average street value of an ounce of good quality cannabis, $350 per ounce, the cannabis in your possession had the potential to realise a market value of about
$19,000.

Personal history

[6] Mr Morrell, you are presently aged 26 years. The probation officer responsible for preparing the pre-sentence report identifies your associates and drug

use as factors contributing to your offending. You told the probation officer that you

thought you could make a “quick buck” from selling the cannabis.

[7] The pre-sentence report writer recommends a community-based sentence, a mix of supervision and community detention. That, I will say immediately, is an unrealistic recommendation. Attention has been drawn to past breaches of community-based sentences, between 2008 and 2009.

[8] Your wife has told the pre-sentence report writer that you were a “hard working person who now realises the impact” of your convictions on your family and employment. I am told that if a community-based sentence were imposed, there is a reasonable possibility of re-employment.

[9] You have expressed remorse for your offending. There is nothing in the material I have read to cast doubt on the genuineness of that. I am impressed that you have made genuine attempts to obtain assistance to rid yourself of…

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 Morrell

Details

AGLC: R v Morrell [2013] NZHC 2801
Case: [2013] NZHC 2801
Decision Date: 24 October 2013

CaseChat Overview and Summary

The case of R v Morrell involves Joseph John Morrell who was sentenced for possessing a Class C controlled drug, cannabis, for supply. Morrell's plea of guilty was entered on 6 August 2013, following which the District Court declined jurisdiction and referred the case to the High Court of New Zealand for sentencing. The maximum penalty for this offence is eight years imprisonment. The court had to determine the appropriate sentence for Morrell, considering factors such as the quantity of drugs, potential profit, and the offender's background and efforts towards rehabilitation.

The legal issues primarily revolved around the seriousness of the offence, the need for deterrence, and the possibility of rehabilitation. The court considered the amount of cannabis, the potential market value, and the commercial nature of the offence, with gang undertones. Aggravating factors included Morrell's previous convictions, while mitigating factors involved his expressed remorse, efforts at rehabilitation, and the support from his wife. The court balanced these factors to determine the appropriate sentence that would serve the purposes of punishment, deterrence, and rehabilitation.

The court applied the sentencing tariffs provided by the Court of Appeal and considered the offence to fall within category 2, relating to small to medium-sized enterprises. The starting point for sentence was set at two to four years imprisonment. Given the quantity of cannabis and the clear inference of intended sales, the court opted for a starting point of two years and nine months. A modest uplift of two months was added for the previous convictions, leading to a revised starting point of two years and eleven months imprisonment. Various mitigating factors, such as the early guilty plea, remorse, and efforts at rehabilitation, reduced the sentence to two years and five months. Given that the final sentence was less than two years, the court decided on a sentence of home detention coupled with community work, recognizing this as likely Morrell's last chance to avoid imprisonment.

The final orders included a sentence of 10 months home detention and 150 hours of community work. The home detention was granted with specific conditions, including the requirement to participate in alcohol and drug rehabilitation programs. Additionally, the court ordered the destruction of the cannabis. Morrell was instructed to commence home detention immediately upon release, with arrangements for electronic monitoring.

Orders