R v Nuttall - [2013] NZHC 544

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-10651 [2013] NZHC 544

THE QUEEN

v

DAVID ROBERT ANTHONY NUTTALL

Hearing: 19 March 2013

Counsel: M R Galler for Crown
M A Edgar for Prisoner

Judgment: 19 March 2013

SENTENCING REMARKS OF LANG J

R V DAVID ROBERT ANTHONY NUTTALL HC AK CRI-2012-092-10651 [19 March 2013]

[1] Mr Nuttall, you appear for sentence today having pleaded guilty in the District Court to a charge of cultivating cannabis. The maximum penalty for that offence is seven years imprisonment. The District Court declined jurisdiction and committed you to this Court for sentence because its jurisdiction was limited in terms of the sentence that it could impose on you given that you pleaded guilty at an early stage.

The facts

[2] The facts of your offending are to be taken from an agreed summary of facts, supplemented by a statement from a police officer who has updated the summary. This records that you had leased a warehouse unit in an industrial area in East Tamaki in or about August 2010. Over the next two years you set about converting that property into a purpose-built cannabis growing operation.

[3] I am told that your landlord became suspicious in August 2012 when he went to the property and saw a ventilation unit that he obviously did not recognise. He then alerted the police, and they obtained a search warrant in respect of the property. They then waited outside the property until you arrived. That occurred on 10 August
2012.

[4] The police then searched the premises and found a very large scale cannabis- growing operation inside. They found that internal rooms had been constructed within the warehouse using gibralter board. In total, there were six rooms, all of which had different purposes. There were two large growing rooms with three distinct growing areas. There were also rooms that the police described as a “mother room”, a “mother strain room”, a drying room and an upstairs room. The unit also had a garage attached to it.

[5] In the first growing room the police found a total of 435 cannabis plants. These varied in height between 18 and 91 centimetres. The room also contained a considerable amount of equipment designed to ensure that growing conditions were as close to optimum as possible. These included dehumidifiers, fans, a carbon dioxide extractor, carbon extractor fans, lighting lamps, air conditioning units, a

thermostat, thermal thermometers, digital timers, air pumps, trays, power heads and multi plugs.

[6] The second growing room contained a total of 188 plants, ranging in height from 75 to 100 centimetres. It also contained 61 seedlings ranging in height between
40 and 70 centimetres. This room also contained a considerable amount of purpose- built equipment designed to ensure that the plants grew in an ideal environment.

[7] In the drying room the police found 110 plants that had been harvested. They also found drying trays containing cannabis buds. This room, too, had equipment including a carbon…

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 Nuttall

Details

AGLC: R v Nuttall [2013] NZHC 544
Case: [2013] NZHC 544
Decision Date: 19 March 2013

CaseChat Overview and Summary

David Robert Anthony Nuttall was sentenced by the High Court of New Zealand in Auckland after pleading guilty to cultivating cannabis. The maximum penalty for this offence is seven years imprisonment. The District Court had declined jurisdiction and referred the matter to the High Court for sentencing due to its limited jurisdiction in terms of the sentence it could impose.

The primary legal issues before the court were determining the appropriate starting point for sentencing, considering aggravating factors such as previous convictions, and taking into account mitigating factors such as the defendant's guilty plea and steps towards rehabilitation. The court also needed to ensure that the sentence imposed was consistent with sentences imposed in similar cases and recognised the need for deterrence and denunciation.

The court determined that the starting point for sentencing should be five years imprisonment, based on the size and sophistication of the cannabis cultivation operation. The court did not increase the starting point based on the defendant's previous convictions as they were not considered significant. However, the court reduced the starting point by eight months to reflect the defendant's genuine and serious steps towards rehabilitation, including completing a drug rehabilitation programme and attending a post-graduation programme. The court further reduced the sentence by 25% due to the defendant's early guilty plea, resulting in a final sentence of three years and three months imprisonment. The court also made an order for the destruction of all drug-related paraphernalia found in the defendant's possession.

Orders