R v Shand - [2013] NZHC 3024

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-024-994 [2013] NZHC 3024

THE QUEEN

v

JONATHAN GERALD SHAND

Hearing: 14 November 2013

Appearances: S Cameron for the Crown
G Walsh for the Prisoner

Sentence: 14 November 2013

SENTENCING NOTES OF BROWN J

Solicitors: Crown Solicitor, Hamilton
Counsel: G Walsh, Hamilton

R v SHAND [2013] NZHC 3024 [14 November 2013]

[1] Mr Shand you appear for sentence today on one charge of cultivating cannabis in contravention of s 9 of the Misuse of Drugs Act 1975 in respect of which the maximum penalty is seven years imprisonment. You are also for sentence on charges of driving while disqualified (third or subsequent) and careless driving causing injury. Those two matters were transferred to this Court pursuant to s 138 of the Criminal Procedure Act 2001 following the entry of guilty pleas by you in the District Court. Two other charges have been withdrawn.

The facts

[2] In relation to the cultivation charge on 2 November 2012 the police executed a search warrant at your residential address. Upon searching the premises they found that you had been cultivating cannabis at the address. Inside the spare bedroom was what is called a “grow room”. It was being used exclusively for growing cannabis plants. The cannabis plants inside the spare bedroom were in varying degrees of growth and you were running a cloning operation.

[3] You had 105 cannabis plants growing in four separate areas of the grow room as follows:

(a) You had a large “grow lush” tent housing 32 cannabis plants in individual planter bag.

(b)You had a large cannabis plant in a cupboard, known as the mother plant.

(c) Inside a wardrobe were 12 cannabis plants from 20-30 cm in height, lit by two heat lamps.

(d)Also inside the grow room were two polystyrene boxes which had fish tank lights on the top containing 41 seedlings in one box and 19 in the other.

(e) There were also four power boxes and a timer plug in the room.

[4] Police also located other items at your address, including multiple snaplock bags, cannabis seeds in the lounge, scales, plant fertiliser, growth chemicals, growing material, potting mix, a cannabis plant hung upside down and drying in the grow room, pruned cannabis leaf and stalk on a table in the grow room and stalks of previously harvested cannabis still rooted in buckets.

[5] You were present at the time of the execution of the warrant. You admitted growing cannabis but stated it was for your personal use, that you consumed one ounce of cannabis per week and you admitted having paid $3000 for the grow tent.

[6] Initially you disputed the commerciality of the operation and a disputed facts hearing was scheduled. In June this year you elected not to pursue the disputed facts hearing and while you maintain that you have a significant drug habit and use a significant amount as a result, you accept there has been at least some level 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 Shand

Details

AGLC: R v Shand [2013] NZHC 3024
Case: [2013] NZHC 3024
Decision Date: 14 November 2013

CaseChat Overview and Summary

In the case of R v Shand, the defendant, Jonathan Gerald Shand, appeared before the High Court of New Zealand, Hamilton Registry, for sentencing on charges related to cultivating cannabis, driving while disqualified, and careless driving causing injury. The primary issue before the court was determining the appropriate sentence for Mr. Shand, considering the nature and commercial scale of the cannabis cultivation, his previous criminal history, and his compliance with bail conditions. The court also had to consider the additional charges of driving while disqualified and careless driving causing injury, which were committed while Mr. Shand was on bail.

The court meticulously reviewed the facts of the case, noting that Mr. Shand was found to be cultivating a substantial number of cannabis plants, with an estimated commercial value exceeding $38,000. Despite Mr. Shand's admission that the operation was for personal use, the court accepted that there was at least some level of commerciality. The court also considered Mr. Shand's breach of bail conditions, which included driving while disqualified and possessing cannabis, leading to a collision that caused injury to another driver. The court weighed various sentencing purposes and principles, including deterrence, denunciation, and rehabilitation, and assessed Mr. Shand's risk of reoffending, particularly in light of his history of alcohol and drug dependency.

After considering the arguments from both the Crown and the defence, the court decided on a starting point of two years and six months for the cannabis cultivation charge. The court applied a six-month uplift for the totality of the offending, reduced the sentence by one month for Mr. Shand's expressions of remorse, and further reduced the sentence by 25% for his early guilty plea. Consequently, the court sentenced Mr. Shand to two years and two months imprisonment for the cannabis charge, three months imprisonment for careless driving causing injury, and six months imprisonment for driving while disqualified, all to be served concurrently. Additionally, Mr. Shand was disqualified from driving for one year and ordered to forfeit the cannabis plants and drug paraphernalia.

This comprehensive approach ensured that the sentence addressed the severity of the offending while also considering Mr. Shand's potential for rehabilitation and the need to protect the community.

Orders