R v Simeon - [2012] NZHC 1999

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2010-015-675 [2012] NZHC 1999

QUEEN

v

JOSEPH PATRICK SIMEON

Hearing: 9 August 2012

Counsel: M G Sinclair for Crown
P S Coles for Prisoner

Sentencing: 9 August 2012

SENTENCING NOTES OF MILLER J

[1] Mr Simeon, you appear for sentence on one charge of cultivating cannabis and another of possessing precursor equipment, isopropyl alcohol, which can be used to produce a Class B drug, cannabis oil.

[2] The matter has a tortuous history which I need not outline here. You were arrested as long ago as November 2010 and it is now common ground that you pleaded guilty early enough to earn the full 25 per cent discount. A disputed facts hearing was then held to establish the degree of commerciality in your operation. The narrative which follows reflects the findings made by Judge Atkins at that hearing, before he declined sentencing jurisdiction and referred you to this Court for
sentence.

R V SIMEON HC PMN CRI-2010-015-675 [9 August 2012]

[3] The cannabis was found at a Feilding home occupied by your ex-partner. Forty-nine growing plants were found in a grow room in the garage. It was a moderately sophisticated setup, involving a fan, grow lights, transformers, ducting and fertiliser. The power had been re-routed to bypass the meter. Also present were
203 cuttings. The Judge was satisfied that there was a commercial element to your activity. I agree, and I add that the durable nature of this setup is arguably more cogent evidence of commerciality than the yield from the growing plants. I am not prepared to accept Mr Coles’ submission that as you were no longer living at the address you had no security of tenure, to use his term, in the setup. I do accept, however, that you consumed some of the cannabis yourself.

[4] The Judge found that all of this put you into Category 2 of Terewi. I agree. In my opinion it invites a starting point of two years and eight months imprisonment, taking into account the second charge.

[5] The presentence report describes you as a 32 year old, of Tainui descent. You have three children and although they do not live with you, you do see them every weekend. You are not presently in a relationship according to the report.

[6] You are employed as a shearer. Your employer says you are a reliable hard worker and he has put you in charge of a gang. He says he will keep a job open for you.

[7] You do have a harmful pattern of alcohol and drug abuse, and you have a number of convictions. Two involve cannabis, the last in 2006, and there are two for driving with excess alcohol. Perhaps more importantly for present purposes, you have a number of convictions for breaching court orders or sentence conditions: you have convictions for breaching periodic detention (3), breaching bail and driving while disqualified. However, most of those convictions are very…

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 Simeon

Details

AGLC: R v Simeon [2012] NZHC 1999
Case: [2012] NZHC 1999
Decision Date: 9 August 2012

CaseChat Overview and Summary

The High Court of New Zealand dealt with the case of R v Simeon, where the defendant, Joseph Patrick Simeon, faced charges of cultivating cannabis and possessing precursor equipment, specifically isopropyl alcohol, which can be used to produce a Class B drug, cannabis oil. The court was required to determine an appropriate sentence following Simeon's guilty plea, which entitled him to a 25% discount on the sentence. A previous hearing established a commercial element to Simeon's cannabis operation, leading to the court's decision on the appropriate category and starting point for the sentence.

The court considered several factors in reaching its decision, including the sophistication of the cannabis setup, Simeon's consumption of some of the cannabis, and his compliance with previous sentences. The court found Simeon to be in Category 2 of Terewi, which invited a starting point of two years and eight months imprisonment. Simeon's personal circumstances, including his employment, family responsibilities, and efforts towards rehabilitation through drug and alcohol counselling, were also taken into account. The court made an additional allowance of four months for these mitigating factors, leading to a final sentence of twenty months.

After weighing the objectives of deterrence and denunciation against the likelihood of Simeon's compliance with a community-based sentence, the court decided to impose home detention coupled with community work. The sentence comprised ten months of home detention and 300 hours of community work for the cannabis charge, and a concurrent six months of home detention for the possession of precursor equipment charge. Conditions for the sentence included residing at a specified address, abstaining from alcohol and non-prescription drugs, and attending any recommended assessments and treatments. The court also ordered the destruction of all cannabis-related items seized at the premises.

Orders