R v Walpole - [2007] NZCA 89

IN THE COURT OF APPEAL OF NEW ZEALAND
CA26/07
[2007] NZCA 89
THE QUEEN
v
CYRUS CHARLES WALPOLE
Hearing:15 March 2007

Court:Robertson, Baragwanath and Venning JJ
Counsel:M J Knowles for Appellant

E M Thomas for Crown

Judgment:21 March 2007 at 3 pm

JUDGMENT OF THE COURT

APPEAL ALLOWED TO THE EXTENT THAT LEAVE TO APPLY FOR HOME DETENTION IS GRANTED, BUT IN ALL OTHER RESPECTS THE SENTENCE IS CONFIRMED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Introduction
[1]       This is an appeal against a sentence of 18 months’ imprisonment on one charge of cultivation of cannabis and one charge of unlawful possession of a firearm. Leave to apply for home detention was declined. The sentence followed a defended fact hearing in the District Court at Christchurch.
Background
[2]       On 2 February 2006 the police executed a search warrant at the home of the appellant, his de facto partner and two children. The police located 25 cannabis plants in a vegetable garden at the rear of the property. The police also found a plastic shopping bag containing approximately 28 ounces of cannabis leaf (cabbage) and a snaplock plastic bag containing another four and a half grams of cannabis leaf in a locked shed. A .303 rifle was also in the shed.
[3]       When spoken to by the police the appellant admitted he smoked cannabis but said he did so: “once a week, just a joint”. He denied that he had ever sold cannabis but said he had given it away to friends. The appellant admitted the rifle was his but he said that his firearms licence had lapsed about a year before and he had not got around to renewing it because of the cost.
[4]       The appellant pleaded guilty but did not accept the statement in the summary of facts that the cannabis found at his property was a commercial cultivation. The matter went to a disputed facts hearing before Judge Crosbie on 11 December 2006. The evidence of Detective Constable Pritchard and Detective Sergeant McGowan was received by consent. Detective Constable Pritchard gave evidence of the photographs of the cannabis found at the property. Detective Sergeant McGowan had spoken to the appellant when the warrant was executed. In addition, Detective Sergeant Archer, a supervisor in the drugs squad, gave expert evidence about tetrahydrocannabinol (THC), flowering heads and the value of cannabis. He also gave evidence as to the amount of cannabis required to feed a moderate habit of smoking two to three cigarettes a day. In his opinion the plants found had been planted at staggered times and were at three separate stages of their growing cycle. The appellant also gave evidence. He accepted that he had planted the cannabis but said it was for his own use and that he had just not had enough time to get rid of the plants he did not need.
[5]       Judge Crosbie did not accept the evidence of the appellant that the cannabis was for his own use. The…

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 Walpole

Details

AGLC: R v Walpole [2007] NZCA 89
Case: [2007] NZCA 89
Decision Date: 21 March 2007

CaseChat Overview and Summary

In this case, Cyrus Charles Walpole appealed against a sentence of 18 months' imprisonment on charges of cultivating cannabis and unlawful possession of a firearm. The appeal centred on the denial of leave to apply for home detention instead of imprisonment. The case was heard in the Court of Appeal of New Zealand, with Robertson, Baragwanath, and Venning JJ presiding.

The legal issues before the court were whether the sentence was manifestly excessive, whether the trial judge's conclusion that the cannabis operation was a commercial cultivation was correct, and whether the judge had erred in declining leave to apply for home detention. The appellant's counsel argued that the trial judge's findings were unsafe and that the case should have been classified as category 1 rather than category 2 of R v Terewi. Furthermore, it was submitted that the judge had wrongly excluded the consideration of home detention due to the nature of the cannabis cultivation.

The court found that the evidence was sufficient for the trial judge to conclude that the cannabis cultivation was commercial, even though it was at the lower end of category 2. The court rejected the argument that the case should be classified as category 1. The court also noted that the trial judge's discretion in granting leave to apply for home detention had been fettered. Considering the factors in this case, including the lower end of commercial cultivation, the appellant's remorse, and the support from his mother, the Court of Appeal granted leave to apply for home detention.

In conclusion, the appeal was allowed to the extent that leave to apply for home detention was granted. In all other respects, the sentence was confirmed.

Orders