R v Wolland - [2012] NZHC 442

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-092-13222 [2012] NZHC 442

THE QUEEN

v

RICHARD WOLLAND

Hearing: 16 March 2012

Appearances: I Brookie for Crown
M Sweetman for Wolland

Judgment: 16 March 2012

SENTENCING REMARKS OF ALLAN J

Solicitors:
Crown Solicitor Auckland ian.brookie@meredithconnell.co.nz
Manukau Public Defence Service Manukau mark.sweetman@justice.govt.nz

R V WOLLAND HC AK CRI 2011-092-13222 [16 March 2012]

[1] Mr Wolland, you appear for sentence this morning on one charge of possession of cannabis for supply. There is an unfortunate procedural background to this case. Following an early guilty plea you were sentenced in the Manukau District Court by Judge Moses on 29 November 2011, to 18 months imprisonment. It was subsequently realised that the sentence exceeded the Judge’s sentencing jurisdiction under the Misuse of Drugs Act 1975. The Judge recalled his sentence and, having declined jurisdiction, directed that you be sentenced in this Court, where the maximum available penalty is eight years imprisonment.

Factual background

[2] On 18 August 2011, the police conducted a search of your residence at Mangere. There, they located 14 individual ounce bags containing about 370 grams of cannabis with a street value in excess of $5,600, 23 tinnies, and $4,800 in cash. You readily accepted that the cannabis and the cash were yours, that you had been selling one ounce bags of cannabis to family and friends, and the tinnies were for your own use. You said you had incurred a substantial debt, which you are unable to repay without earning significant sums from cannabis dealing.

[3] Remarkably, at that time you were serving a sentence of home detention, imposed upon you for identical offending by Lang J in this Court on 18 February
2011.

Personal circumstances

[4] You are 35 years old and of Tongan/European decent. You were born and raised in Tonga by your grandparents and came to New Zealand aged 14 years. The offending occurred in your mother’s house where you live with your partner and your two young children. It seems that you have had some difficulty in obtaining employment, and that financial pressures were at least partially responsible for your offending yet again. The pre-sentence report discloses however that you have been a long time user of cannabis. To your credit, you now say that you would appreciate

help in beating the habit and breaking free of a drug-related lifestyle. But it is a logical assumption that you chose to help yourself financially by dealing in cannabis, partly by reason of the fact that you are yourself a consumer of it, and are comfortable with a lifestyle in which cannabis plays a major role.

[5] Since you have been in custody your father passed away. As one can understand that has had a significant effect on you.

[6] The probation officer is impressed by the extent to which you have expressed your remorse and regret for this offending, noting that it arose because you could not find work and needed money to support your family.…

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 Wolland

Details

AGLC: R v Wolland [2012] NZHC 442
Case: [2012] NZHC 442
Decision Date: 16 March 2012

CaseChat Overview and Summary

The case before the court involved Richard Wolland, who was charged with possession of cannabis for supply. The case had a complicated procedural history, including a previous guilty plea and a sentence imposed by the Manukau District Court that exceeded the judge’s jurisdiction. Consequently, the case was transferred to the High Court for sentencing. The court heard submissions from both the Crown and Wolland’s counsel, who suggested different starting points for the sentence. The primary legal issue was determining an appropriate starting point and considering various aggravating and mitigating factors to arrive at a just sentence.

The court considered the gravity of the offence, the defendant’s criminal history, and the presence of aggravating and mitigating factors. The court determined a starting point of two years nine months imprisonment, taking into account the defendant’s previous cannabis-related offences and the seriousness of the current offence. The court imposed a nine-month uplift for aggravating factors, including the defendant’s breach of home detention and the pattern of recent cannabis-related offending. The court allowed a 25% discount for the defendant’s early guilty plea but did not provide additional discount for remorse, as it found the discount for the guilty plea to be generous. The court arrived at a final sentence of two years six months imprisonment, which was higher than the previous sentence imposed by the Manukau District Court.

The court ordered that Richard Wolland be imprisoned for two years six months on the charge of possession of cannabis for supply. The court highlighted the defendant’s desire to break free from his pattern of cannabis-related offending and requested that the prison authorities consider offering him appropriate counselling and educational programs during and after his sentence.

Orders