Savage v Police - [2014] NZHC 590

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-000013 [2014] NZHC 590

BETWEEN JAMES ROBERT SAVAGE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 27 March 2014

Appearances: A S Burns for Appellant
A Hill for Respondent

Judgment: 27 March 2014

ORAL JUDGMENT OF VENNING J

Solicitors: Crown Solicitor, Rotorua
Families Matter Law Practice, Rotorua

SAVAGE v NZ POLICE [2014] NZHC 590 [27 March 2014]

Introduction

[1] On 14 March 2014 in the District Court at Rotorua James Savage was sentenced by Judge Weir to imprisonment for two years, three months on the charge of cultivation of cannabis and to a concurrent term of imprisonment of three months on a charge of possession of cannabis.1 Mr Savage appeals against the sentence.

Background

[2] The summary of facts discloses that on the execution of a search warrant at Mr Savage’s home address the police located a reasonably substantial indoor cannabis cultivation operation within the basement of the home. Mr Savage had modified a portion of the basement to create two rooms that were set up for the purpose of growing cannabis. Along with a number of cannabis plants there was an extensive amount of cultivation paraphernalia, fertilizers, clonex, ph test kits, grow lamp bulbs, seed trays and buckets throughout the basement area and the detached double garage at the rear of the property.

[3] In the first and smaller of the two growing rooms there were two makeshift tables with a grow lamp connected to a timber device. There was an electric fan and water supply was plumbed in via a hose coming through the ceiling. There were 109 cannabis seedlings located on the first table growing in five trays. A further 130 seedlings were located on the second table growing in small planter bags contained within a shower tray. Through a small opening at the rear of the first room there was a larger more sophisticated room, which had five high pressure sodium grow lamps with shades suspended from the ceiling. A water supply was also plumbed into this room which fed an irrigation system supplying each plant. There were four electric fans on the floor and a ventilation fan had been fitted to the wall to bring fresh air into the room. There was a large ducted extraction fan with a carbon filter. There were 24 cannabis plants growing in this room planted in individual pots. They were approximately one metre tall midway through their growing cycle. The plants were healthy and starting to produce good quality head. Mr Savage had incorporated plastic meshing at the base of the plants to encourage them to hedge as they grew.

[4] On searching the kitchen a Freedom bag containing approximately 454 grams or a pound of cannabis leaf material was located in the pantry. A further two plastic shopping bags containing 224 grams of cannabis leaf was also located there.

[5] In a drawer in the basement plastic snap lock bags were found. The two bags each contained 25 grams, just under…

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 Savage v Police

Details

AGLC: Savage v Police [2014] NZHC 590
Case: [2014] NZHC 590
Decision Date: 27 March 2014

CaseChat Overview and Summary

The appellant, James Robert Savage, appealed against his sentence in the Rotorua District Court for cultivation and possession of cannabis. The District Court imposed a two-year, three-month imprisonment term on the cultivation charge and a concurrent three-month term for possession. The primary basis for the appeal was that the District Court failed to consider certain factors under the Sentencing Act, particularly the need for the least restrictive outcome and the offender’s personal circumstances. The appellant’s lawyer argued that home detention would be a more appropriate sentence, considering the impact on the appellant’s family, including his partner and young daughter.

The High Court examined whether the District Court's sentence was manifestly excessive, inappropriate, involved an error of law, or incorrectly assessed relevant facts. The Court noted that while home detention might seem less restrictive, it was inappropriate given the sophisticated nature of the cannabis operation and the concealment from the appellant’s partner. The Court also found that the starting point of two years and six months was appropriate, though the six-month uplift for unrelated offending was excessive. The Court concluded that a reduction of two to three months for the prior cannabis conviction was sufficient. Mitigating factors included the appellant's abstinence from cannabis post-apprehension, supporting a one to two-month reduction. Ultimately, the Court determined that the District Court’s sentence of two years and three months was not manifestly excessive or inappropriate.

The Court dismissed the appeal, affirming the District Court's sentence. The Court found that the District Court's approach was legally sound, and the sentence was proportionate to the seriousness of the offences. The Court emphasized that the appellant must take responsibility for the impact of his offending on his family.

Orders