Sherwood v Police - [2017] NZHC 1024

IN THE HIGH COURT OF NEW ZEALAND

HAMILTON REGISTRY

CRI-2016-419-72

[2017] NZHC 1024

BETWEEN
KAREN ANNE SHERWOOD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 May 2017

Appearances:

S McKenna for the Appellant J E Tarrant for the Respondent

Judgment:

16 May 2017

Reasons:

18 May 2017

JUDGMENT OF GORDON J

SHERWOOD v POLICE [2017] NZHC 1024 [16 May 2017]

Solicitors: Crown Solicitor, Hamilton
Grantham Law, Hamilton

Introduction

[1] Ms Sherwood was convicted of one count of cultivating cannabis under s 9(1) of the Misuse of Drugs Act 1975 (the Act) by Judge N D Cocurullo on 21 November 2016 in the District Court at Te Kuiti.1

[2] She appeals her conviction on the ground that the evidence was insufficient to support a finding of guilt. At the end of the hearing on 16 May 2017, I gave a decision setting the conviction aside and substituting a charge under s 12 of the Misuse of Drugs Act 1975 for permitting premises to be used for the purposes of cultivation of cannabis. I then convicted and discharged Ms Sherwood. These are the reasons for my decision.

Background

[3] On 4 February 2016 the police conducted an aerial operation and observed cannabis on the property occupied by Mr Boles and Ms Sherwood. The police executed a search warrant on the property on the same day.

[4] They found nine cannabis plants growing close to the house, 221 cannabis plants in the garden area and 35 in the bottom of a terraced area in another part of the property. The plants were well cared for. The police also found 2.8 kilograms of cannabis plant material and 28 grams of cannabis seeds in the dwelling on the property.

[5] Neither Mr Boles nor Ms Sherwood gave evidence. However, Mr Boles had visited the police station to seek return of the plants and noted to one of the policeman that he was a “marijuana grower”.

District Court

[6] Judge Cocurullo found Ms Sherwood guilty of cultivation in relation to the nine cannabis plants growing close to the house. The Judge noted that Ms Sherwood had occupied the property for a significant period of time and that the plants were in

1 New Zealand Police v Boles [2016] NZDC 23587.

sight of and close to one of the doors. The Judge was satisfied that Ms Sherwood had knowledge of the nine plants.

[7] Judge Cocurullo then inferred from these facts that Ms Sherwood participated in the cultivation of at least the nine plants growing close to the house.2 Ms Sherwood was sentenced to 40 hours’ community work.

[8] The Judge also found Mr Boles guilty of cultivation in relation to all 265 cannabis plants, possession of cannabis for the purposes of sale and/or supply, and possession of cannabis seeds for the purposes of sale and/or supply.

Substitution of charge

[9] The Crown on appeal did not seek to uphold the District Court decision. Instead, the Crown submitted that the Court should exercise its power under s…

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.

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Details

Case: [2017] NZHC 1024
Decision Date: 16 May 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Karen Anne Sherwood, the appellant, appealed her conviction under s 9(1) of the Misuse of Drugs Act 1975 for cultivating cannabis, which was determined by Judge N D Cocurullo in the District Court at Te Kuiti on 21 November 2016. The primary legal issue the court had to address was whether the evidence was sufficient to support a finding of guilt. The appellant argued that there was insufficient evidence to convict her of cultivating cannabis, and the court substituted a charge under s 12 of the Misuse of Drugs Act 1975 for permitting premises to be used for the purposes of cultivating cannabis. The appeal was heard on 16 May 2017 and judgment was given on the same day, with reasons provided on 18 May 2017.

The court considered the evidence presented during the District Court trial, which included the discovery of numerous cannabis plants on the property occupied by the appellant and Mr Boles. The District Court found the appellant guilty of cultivating nine of the cannabis plants found close to the house. However, the High Court found that the evidence was insufficient to support a conviction of cultivating cannabis, resulting in a miscarriage of justice. Instead, the court substituted a conviction under s 12 of the Misuse of Drugs Act 1975 for permitting premises to be used for the purposes of cultivating cannabis. The Crown did not object to this substitution, and the appellant's lawyer agreed that it would be an appropriate course of action. The court also took into consideration the sentencing options available for the substituted charge and ultimately convicted and discharged the appellant.

The final orders of the court were to set aside the appellant's conviction and sentence under s 9(1) of the Misuse of Drugs Act 1975 for cultivating cannabis. A conviction under s 12 of the Misuse of Drugs Act 1975 for permitting premises to be used for the purposes of cultivating cannabis was substituted, and the appellant was convicted and discharged.

Orders