Slape v The Queen - [2015] NZHC 2637

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2015-443-000040 [2015] NZHC 2637

BETWEEN
DAVID BRIAN SLAPE

Appellant

AND

THE QUEEN Respondent

Hearing: 20 October 2015

Counsel:

J M Woodcock for appellant
M L Wong for respondent

Judgment:

27 October 2015

RESERVED JUDGMENT OF DOBSON J

[1] The appellant (Mr Slape) entered guilty pleas to charges of cultivation of cannabis, possession of utensils, possession of methamphetamine, unlawful possession of firearms, pistols and ammunition. He was sentenced by Judge Roberts in the New Plymouth District Court on 24 July 2015 to two years and four months’
imprisonment.1

[2] Mr Slape has appealed, primarily on the grounds that the uplift for the firearms charges was excessive, and the discount for his unusual personal circumstances was inadequate.

The facts

[3] When Police executed a warrant at Mr Slape’s address in October 2013, they found a relatively substantial cannabis growing operation involving 41 individually potted cannabis plants in a garage, which was set up with lights, heat lamps, fans and
electrical systems, and protected by a sophisticated surveillance system. Police also

1 R v Slape [2015] NZDC 14088.

found three sets of electronic scales. The Police estimate of the scale suggested a crop of some 82 ounces, capable of being harvested three times per year with a value per crop of some $28,700. Cannabis seeds were also found and, in a large container, there were some 372 grams of cannabis head, some of which was packaged into ziplock bags. The estimated street value of the packaged cannabis was $4,550. Police also found 2,422 grams of lower value cannabis plant material and utensils for consuming cannabis.

[4] Police also found 0.1 gram of methamphetamine, together with glass pipes used for smoking methamphetamine and a number of empty point bags. Finally, the Police located, under the mattress on Mr Slape’s bed, two cut down single barrel shotguns, each loaded, and a cut down semi automatic .22 calibre rifle loaded with two live rounds. In another room a second .22 calibre rifle was located which was not loaded.

[5] The full extent of the charges took some time to resolve. Police accepted that Mr Slape was a heavy cannabis user, at least in part because he used it for relief of chronic pain for a recognised physical injury. Ultimately he did not face any charge of possession for supply, when the quantities involved would presumptively suggest that was appropriate, because of the acceptance of the extent of his own use.

The sentencing analysis

[6] Judge Roberts characterised the offending as a “low level cyclic yet commercial operation” falling within band two from R v Terewi.2 That band, which includes small-scale cultivation for a commercial purpose, triggers starting points between two and four years. In this case, the Judge adopted a starting point of two and a half years for the cannabis-related charges. The Judge treated that starting point as sufficient to reflect previous cannabis-related convictions that Mr Slape has, the most recent of which was…

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 Slape v The Queen

Details

AGLC: Slape v The Queen [2015] NZHC 2637
Case: [2015] NZHC 2637
Decision Date: 27 October 2015

CaseChat Overview and Summary

In the High Court of New Zealand, David Brian Slape appealed against his sentence imposed by the New Plymouth District Court. Mr Slape was found guilty of cultivating cannabis, possessing utensils, possessing methamphetamine, and unlawfully possessing firearms, pistols, and ammunition. The primary grounds of appeal were the excessive uplift for the firearms charges and the inadequate discount for his unusual personal circumstances. The court was required to decide whether the uplift for the firearms charges was excessive and if the discount for Mr Slape's personal circumstances was adequate. The court found that the uplift for the firearms offences was excessive and that a six-month uplift would have been adequate. The court was not persuaded that a discount of a little less than 10 per cent was demonstrably inadequate. The court found that the final sentence was manifestly excessive and allowed the appeal. The effective sentence of two years and four months was quashed and substituted with a sentence of two years and one month’s imprisonment. The concurrent sentences on the firearms convictions were adjusted to a commensurate extent.

Orders