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 in 2003.

[7]      The Judge treated the firearms offending as serious, given the unlawful possession of altered firearms, and the fact that three out of four of them were loaded

2      R v Terewi [1999] 3 NZLR 62 (CA).

and  were  within  close  proximity  to  the  cannabis.    The  Judge  acknowledged Mr Slape’s explanation which was that their possession was not directly related to guarding his cannabis, but rather because of specific threats that he had received from two, apparently notorious, Taranaki criminals.   They were named and must have been known to the Judge who acknowledged the reality of the threats:3

Both   of   course   are   given   to   stand   overs,   both   of   course   are methamphetamine  addicted  and  both  of  course  resort  and  work  with firearms.

[8]      The  Judge  increased  the  starting  point  by  12  months  for  the  firearms offences.  From the combined starting point of three years and six months, the Judge allowed a discount of four months to reflect the documented issues of pain suffered by Mr Slape and an allowance factored in to accommodate the extent to which cannabis was for personal use.  He then allowed a full 25 per cent discount for guilty pleas, which he rounded at 10 months.  The resulting sentence was two years and four months, which the Judge attributed to the lead conviction for cultivation of cannabis with concurrent sentences of 15 months’ imprisonment on the unlawful possession of a firearm, 18 months on the two charges of unlawful possession of pistols,  two  months’ imprisonment  for  possession  of  cannabis  and  two  months’ imprisonment for possession of methamphetamine.

Grounds of appeal

[9]      It  was  argued  for Mr Slape that  the uplift for the firearms  offences  was excessive and that instead a six month uplift would have been adequate.  In addition, the discount of four months for Mr Slape’s personal circumstances was criticised as inadequate, with instead a 15 per cent discount being suggested as warranted.   If both aspects of the challenges were accepted, it would reduce the sentence to less than two years, which would make home detention a possibility.

[10]     As  to  the  appropriate  uplift  for  the  firearms  offending,  any  connection between unlawful possession of firearms and cultivating, manufacturing or dealing in drugs has to be treated seriously.  Making appropriate allowance for Mr Slape’s

explanation  that  there  were  compelling  reasons  independently  of  his  cannabis

3      R v Slape, above n 1, at [28].

growing operation for being armed and ready to defend himself, the extent and location of his armoury still made this a serious and worrying aggravation of his drug offending.

[11]     In  a  preponderance  of  cases  that  are  comparable,  uplifts  of  between  six months and eight months’ imprisonment have been confirmed.4     The size of the arsenal, the presence of ammunition, and any additional connotations of availability for covert use reflected in the extent of adaptation may be relevant.

[12]     The cases cited for the Crown on the present appeal focused on appeals where the Court was considering stand alone sentences for unlawful possession of weapons.   Such cases suggested higher starting points, and it may be the Crown invited these analogies because the sentencing Judge had accepted that the firearms were possessed by Mr Slape independently of his cannabis activities.

[13]     I prefer to consider the appropriate uplift in the context of the lead offending, which means that eight months would be adequate.   This would give a combined starting point of three years and two months, and the next issue is whether that combined starting point is appropriate to reflect the totality of Mr Slape’s offending. I am satisfied that it is.  It is difficult to identify any particularly close comparisons, but  I  rank  the  totality  of  Mr Slape’s  offending  somewhat  more  seriously  than R v Moore, where the defendant pleaded guilty to charges of cultivating cannabis, possession of cannabis for sale, and unlawful possession of a pistol (a sawn-off

shotgun) and ammunition.5   The weapon was inoperable.  The starting point adopted

there  was  two  years  and  nine  months’ imprisonment.    I  have  also  considered R v Karipa where a somewhat smaller cannabis growing operation was involved, the defendant was unlawfully in possession of a restricted weapon, and was also convicted  of  theft  of  electricity.6      The  starting  point  there  was  two  years  and

10 months’ imprisonment.   Again, it is a somewhat less serious combination of

offending than that committed by Mr Slape.

4      Crutchley v R [2015] NZCA 473 at [20]; Hereaka v R [2011] NZCA 429.

5      R v Moore [2013] NZHC 1427.

6      R v Karipa [2013] NZHC 525.

[14]     The  second  ground  was  a  challenge  to  the  extent  of  discount  given  for Mr Slape’s personal mitigating circumstances.   It is accepted that he suffers from chronic  and  severe  pain,  he  had  complied  with  bail  conditions  for  a  period  of

20 months and had demonstrated a willingness to address his substance abuse issues. In addition, Mr Slape has co-operated with the Police in terms of identifying persons allegedly  involved  in  methamphetamine  dealing.     Nothing  had  come  of  the assistance he had provided, and the Judge was not inclined to give credit where the co-operation had not borne fruit.

[15]     As  to  the extent  of  discount  for the  combination  of Mr Slape’s  personal circumstances, I am not persuaded that a discount of a little less than 10 per cent was demonstrably inadequate.   This is quintessentially an evaluative exercise for the sentencing Judge, and there was no error of principle demonstrated.   I note that Mr Slape’s  dependence  on  cannabis  for  pain  relief  purposes  has  arguably  been recognised by giving him credit in two respects.  First, by way of explanation for a substantial portion of the quantities of cannabis found as being for personal use, when otherwise they would have been characterised as a commercial enterprise on a larger scale.  Secondly, by taking the dependence into account as a mitigating factor that contributed to the four month discount.

[16]     Recalculating the components of the sentence to apply this reasoning would result in the two and a half year starting point, increased by eight months (to a total of 38 months) less four months for personal mitigating circumstances (34 months) reduced by 25 per cent for the guilty pleas would result in 25.5 months or, rounded down, 25 months being two years and one month.

[17]     As I debated with Ms Woodcock, the consequence of an adjustment to this extent raises a final issue that has to be considered.   The onus on an appellant to make out that an end sentence is manifestly excessive is to require a threshold that restrains the court on appeal from allowing appeals where the extent of alteration is no more than tinkering with the outcome.

[18]     Having reflected on all the considerations, and with respect to the sentencing Judge, I find that the identified difference does render the final sentence in this case manifestly excessive and accordingly I allow the appeal.

[19]    The effective sentence of two years and four months is quashed and is substituted with a sentence of two years and one month’s imprisonment.   The concurrent   sentences   on   the   firearms   convictions   are   to   be   adjusted   to   a commensurate extent so that the unlawful possession of the .22 rifle is reduced from

15  months  to  12  months’ imprisonment,  and  the  two  convictions  for  unlawful possession of pistols is reduced from 18 months to 15 months’ imprisonment.  The sentences on the remaining convictions are to stand as imposed.

Dobson J

Solicitors:

Crown Law, Wellington for respondent

Counsel:

J M Woodcock, New Plymouth