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Smith v R

Smith v R

Case [2022] NZCA 606 6 December 2022

Possession of Controlled Substance

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA133/2022
[2022] NZCA 606

BETWEEN	CRAIG GRAY SMITH Appellant
AND	THE KING Respondent

Hearing:	22 September 2022
Court:	Gilbert, Brewer and Moore JJ
Counsel:	A M S Williams and C G Nolan for Appellant A L Mills for Respondent
Judgment:	6 December 2022 at 9.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Moore J)

Background

Craig Smith was convicted following a jury trial in the Greymouth District Court of one charge of possession of cannabis for the purpose of sale.[1] Judge J D Large sentenced him to seven months’ home detention.[2]
[1]Misuse of Drugs Act 1975, s 6(1)(f).
[2]R v Smith [2022] NZDC 3283 [Sentencing notes].
Mr Smith filed a notice of appeal against conviction and sentence. He later abandoned his conviction appeal. His sentence appeal remains extant. This judgment deals with that appeal.

The offending

On 28 April 2019, police executed a search warrant at Mr Smith’s Greymouth address. They found:
(a)2.3 kilograms of dried cannabis head in Mr Smith’s bedroom, stored in three banana boxes, one shoe box and a freezer bag;
(b)1.8 kilograms of dried cannabis head in the spare bedroom, stored in a purple sports bag;
(c)315 grams of dried cannabis head in the bathroom, stored in a plastic shopping bag;
(d)425 grams of dried cannabis head in the hot water cupboard, also stored in a plastic shopping bag;
(e)10 grams of cannabis head in the lounge, stored in a small zip-lock bag and a yellow shopping bag;
(f)three cannabis buds weighing approximately two grams on a magazine rack in the lounge;
(g)300 cannabis seeds on a computer desk in the lounge, stored in a small plastic canister; and
(h)a set of digital scales adjacent to the desk.
Mr Smith told police that he grew cannabis for personal use to alleviate his chronic back pain. This claim was supported by evidence from Mr Smith’s doctor, Dr Greville Wood.

District Court sentencing

Judge Large noted that the guideline judgment for cannabis cultivation was R v Terewi.[3] While Mr Smith had a “significant amount” of cannabis, the Judge accepted he used it for pain relief.[4] There was no evidence of commerciality.[5] The Judge found himself unable to determine how much was for supply and how much was for personal use. As a result, he took into account personal use as a mitigating factor.[6] He thus assessed Mr Smith’s culpability as between Category 1 and 2 of Terewi, rather than squarely in Category 2.[7] He set a starting point of 21 months’ imprisonment.[8]
[3]At [3], citing R v Terewi [1999] 3 NZLR 62 (CA).
[4]At [6].
[5]At [6].
[6]At [7].
[7]At [9]–[10].
[8]At [11].
The Judge accepted that Mr Smith had medical issues and a “clearly entwined” cannabis addiction.[9] He noted that Mr Smith now has a prescription for medicinal cannabis.[10] The Judge thus applied a discount of 30 per cent.[11]

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 Smith v R

Details

AGLC: Smith v R [2022] NZCA 606
Case: [2022] NZCA 606
Decision Date: 6 December 2022 at 9.30 am

CaseChat Overview and Summary

Craig Gray Smith appeals against the sentence imposed on him by the Greymouth District Court, which found him guilty of possession of cannabis for the purpose of sale. The Court of Appeal of New Zealand considers the appeal on two grounds: first, whether the starting point was too high and, second, whether home detention was an appropriate sentence. On the first ground, the Court finds that the starting point of 21 months' imprisonment was appropriate, taking into account the significant quantity of cannabis found and the mitigating factor of personal use. The starting point was within the range of other similar cases. On the second ground, the Court finds that home detention was an appropriate sentence, considering the need for accountability, deterrence, and denunciation. The restrictive nature of home detention appropriately recognised Smith's rehabilitative needs and the seriousness of the offence. The Court dismisses the appeal against sentence.

The Court of Appeal of New Zealand affirms the sentence of seven months' home detention imposed on Craig Gray Smith by the Greymouth District Court. The Court finds that the starting point of 21 months' imprisonment was appropriate, taking into account the significant quantity of cannabis found and the mitigating factor of personal use. The Court also finds that home detention was an appropriate sentence, considering the need for accountability, deterrence, and denunciation. The Court dismisses the appeal against sentence.

Orders