Stuart v Police - [2016] NZHC 2988

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2016-406-9 [2016] NZHC 2988

BETWEEN
DAVID GLENN STUART

Appellant

AND

NEW ZEALAND POLICE Respondent

CRI-2016-406-10

BETWEEN ANDREW DAVID STUART Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:
6 December 2016

(Heard at Wellington)

Counsel:

R M Gould for D G Stuart

R A Harrison for A D Stuart (by AVL) F G Biggs for respondent

Judgment:

13 December 2016

RESERVED JUDGMENT OF DOBSON J

[1] This judgment deals with the appeals by two brothers against the sentences imposed on each of them of 27 months’ imprisonment on convictions for being parties to one charge of possessing cannabis for sale.

Circumstances of the offending

[2] On 17 April 2015, the principal in this offending, Mr Gane, boarded his yacht in Picton to sail in the Marlborough Sounds for the purpose of harvesting crops of
cannabis. On 18 April 2015, he was joined by the appellants, David and Andrew

STUART v POLICE [2016] NZHC 2988 [13 December 2016]

Stuart. That night they harvested plots of cannabis using the yacht and a smaller vessel, storing the cannabis on board. The Police searched the yacht on 24 April
2015, at which time only David Stuart was on board, and seized some

11.58 kilograms of good quality cannabis. The Police estimated its worth at between

$94,000 and $134,000.

[3] The cannabis plots had been planted in 2014 by Mr Gane, assisted by others, but not by David and Andrew Stuart. This operation comprised the Marlborough Sounds branch of a relatively sophisticated and large-scale commercial cannabis growing operation organised by Mr Gane, who had a number of previous convictions for offending of this type.

The sentencing process

[4] On 5 July 2016, Judge Ruth responded to a request from all three of the defendants for a sentence indication.1 Although other charges had been laid against David and Andrew Stuart, the indication was given on the basis that they would be convicted of a single charge of being a party to possession of cannabis for sale.

[5] The Judge noted that he was obliged to provide the indication on the summary of facts as provided to him, although he observed that it had “… had some cutting and pasting, and so I imagine it has already been the subject of some discussion”.2

[6] The Judge’s analysis of the potential sentences began with the position of the principal, Mr Gane. The Judge isolated the Marlborough offending from other charges Mr Gane was facing in relation to activities in Christchurch. The salient features of Mr Gane’s relevant offending were the extent of cannabis involved (some
26.9 pounds), the relative sophistication of the scheme for growing, harvesting and processing the cannabis, and the extent of Mr Gane’s previous convictions of a similar type. His offending was treated as being within category 2 of R v Terewi,
which provides for terms of imprisonment of between two and four years.3

1 R v Gane HC Blenheim CRI-2015-006-409, 5 July 2016.
2 At [4].
3

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 Stuart v Police

Details

AGLC: Stuart v Police [2016] NZHC 2988
Case: [2016] NZHC 2988
Decision Date: 13 December 2016

CaseChat Overview and Summary

This appeal concerns the sentences of 27 months’ imprisonment imposed on David Glenn Stuart and Andrew David Stuart for being parties to one charge of possessing cannabis for sale. The Stuart brothers were found on board a yacht in the Marlborough Sounds, alongside Mr Gane, who was the principal in the offending. The Police had seized some 11.58 kilograms of cannabis with an estimated worth of between $94,000 and $134,000. The Stuart brothers argued that the District Court Judge had erred in the extent of their involvement, the relativity between the principal and parties, and in not sufficiently discounting the sentence for their guilty pleas and personal circumstances. The Stuart brothers argued that the summary of facts misrepresented their involvement and suggested that they were involved in the offending from its inception, when in fact they were only involved in the April 2015 harvest. The Stuart brothers argued that the relativity between the principal and the parties was insufficient, and that they should have received a starting point of no more than one-third or one-half of the starting point for Mr Gane. The Stuart brothers argued that the Judge should have made a further discount for their guilty pleas and personal circumstances. The Crown submitted that the Judge had appropriately considered the Stuart brothers’ involvement, that there was no error in the relativity between the parties and the principal, and that the Judge had not erred in refusing to discount the sentence for personal circumstances. The Court found that the Stuart brothers’ involvement was not cast in misleading terms, but that the relative culpability between the Stuart brothers and Mr Gane was insufficient, and that the Judge should have made a further discount for their guilty pleas and personal circumstances. The Court found that an end sentence of no more than 24 months’ imprisonment would have been appropriate. The Court allowed the appeals and substituted terms of home detention.

Orders