Taumata v The Queen - [2010] NZCA 107

IN THE COURT OF APPEAL OF NEW ZEALAND
CA7/2010
[2010] NZCA 107
BETWEENLIONEL PAUL JOSEPH TAUMATA

Appellant

ANDTHE QUEEN

Respondent

Hearing:17 March 2010

Court:O'Regan, Rodney Hansen and Simon France JJ
Counsel:S G Vidal for Appellant

S B Edwards for Respondent

Judgment:30 March 2010 at 10.30 am

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.
BThe appeal against sentence is allowed. All sentences of imprisonment are cancelled. On the charge of possessing cannabis oil for supply, the appellant is sentenced to five months’ home detention with the conditions set out in [40]. On the remaining charges he is convicted and discharged.

____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France J)
Introduction
[1]        Mr Taumata was charged with possessing cannabis for supply, and possessing cannabis oil for supply. He was acquitted in relation to the cannabis and convicted in relation to the oil. The cannabis was poor quality leaf, being what is known as “cabbage”. Cabbage is usually used to make cannabis oil and the jury obviously accepted Mr Taumata’s evidence that he possessed it for that reason. However, his evidence that all the cannabis oil was for his own use was rejected.
[2]        Mr Taumata appeals his conviction on the sole ground that his video interview, which was played to the jury, contained inadmissible evidence that he had previously sold drugs.
[3]        Mr Taumata was sentenced to two years six months’ imprisonment on the cannabis oil charge, and to concurrent sentences of six months’ imprisonment on two summary charges to which he had earlier pleaded guilty.[1] He appeals the sentence on the basis that it is manifestly excessive.
Factual background
[1]      R v Taumata DC Invercargill CRI-2009‑025‑994, 3 December 2009.
[4]        A search warrant was executed at the address where Mr Taumata was living with his partner and son. Located at the scene were:
(a)          687 grams of cannabis leaf in three separate bags;
(b)         22 grams of cannabis in a tin and a snaplock bag;
(c)          A bottle containing 25 caps of cannabis oil;
(d)A container in which there were other bottles with both empty capsules and one filled capsule, and a spoon with oil residue on it;

(e) A rucksack with $10,130 cash, and $1,878 in cheques;
(f) A container with $572 in cash;
(g)In the car a container of Isopropyl alcohol, scales and what were alleged to be tick lists.

[5]        Mr Taumata gave two police interviews during the course of which he admitted the drugs were his, but said it was all for his own use. He said he had brought a considerable quantity of cannabis with him when he moved to Gore from the North Island some months earlier. He admitted to making the cannabis oil.
[6]        Mr Taumata explained some of the cash by reference to a series of transactions involving motor vehicles; the balance of the money was savings of his and his partner, which he preferred to keep in cash form.
[7]        The prosecution evidence at trial was largely…

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 Taumata v The Queen

Details

AGLC: Taumata v The Queen [2010] NZCA 107
Case: [2010] NZCA 107
Decision Date: 30 March 2010

CaseChat Overview and Summary

Lionel Paul Joseph Taumata appealed against both his conviction and sentence. The appeal against conviction was dismissed, while the appeal against sentence was allowed. The appellant was convicted of possessing cannabis oil for supply but was acquitted of possessing cannabis for the same purpose. The cannabis was low quality and the jury accepted the appellant's evidence that he possessed it for making oil. However, his evidence that all the cannabis oil was for his own use was rejected. The appellant argued that his video interview, which was played to the jury, contained inadmissible evidence that he had previously sold drugs. The court found that the inadmissible evidence was not significant enough to result in an unfair trial. The appellant was sentenced to two years and six months' imprisonment on the cannabis oil charge, and to concurrent sentences of six months' imprisonment on two summary charges to which he had earlier pleaded guilty. He appealed the sentence on the basis that it was manifestly excessive. The court found that the starting point of two years was too high, and that an uplift was not necessary. The court imposed a sentence of five months' home detention on the charge of possessing cannabis oil for supply. The concurrent shorter sentences of six months' imprisonment were quashed as they could not be concurrent with a sentence of home detention.

The final orders were that the conviction appeal was dismissed, the sentence appeal was allowed, and all terms of imprisonment were quashed. On the charge of possessing cannabis oil for supply, the court imposed a sentence of five months' home detention with the conditions identified in [40]. On the charges of possession of instruments for the consumption of cannabis, and possession of a precursor substance, the court imposed no penalty.

Orders