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Vernon v R

Vernon v R

Case [2010] NZCA 308 19 July 2010

Criminal Liability

Sentencing

Unjustified Disparity

Double Jeopardy

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA130/2010
[2010] NZCA 308
BETWEENDAVID JOHN VERNON

Appellant

ANDTHE QUEEN

Respondent

Hearing:1 June 2010

Court:Arnold, Wild and Simon France JJ
Counsel:J C Gwilliam for Appellant

M J Inwood and S M McClean for Respondent

Judgment:19 July 2010 at 9.30 am

JUDGMENT OF THE COURT

A The appeal is allowed to the extent that the sentence of five and a half years imprisonment for possession of equipment to cultivate cannabis is quashed and replaced by a sentence of three and a half years imprisonment, to be served concurrently with the sentences for the other offending.

B            In all other respects the appeal is dismissed.
REASONS OF THE COURT
(Given by Arnold J)
Introduction
[1]        The appellant was charged with cultivation of cannabis, possession of cannabis for sale, sale of cannabis, possession of equipment to cultivate cannabis, possession of LSD for supply and theft of electricity. He entered guilty pleas to cultivation of cannabis and possession of equipment to cultivate cannabis on the morning of trial. Following a jury trial before Miller J he was convicted of possession of cannabis for sale, selling cannabis and theft of electricity. He was acquitted of the charge of possessing LSD.
[2]        A co-offender, Mr Campbell, faced similar charges. On the morning of trial, he entered guilty pleas in relation to all the charges except that involving possession of LSD, of which he was also acquitted having been jointly tried with the appellant.
[3]        Miller J sentenced the appellant to an effective sentence of five and a half years imprisonment and Mr Campbell to an effective sentence of three years imprisonment. Both men were ordered to pay reparation of $6,500 to Genesis Energy Ltd in respect of the stolen electricity.[1]
[1]      R v Campbell and Vernon HC Wellington CRI-2008-085-7145, 12 February 2010.
[4]        The appellant appeals against his sentence on five grounds:
(a)          The starting point of four and a half years was too high;
(b)         The uplift of 12 months for aggravating features was too high;
(c)There is an unjustified disparity between the appellant’s sentence and that imposed on Mr Campbell;
(d)The Judge should have sentenced the appellant as a party; and
(e)The Judge erred in imposing a sentence of five and a half years in relation to the possession of equipment charge.

[5] Ms Inwood for the Crown accepted that the appeal had to succeed on the final point as the maximum penalty for the possession of equipment offence was five years imprisonment, which the Judge had exceeded. She submitted that the appropriate sentence on that offending was three and a half years, to be served concurrently with the sentences imposed on the remaining offending. We accept that.
Background
[6] In 2007 the appellant and Mr Campbell set up an elaborate hydroponic cannabis operation in rented commercial premises, the annual rent for which was $25,000. The operation allowed for several cycles of cannabis plants at varying stages of development to be cultivated at once, with separate…

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 Vernon v R

Details

AGLC: Vernon v R [2010] NZCA 308
Case: [2010] NZCA 308
Decision Date: 19 July 2010

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, David John Vernon appealed against his sentence for various drug-related charges. The appellant was found guilty of cultivating cannabis, possessing cannabis for sale, selling cannabis, possessing equipment to cultivate cannabis, possessing LSD for supply, and stealing electricity. Vernon entered guilty pleas to cultivating cannabis and possessing equipment to cultivate cannabis. The appellant was sentenced to an effective sentence of five and a half years imprisonment. He appealed against his sentence on five grounds. The first ground was that the starting point of four and a half years was too high. The second ground was that the uplift of 12 months for aggravating features was too high. The third ground was that there was an unjustified disparity between the appellant’s sentence and that imposed on Mr Campbell. The fourth ground was that the Judge should have sentenced the appellant as a party. The fifth ground was that the Judge erred in imposing a sentence of five and a half years in relation to the possession of equipment charge. The Court of Appeal allowed the appeal to the extent that the sentence of five and a half years imprisonment for possession of equipment to cultivate cannabis was quashed and replaced by a sentence of three and a half years imprisonment, to be served concurrently with the sentences for the other offending. In all other respects, the appeal against sentence was dismissed.

The court considered the appeal under three heads – the starting point, the uplift and disparity. In relation to the starting point, the court considered that the Judge was entitled to adopt a starting point of four and a half years. This was a highly sophisticated commercial operation, with the potential to produce a substantial annual income. That was the significant feature, not the precise number of plants involved. In relation to the uplift, the court considered that Miller J made a sufficient allowance, although some judges may have allowed a little more. Previous convictions and the commission of offences while on parole are, as a matter of statute, aggravating features in subsequent sentencing. In relation to disparity, the court found that there were clear grounds to distinguish between the position of Mr Campbell and the appellant. In particular, there were no aggravating features in relation to Mr Campbell comparable to those in relation to the appellant.

The appeal against sentence was allowed to the extent that the sentence of five and a half years imprisonment for possession of equipment to cultivate cannabis was quashed and replaced by a sentence of three and a half years imprisonment, to be served concurrently with the sentences for the other offending. In all other respects, the appeal against sentence was dismissed.

Orders