Wark v Police - [2015] NZHC 3198

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000038 [2015] NZHC 3198

BETWEEN
NICHOLAS BRIAN WARK

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 December 2015

Appearances:

A Dawson for Appellant
L C Preston for Respondent

Judgment:

14 December 2015

ORAL JUDGMENT OF GENDALL J

[1] The appellant Nicholas Brian Wark pleaded guilty to one charge of cultivation of cannabis.1 This is punishable by a term of imprisonment not exceeding seven years.2 On 23 September 2015 Judge Strettell in the District Court sentenced Mr Wark to two years and three months’ imprisonment.3 Mr Wark now appeals this sentence on the following grounds:

(a) the adopted starting point was too high;

(b) insufficient credit was given for mitigating factors; and

(c) the sentence imposed was manifestly excessive.

1      Misuse of Drugs Act 1975, s 9(1).
2      Misuse of Drugs Act 1975, s 9(2).
3      R v Wark [2015] NZDC 19184.

WARK v NEW ZEALAND POLICE [2015] NZHC 3198 [14 December 2015]

Background

Background of the offending

[2] Turning first to the background of the offending, on 4 August 2015 a drug search was carried out at 113 Canongate, Dunedin. Approximately six months prior Mr Wark had been given access to the property by the owner for the purpose of completing building work and home improvements. During this time he constructed secret cannabis growing rooms, hidden behind newly erected false walls. Access to these rooms could be gained through the lower basement via a hidden hatch. At the time of the raid on the property the address was unoccupied and the appellant Mr Wark was using the address solely as a hiding place for his cannabis operation.

[3] The first of the growing rooms was a nursery containing one growing light and four cannabis seedlings. Behind a further false wall was a main growing room with 30 mature cannabis plants, all healthy and well maintained.

[4] When approached with regard to what was found, Mr Wark explained that he had been growing 30 cannabis plants for the last ten weeks and they were approximately two weeks from harvest. He expected to yield two to three ounces of quality cannabis from each of the plants. That is 60 to 90 ounces with a commercial value of between $18,000 and $36,000.

The District Court sentencing

[5] Turning now to the sentencing in the District Court Judge Strettell noted that an issue at sentencing was the comment made by Mr Wark in his probation report indicating that the cannabis was not for sale. However, the Judge found that the simple quantity of plants alongside the sophistication of the operation indicated that it was at least a small commercial crop. This was discussed by counsel at the time of sentencing and it was accepted that this was an inference that could be made in part, and also that there was a self interest, it seems, in the operation.

[6] Mr Wark wrote to the Court demonstrating remorse that he had let down his partner and…

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 Wark v Police

Details

AGLC: Wark v Police [2015] NZHC 3198
Case: [2015] NZHC 3198
Decision Date: 14 December 2015

CaseChat Overview and Summary

Nicholas Brian Wark appealed his two years and three months’ imprisonment sentence for cannabis cultivation, arguing that the starting point was too high, insufficient credit was given for mitigating factors, and the sentence imposed was manifestly excessive. The case was heard by the High Court of New Zealand. The key legal issues were whether there was an error in the sentence and if a different sentence should be imposed.

The court examined the starting point, noting the offending was at the lower end of category two, generally attracting a sentence between two and four years. Although the court found a starting point of two years and four months would have been more appropriate, it determined that the sentence imposed was within the allowed range. Regarding mitigating factors, the court found that the sentencing judge had considered these adequately. The court concluded that although there might have been minor errors in sentencing, a different sentence should not be imposed as the sentence imposed was within the appropriate range.

The appeal was dismissed, and the original sentence of two years and three months’ imprisonment was upheld.

Orders