White v R - [2010] NZCA 565

IN THE COURT OF APPEAL OF NEW ZEALAND
CA633/2010
[2010] NZCA 565
BETWEENROBERT JOHN WHITE

Appellant

ANDTHE QUEEN

Respondent

Hearing:24 November 2010

Court:Harrison, Ronald Young and Keane JJ
Counsel:J J McCall and M R Smyth for Appellant

M F Laracy and M H Cooke for Respondent

Judgment:24 November 2010

ORAL JUDGMENT OF THE COURT

A.          The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
[1]        When the police executed a search warrant in May 2010 at an address rented by the appellant they found 90 cannabis plants. Later they also searched the appellant’s residential address. There they found further cannabis plants and 1.6 kilograms of dried cannabis. The appellant pleaded guilty to one count of cultivating cannabis and one of possession of cannabis for supply. Panckhurst J sentenced him to 18 months’ imprisonment.[1] The appellant says the Judge erred when he refused to impose a sentence of home detention.
[1]      R v White HC Christchurch CRI-2010-009-007016, 23 September 2010.
[2]        No point of principle arises and we are therefore able to give an oral judgment today.
Background facts
[3]        The property rented by the appellant in Bolton Avenue, Christchurch had two rooms set up to cultivate cannabis with pots, lights, filters, nutrients and soil. Of the 90 plants 42 were ready to be harvested and 48 were approximately four weeks old. The prosecution estimated that on four cycles per annum of 42 plants the two rooms could produce $100,000 worth of cannabis a year. The premises had been rented solely to grow the cannabis.
[4]        At the appellant’s home the police found four “mother” plants and over 150 cannabis seedlings. The dried cannabis found had a value of $19,900.
Sentencing
[5]        The Judge noted the appellant’s co‑operation with the police; his lack of previous convictions; and the positive nature of the pre‑sentence report including an assessment that he was at low risk of re‑offending as all relevant in assessing the correct sentence.
[6]        The Judge said the proper starting point was two and a half years’ imprisonment and deducted three months for the appellant’s personal circumstances and co‑operation as well as one third for his guilty plea resulting in the final sentence of 18 months’ imprisonment.
[7]        As to home detention the Judge at [11] said:
As you will have gathered from the discussion I have had with Mr McCall your case is squarely within what we call category 2 of a precedent decision R v Terewi. In that case the Court of Appeal effectively said that those who grow cannabis for commercial purposes will almost invariably receive prison sentences and that those who offend at the category 2 level can expect the sentence to be calculated from a starting point within a range of two to four years before adjustment is made for personal circumstances.

[8] And further, at [12] and [13] he said:
In this case the Crown argues that this was significant offending which falls towards the upper end of…

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 White v R

Details

AGLC: White v R [2010] NZCA 565
Case: [2010] NZCA 565
Decision Date: 24 November 2010

CaseChat Overview and Summary

In the case of White v R, the appellant, Robert John White, appealed against his conviction and sentence for cultivating cannabis and possession of cannabis for supply. The appeal was dismissed by the Court of Appeal of New Zealand. The appellant argued that the sentencing judge erred in not imposing a sentence of home detention instead of imprisonment. The court found that there was no conflict between the Court of Appeal's observations in R v Terewi and the introduction of section 15A of the Sentencing Act. The court found that the sentencing judge had appropriately considered home detention as a sentencing option but concluded that it was inappropriate given the seriousness of the offending. The court found that the appellant had conducted a sophisticated indoor cannabis growing operation, which could have yielded significant commercial benefits. The primary motivating principle for the sentencing was deterrence, and the court found no error in the sentencing judge's approach. Therefore, the appeal was dismissed.

Orders