Williams v Police - [2016] NZHC 3052

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000123 [2016] NZHC 3052

BETWEEN
NICHOLAS WILLIAMS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 13 December 2016

Appearances:

L L Heah for Appellant
E J Henderson for Respondent

Judgment:

14 December 2016

JUDGMENT OF DUNNINGHAM J

[1] Mr Nicholas Williams appeals his sentence of 21 months’ imprisonment on convictions for cultivation and possession for the purpose of supply of a Class C drug, namely, cannabis.1 The sentence is appealed on two grounds:

(a) the sentence of 21 months’ imprisonment is manifestly excessive; and

(b) the Judge erred in refusing to impose home detention.

Background

[2] On 2 August 2016, the police were at the appellant’s residence on an unrelated matter and they noted a strong smell of cannabis. They invoked their statutory power to search for drugs under the Search and Surveillance Act 2012.

1 New Zealand Police v Williams [2016] NZDC 21909.

WILLIAMS v NEW ZEALAND POLICE [2016] NZHC 3052 [14 December 2016]

[3] The police located nine mature cannabis plants in a shed at the rear of the property and a further 12 mature cannabis plants were found in the roof space above the garage. Ducting and heat lamps were also positioned in the roof space and the police found fertiliser and other growing products.

[4] In addition, 512 grams of cannabis heads were located on a drying rack in the garage. A pot containing 217 grams of cannabis butter was located in the garage freezer and scales, two boxes of zip block bags, and a bag containing approximately
100 additional zip lock bags were also found on site. One zip lock bag contained a quantity of cannabis bud.

District Court decision

[5] In sentencing the appellant, Judge Saunders applied the tariff judgment of R v Terewi, where the Court of Appeal categorised the cultivation of cannabis into three bands.2 Judge Saunders placed the appellant’s offending into Band 2, being cultivation of cannabis at a minor to moderate level of commerciality. He adopted a starting point of 24 months’ imprisonment and uplifted a further four months’ for the appellant’s previous drug related conviction. He then gave a 25 per cent discount for
the appellant’s early guilty plea, resulting in an end sentence of 21 months’

imprisonment.

[6] In considering whether home detention should be imposed instead of a short term of imprisonment, Judge Saunders was concerned about the fact that the cultivation of cannabis was carried out at the appellant’s residence and therefore a sentence of home detention may defeat the purpose of denunciation and deterrence.
The Judge cited the High Court’s decisions in R v Hill3 and R v Morunga,4 where the

Courts had held that in circumstances where the offending occurred in the offender’s

residence, the Court should be more reluctant to impose home detention.

2      R v Terewi [1999] 3 NZLR 62 (CA).
3      R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.
4      R v Morunga [2013] NZHC 1935

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.

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Details

Case: [2016] NZHC 3052
Decision Date: 14 December 2016

CaseChat Overview and Summary

Nicholas Williams appeals his sentence of 21 months’ imprisonment on convictions for cultivating and possessing cannabis for the purpose of supply. The appeal is based on the grounds that the sentence is manifestly excessive and that the Judge erred in refusing to impose home detention instead of imprisonment. The appeal was heard in the High Court of New Zealand at Christchurch.

The legal issues before the Court were whether the sentence imposed was manifestly excessive and whether the Judge erred in not imposing home detention. The Court had to determine if the starting point of two years’ imprisonment for Band 2 cannabis cultivation was appropriate, and whether the Judge properly exercised his discretion in declining to impose home detention.

The Court found that the evidence supported placing the offending in Band 2 of the cannabis cultivation categories, justifying a starting point of two years’ imprisonment. The appellant’s submission that the sentence was excessive was rejected as the cases cited did not support the appellant’s position, either because of factual differences or insufficient detail to assess comparability. The Court also found no error in the Judge’s decision to decline home detention. The Judge had properly considered the principles and purposes of sentencing, including the need for deterrence and denunciation, and had balanced these with the appellant’s personal circumstances.

The appeal was dismissed as neither ground of appeal was substantiated.

Orders