Wright v The Queen - [2013] NZCA 210

IN THE COURT OF APPEAL OF NEW ZEALAND

CA86/2013
[2013] NZCA 210

BETWEEN	CAREY SELWYN WRIGHT Appellant
AND	THE QUEEN Respondent

Hearing:	7 May 2013
Court:	Wild, Chisholm and Keane JJ
Counsel:	R M Gould for Appellant K A L Bicknell for Respondent
Judgment:	7 June 2013 at 10 am

JUDGMENT OF THE COURT

AThe appeal is allowed in part.
BThe order for forfeiture of 100 per cent of the appellant’s interest in the property near Picton is quashed, and is replaced with an order for forfeiture of 50 per cent of that property.
CIn all other respects the appeal is dismissed.

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REASONS OF THE COURT

(Given by Chisholm J)

Introduction

When the police searched Mr Wright’s property near Picton they found cannabis being grown in a shed on the property and that electricity meters had been tampered with. Mr Wright was charged with cultivating cannabis between 9 December 2004 (when Mr Wright acquired the property) and 16 September 2011 (the day following the search). He was also charged with stealing electricity during the same period.
While disputing the duration and scale of the offending, Mr Wright pleaded guilty to both charges. Following a disputed facts hearing Judge Zohrab found that Mr Wright had been cultivating cannabis for just over two years preceding the search.[1] It was ultimately agreed that for sentencing purposes the value of the electricity that had been stolen was $1692.98.
[1]R v Wright DC Blenheim CRI-2011-06-1911, 23 November 2012 [the disputed facts decision].
Mr Wright was sentenced to nine months home detention, 175 hours community work, and his interest in a property was forfeited to the Crown.[2] He was also ordered to pay $692.98 by way of reparation (he had already paid $1000). He appeals against that sentence on the ground that the sentence was manifestly excessive because the Judge: erroneously found that the cultivation had extended over two years; adopted a starting point that was too high; and erred in the exercise of his discretion when ordering forfeiture of the property.

Background

[2]R v Wright DC Nelson CRI-2011-06-1911, 15 January 2013 [the sentencing decision].

The property comprises 1012m². Apart from the dwelling it has two sheds which were described as the “green shed” and the “Totalspan” shed.
When the police executed a search warrant they found a growing operation in the Totalspan shed. Two cannabis plants standing about 0.69m high and 88 seedlings ranging between 5cm and 15cm high were located, together with paraphernalia associated with the cultivation of cannabis. The grow room was divided into two separate rooms and the cannabis plants were located in the smaller half. Electricity meters recording the usage of power had been tampered with.
Following his arrest Mr Wright was interviewed. He claimed that he had only just set up the operation, because he needed some money. Then he said he had set it up to save himself money, so that he did not have to buy cannabis.

Appeal against disputed facts findings

A…

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 Wright v The Queen

Details

AGLC: Wright v The Queen [2013] NZCA 210
Case: [2013] NZCA 210
Decision Date: 7 June 2013 at 10 am

CaseChat Overview and Summary

The appellant, Carey Selwyn Wright, appealed against his conviction and sentence for cultivating cannabis and stealing electricity. Wright was found guilty of cultivating cannabis for over two years and stealing electricity from the date of acquiring the property until the day following the search. He was sentenced to nine months home detention, 175 hours of community work, and his interest in the property was forfeited to the Crown. Wright appealed the sentence on the grounds that it was manifestly excessive and that the court erred in the exercise of its discretion when ordering the forfeiture of the property. The appeal was heard by the Court of Appeal of New Zealand.

The court considered the arguments regarding the starting point and the order for forfeiture. The court found that the starting point of three years was within the range available to the Judge, but the order for forfeiture of 100 per cent interest in the property was disproportionate to the totality of the offending and Wright's circumstances. The court replaced the order for forfeiture with an order for forfeiture of 50 per cent of the property.

The court found that the property was purchased with funds from a legitimate source and occupied for several years for legitimate purposes. While the operation was of a commercial nature, its sophistication was relatively limited. Wright had previous convictions for offending of a similar nature, but they were more than 20 years ago. Wright pleaded guilty, and his $25,000 equity in the property, while not a substantial sum, was his only significant asset. At the age of 59, he would find it very difficult to re-establish himself if 100 per cent of that equity was forfeited. The court also considered the other components of the sentence, home detention, community work, and reparation.

The appeal was allowed in part. The order for forfeiture of 100 per cent of the appellant's interest in the property near Picton was quashed, and replaced with an order for forfeiture of 50 per cent of that property. In all other respects, the appeal was dismissed.

Orders