HOWARD v POLICE [2017] NZHC 2613

HOWARD v POLICE [2017] NZHC 2613 [25 October 2017]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGAREI TERENGA PARAOA ROHECRI-2017-488-000021[2017] NZHC 2613BETWEEN DAVID ALLAN HOWARDAppellantAND NEW ZEALAND POLICERespondentHearing: 24 October 2017Counsel: TD Clee for AppellantSJ Barnaart for RespondentJudgment: 25 October 2017JUDGMENT OF DOWNS JThis judgment was delivered by me on Wednesday, 25 October 2017 at 4 pm.Registrar/Deputy RegistrarSolicitors/Counsel:T Clee, Auckland.Crown Solicitor, Whangarei.[1] This is a conviction and sentence appeal.[2] Mr David Howard pleaded guilty to cultivating cannabis and two charges ofpossessing a military style semi-automatic firearm. Judge K B de Ridder sentencedMr Howard to a term of 10 months' home detention.1 Mr Howard contends the Judgeerred in concluding the cannabis offending was at least in part commercial in nature—there was a disputed facts hearing—and in not discharging Mr Howard withoutconviction on the firearms charges.[3] The offending was detected by warrantless search on 25 November 2015.Police found 127 cannabis plants growing at Mr Howard's home. The plants were inthree different areas.[4] Fifty-one plants were in a bedroom modified for cultivating cannabis. Theroom was lined with silver paper and vented. These plants were growing under lights.[5] Twenty-nine plants were in a grow-tent in an ensuite bathroom in the showerbox. These plants included four large "mother" plants, from which cuttings appearedto have been taken. The grow-tent was vented through the ceiling and connected tomains water supply. These plants were also growing under lights.[6] The remaining 23 plants were in a greenhouse.[7] Scales and packaging consistent with the supply of cannabis were also foundat the home. A detective with experience in relation to controlled drugs harvested60 ounces of cannabis from the plants. He testified if those in the main grow roomhad been cultivated a little longer (by which he meant two or three weeks), yield wouldhave doubled. The detective also said an ounce of cannabis was worth $300 (in March2015).[8] The two firearms—a Saiga semi-automatic 12 gauge shotgun, and a Norincosemi-automatic rifle—were in an unlocked gun rack in the main bedroom. The latter1 Police v Howard [2017] NZDC 12910.was loaded. Magazines for each were found in the same room. Mr Howard hadpurchased the firearms lawfully earlier that year. But because one was loaded, andmagazines for both were found close by, the weapons were military stylesemi-automatic firearms for which Mr Howard had no licence.[9] Judge de Ridder appeared to accept some of the cannabis was for Mr Howard'spersonal use and that of his partner; Mr Howard said as much to the Police but did nottestify at the disputed facts hearing. However, the Judge concluded the totality ofevidence permitted an inference the cannabis was otherwise being cultivated for acommercial purpose.2The issue simply comes down to one of whether or not, in all thecircumstances, it is a valid inference to draw that this was a commercialoperation. Given the ongoing nature of the operation, the fact that it was setup to supply cannabis on a continuous basis, the amount of cannabis head bothfound and potentially to be produced, all in my view, point to a clear andlogical inference that this was a commercial operation. That of course, is notinconsistent with personal use as well, but the predominant purpose was acommercial one. To a certain extent that is supported by the fact that thedefendant was a sickness beneficiary which leads to a reasonable inferencethat this was an attempt to supplement his limited income.[10] On behalf of Mr Howard, Mr Clee contends this inference was not available tothe criminal standard. He invites attention to the absence of direct evidence on theissue of commerciality, Mr Howard's heavy and longstanding consumption ofcannabis, to the fact items such as scales are found in most homes, and to the absenceof any evidence concerning Mr Howard's financial circumstances. Mr Clee contendsan inference of commerciality was "plainly wrong", for, there was no evidence MrHoward intended to sell any of the cannabis found by Police.[11] I disagree. It was open to Judge de Ridder to infer commerciality for thereasons the Judge gave. The number of plants, yield, potential yield, price, ongoinglabour involved in the operation, and presence of scales and plastic bags combine toimply commerciality—or at least an intention to sell some of the cannabis. Theoperation discovered by Police was hardly small. It was open to the Judge to infer thecultivated plants—in total 127—could produce far more cannabis than Mr Howard2 Police v Howard [2017] NZDC 7365 at [27].and his partner could consume. The logical inference in these circumstances was thatMr Howard intended commercial supply in relation to the balance.[12] The sentence appeal is dismissed.[13] The conviction appeal rests on the proposition the direct and indirectconsequences of conviction in relation to the firearms offences were out of allproportion to the gravity of that offending.[14] Again, the contrary conclusion was well open to the Judge. Courts have longexpressed concern about Arms Act offending in conjunction with offending contraryto the Misuse of Drugs Act. That principle was engaged here. And, the firearms inquestion were military-style weapons. Moreover, Mr Clee responsibly accepted hecould not point to anything more than "general" consequences vis-à-vis conviction;for example, the removal of Mr Howard's firearms licence. That, however, is a naturaland ordinary consequence of offending of this kind. And in any event, a matter for thePolice rather than the Courts. In short, no disproportionality emerges as between thegravity of the offending and the consequences of conviction.[15] The conviction appeal is dismissed...Downs J