EMERY v POLICE [2018] NZHC 91

EMERY v POLICE [2018] NZHC 91 [9 February 2018]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2017-419-78[2018] NZHC 91BETWEEN GEOFFREY NGAMANE EMERYAppellantAND NEW ZEALAND POLICERespondentHearing: 7 February 2018Counsel: M H McIvor for AppellantM Dillon for RespondentJudgment: 9 February 2018JUDGMENT OF WHATA JThis judgment was delivered by me on 9 February 2018 at 4.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Crown Solicitors, Hamilton[1] Mr Emery was convicted on the following charges:(a) Cultivating cannabis (x2);(b) Possessing methamphetamine (x2);(c) Possession of a firearm;(d) Possession of ammunition;(e) Driving while suspended; and(f) Possession of utensils for methamphetamine.[2] The combined sentence for these matters was 30 months' imprisonment. MrEmery appeals the sentence. He does not challenge the starting point for the leadcultivation charge of two years. Rather, he says that the Judge failed to have regard tothe totality principle and the various uplifts for the other offending were manifestlyexcessive.Background[3] Two search warrants were executed at Mr Emery's property. When the firstwarrant was executed on 29 August 2016, a cultivation setup was found in a bedroominside the property. It comprised three mature cannabis plants and 37 cannabisseedlings growing in dirt pots. Four glass pipes used for the consumption ofmethamphetamine and various point bags containing methamphetamine residue werealso found.[4] When the second search warrant was executed on 24 September 2016, 23 smallcannabis plants were located inside a cupboard. Small dead cannabis plants were alsofound, together with .0139 grams of methamphetamine and 0.44 grams of cannabis. A.22 calibre pistol firearm and ammunition of various types, were also found at thepremises.[5] Mr Emery drove having previously been suspended for incurring the requisitenumber of demerit points for speeding. His last driving offence is recorded as havingoccurred in 1996.[6] Judge Menzies sentenced Mr Emery to 30 months' imprisonment, commencingwith a start point on the lead cultivation offending of 24 months. He uplifted the startpoint by 9 months for the firearms offending, 2 months for the methamphetamineoffending, 2 months for driving while suspended and a further 2 months for unpaidfines. He applied a discount of about 23% for early guilty plea.Jurisdiction[7] Section 250(2) of the Criminal Procedure Act 2011 states that I may allow anappeal if for any reason there was an error in sentence imposed on conviction and adifferent sentence should be imposed. A sentence that is manifestly excessive may beset aside pursuant to this jurisdiction.1Assessment[8] I can deal with the appeal summarily. I accept the appellant's submission that:(a) The Judge does not expressly refer to the totality principle;(b) The uplifts for driving while suspended (2 months) and for unpaid fines(2 months) were excessive;(c) The cannabis and methamphetamine drug offending should have beendealt with together.[9] But I do not accept the end sentence was manifestly excessive or otherwisewrong in the result. First, a start point of 24-30 months for the cultivation andmethamphetamine charges was plainly available given the tariff authority – Terewi.21 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [31]-[33].2 R v Terewi [1999] NZCA 92, [1999] 3 NZLR 62 at [4]. See also Crutchley v R [2015] NZCA 473at [18]. I note that the Court in R v Smyth [2017] NZCA 530 at [17] accepted that Terewi "maySignificantly there were two sets of cultivation offending involving in combination 60plants and seedlings. The second set occurred while Mr Emery was facing charges onthe first set of offending. It was foolishly brazen. The combination of offendingtherefore warranted a higher start point than 2 years, being the bottom point in theband for a single set of offending of the present scale.[10] Second, the firearms conviction could have received an uplift in the range of12-18 months.3 This was not an everyday hunting rifle. It was a homemade pistolfound in his jacket pocket. There does not appear to be any mitigating circumstancesthat might explain the presence of the firearm.4 The logical inference is that it wasassociated with the drug offending.[11] Third, there is no evidence of remorse – on the contrary the PAC reportsuggests Mr Emery has minimised his offending.[12] Fourth, in combination, the drug offending and the firearms offending justifiedan end sentence after a 25% discount for guilty plea in the range of 27 – 36 months.Applying a totality approach, an end sentence in the order of 30 months was notmanifestly excessive.[13] Accordingly, while the sentence was imposed by a different route, it was notwrong.[14] The appeal is dismissed.require reconsideration given changing social attitudes" but it would be inappropriate to reconsiderthe Terewi bands in this case.3 Mills v R [2016] NZCA 245 at [18]-[22].4 Mr Emery's explanation recorded in his PAC report was that the .22 pistol was payment in kindfor work done. He accepted however that given his prior convictions, he was not entitled to carrya firearm regardless.