KENNEDY v NEW ZEALAND POLICE [2017] NZHC 3066

KENNEDY v NEW ZEALAND POLICE [2017] NZHC 3066 [11 December 2017]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2017-425-000046[2017] NZHC 3066BETWEEN HEATH KARAITIANA KENNEDYAppellantAND NEW ZEALAND POLICERespondentHearing: 11 December 2017Appearances: T J McCullum for AppellantR W Donnelly for the RespondentJudgment: 11 December 2017ORAL JUDGMENT OF DUNNINGHAM J[1] On 17 October 2017, the appellant, Mr Kennedy, was sentenced to 18 months'imprisonment on one charge of possessing cannabis for supply and a further charge ofcultivating cannabis for supply. He now appeals that sentence as manifestly excessive,asserting:(a) there was no evidence of commerciality of the offending;(b) a lower starting point should have been adopted; and(c) the end sentence imposed was therefore manifestly excessive.Background[2] On 15 August 2017, a search warrant was executed at the appellant's residence.When the police arrived to execute the warrant, the appellant co-operated and led thepolice to his bedroom to show them a 10-litre water container half filled with275 grams of cannabis head, an ammunition container with 126 grams of cannabishead stored inside four snap-lock bags. Additionally, police located a snap-lock bagcontaining 58 grams of cannabis head, along with digital scales and other small ziplock bags used for storing cannabis.[3] The appellant then showed the police upstairs where eight rubbish bags full ofcannabis leaf, weighing 1648 grams, were located. The upstairs was also set up witha clothesline hung from the roof to dry cannabis. In the freezer in the laundry therewere five bags containing 1209 grams of cannabis leaf. Three cannabis plants werelocated in the glasshouse at the rear of the property. A check of the garage revealed afurther grow room with four plants at various stages of growth, along with a heat lampand 158 cannabis clones. There was a further 21 grams of cannabis head located inthe appellant's vehicle.[4] The total amount of cannabis head recovered at the address weighed480 grams, along with almost 2.9 kilos of cannabis leaf.Jurisdiction[5] Mr Kennedy appeals as of right.1 This Court can only allow the appeal if it issatisfied that there is an error in the sentence imposed and that an alternative sentenceshould be imposed.2 If the sentence under appeal can be properly justified havingregard to relevant sentencing principles, this Court cannot substitute its own views forthose of the sentencing Judge. The sentence must be either manifestly excessive orinappropriate if the sentencing Judge's discretion is to be interfered with.1 Criminal Procedure Act 2011, s 244.2 Criminal Procedure Act, s 250.[6] It is not enough that the Judge made an error in his reasoning: the focus is onthe end sentence imposed rather than the process by which the sentence was reached.3District Court sentencing[7] The District Court Judge held that the appellant's offending fell into category2 of R v Terewi.4 Category 2 encompasses small scale cultivation of cannabis plantsfor a commercial purpose, that is, with the object of deriving profit. The starting pointfor sentencing is generally between two and four years, but where sales are infrequentand of very limited extent, a lower starting point may be justified.[8] In this case, the Judge adopted a starting point of two years' imprisonment,which was at the bottom of that band. He then gave a full discount of 25 per cent forthe appellant's guilty plea, so an end sentence of 18 months' imprisonment wasimposed. The Judge also observed that he would have preferred to sentence theappellant to home detention as it would have been the least restrictive outcome, butthe appellant was unable to supply a suitable address for a sentence of home detention.Appellant's submissions[9] The appellant submits that nothing in the summary of facts indicates that therewas commerciality to the offending on the part of the appellant. In particular, therewere no tick lists, money, phone records, evidence of sales or cannabis packaged forsale. Furthermore, the appellant told police that he was growing the cannabis forpersonal use to deal with his chronic pain.[10] In light of this, the appellant submits that the starting point adopted by theDistrict Court Judge was manifestly excessive and his offending was best categorisedat either the upper end of category 1 in Terewi and that a starting point of 18 months'imprisonment was appropriate.3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 R v Terewi [1999] 3 NZLR 62 (CA).Submissions for the New Zealand Police[11] The respondent submits that the starting point of two years was relativelylenient given the quantity of cannabis found and, in any event, was well within therange given the amount being grown, and the indicia of this being a commercialoperation.Analysis[12] In Devereau v Police, Mander J undertook an in-depth analysis of recentcannabis sentencing trends.5 In it he discussed a range of cases which fell within thedescription of a category 2 offence, but noted that some adopted a starting point belowthe two to four year bracket.6 However, equally, there have been a number of decisionswhich adopt the orthodox approach of Terewi and some of these are referred to inDevereau.7[13] However, as Mander J observed in Grainger v R:[14] The variation in the starting point is perhaps the inevitableconsequence of each case turning on its own circumstances. Furthermore, theCourt of Appeal recognised in R v McGlip when declining to reassesssentencing policy for low-end commercial cannabis growing, there will beflexibility in the approach to be taken to such offending. The sentencingdiscretion of the individual Judge at first instance when applying the guidanceprovided by the category 2 Terewi band is to be recognised.[14] The simple issue in this case is whether there is sufficient evidence ofcommerciality to justify a starting point at the bottom of band 2, or whether this shouldbe treated as being sufficiently lacking in commerciality that the Judge was in error bynot adopting a lower starting point.[15] In this case, the appellant has pleaded guilty to possession for supply and thisoperation was clearly beyond the scale required for personal use. The combination ofdigital scales and small zip lock bags is evidence to support the commerciality of the5 Devereux v Police [2017] NZHC 167.6 Mowberry v R [2012] NZHC 969, Needham v Police [2013] NZHC 688, R v Rauhihi HCPalmerston North CRI-2008-031-1438, 1 May 2009 and R v McGilp (2006) 23CRNZ 526 (CA).7 R v Edmonds CA 23/02 28 May 2002; R v McDonald HC Whangarei CRI-2011-088-3522,5 September 2011.supply and, indeed that was acknowledged today in submissions by Ms McCullum.The police pointed out in the original sentencing, that this evidence suggests a"growing operation of moderate commercial value".[16] I am satisfied that the starting point of two years is well within range given theamount of harvested cannabis head and leaf found, the number of cannabis plants andthe number of clones being grown and the associated evidence of a commercialoperation. While, on these facts, there is clearly room to have assessed the startingpoint as slightly higher within Terewi band 2 or, possibly lower, there can be no errorin placing this offending at the bottom of the band 2 category.[17] As this was the only aspect of sentencing challenged, and the Judge obviouslygave full credit for the guilty pleas on both charges, the appeal is dismissed.Solicitors:Southern Law, InvercargillPreston Russell Law, Invercargill