Needham v Police [2012] NZHC 2136 (23 August 2012)

Last Updated: 25 September 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-125 [2012] NZHC 2136

BETWEEN DAN DESMOND NEEDHAM Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 20 August 2012

Appearances: R Thomson for the Crown

Appellant in Person

Judgment: 23 August 2012

_{RESERVED JUDGMENT OF ELLIS J}

This judgment was delivered by me on 23 August 2012 at 10 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Crown Solicitors, PO Box 2118, Auckland 1140

Copy To: D Needham, 1133 New North Road, Mt Albert, Auckland

NEEDHAM V POLICE HC AK CRI-2012-404-125 [23 August 2012]

[1] Mr Needham appeals against a sentence of 10 months’ home detention

imposed on him by the District Court on 22 March 2012 in relation to:

(a) one count of cultivation of cannabis (Misuse of Drugs Act 1975, s 9(1));

(b) one count of possession of cannabis for supply (Misuse of Drugs Act

1975, s 6); and

(c) one count of selling cannabis (Misuse of Drugs Act 1975, s 6(1)(e)).

[2] Those offences carry maximum penalties of seven, eight and eight years’

imprisonment respectively.

[3] At the heart of Mr Needham’s appeal is his contention that the sentence was manifestly excessive because he should have been sentenced to intensive supervision instead of home detention.

Facts

[4] The following facts were accepted by Mr Needham.

[5] Mr Needham, lives with his co-defendant, Sharlene Peeni. In around April

2011, they discussed growing cannabis as an extra source of income and made a mutual decision to proceed. Mr Needham purchased the requisite materials and set up a cannabis growing operation in the garage of a house in Avondale, where Ms Peeni was the legal tenant.

[6] The operation comprised a fabric tent-like structure, which sealed off a section of the garage. Inside the tent were household fans to circulate air and an artificial light source. In around May or June 20, cannabis seedlings were planted in the tent. The plants were cared for mostly by Mr Needham, but with some assistance from Ms Peeni.

[7] Around the beginning of September, Mr Needham harvested several plants and dried them for sale. He sold tinnies for $20 and larger bags for $50. During September the couple made over $1,500 from the sales.

[8] On 27 September 2011, Police executed a search warrant at the address. They found 13 mature cannabis plants ready for harvesting and 324 grams of cannabis ready for sale. At the price Mr Needham was charging, this equated to a potential earning of $6,480. The cannabis plants not yet harvested had a potential yield of $3,900. The operation was assessed to have potential earnings of $24,000 per annum.

District Court Decision

[9] Mr Needham sought and obtained a sentencing indication. In it, Judge Ryan recorded her view that the offending was at the bottom of Terewi band 2 and that (taking into account the number of offences) a starting point of 28 months was appropriate.[1] After a 25 per cent discount for guilty pleas (22 months), a non- custodial sentence was possible. She said that if it transpired that Mr Needham was eligible, then she would consider a term of about 10 months’ home detention with post-release conditions of six to 12 months.

[10] Mr Needham then pleaded guilty. The pre-sentence report was favourable and on 22 March 2012, he was sentenced to 10 months’ home detention, with three months’ post-release conditions.

Discussion

[11] Although the sentence imposed by Judge Ryan accorded almost exactly with (in fact was slightly more lenient than) her sentencing indication, my sense is that Mr Needham has appealed that sentence because home detention has proved to be rather more difficult than he had anticipated. He has said it is like being imprisoned

_{in his own home and that is, of course, correct. He also noted that the pre-sentence}

report recommended a sentence of intensive supervision. He said that due to the incompetence of counsel, that option was not raised before Judge Ryan.

[12] Although I have no doubt that Mr Needham is finding his sentence trying, in my view there is simply no basis upon which I could conclude that it was manifestly excessive. There has been no error on Judge Ryan’s part (whether vitiating or not).

[13] It seems clear that the recommendation of supervision in the pre-sentence report was made because the report writer was concerned that the volatility in Mr Needham’s domestic relationship would create more pressure if a sentence of home detention were imposed. But in her sentencing notes, the Judge expressly noted with approval the steps that Mr Needham had been to address the issues between him and Ms Peeni. It seems that she therefore considered that those steps alleviated the concerns of the pre-sentence report writer and that the home detention option was therefore back on the table.

[14] The starting point of 28 months’ imprisonment was more than open to the Judge; Mr Needham’s offending falls squarely within band 2 of Terewi. The account taken by Judge Ryan of Mr Needham’s personal circumstances was, in the context of drug offending, generous.

[15] On the accepted facts, Mr Needham would have sold around 70 grams of cannabis in the month of September and the remaining cannabis found would have had a potential yield of over $10,000. That is in my view indicative of offending that is more serious than in cases such as Walters (no actual sales, cannabis found when dried would have been valued at about $2,000), where a less restrictive sentence was arrived at. I refer as well to the not dissimilar cases of Kihi, where a sentence of seven months’ home detention was imposed, and of Lord, where a sentence of

imprisonment was upheld.[2]

[16] Although I accept that a decision such as Walters indicates that a sentence of intensive supervision would have been open to the Judge, that does not mean that the

sentence that was imposed by her was clearly excessive. It is entirely appropriate to defer to Judge Ryan’s assessment as to the appropriateness or otherwise of home detention in the circumstances of Mr Needham’s case.[3]

[17] There is, as I have said, no basis upon which I could interfere with the sentence imposed in the District Court. The appeal is dismissed accordingly.

_{Rebecca Ellis J}

---

[1] R v Terewi [1999] 3 NZLR 62.

[2] R v Walters [2012] NZHC 1750; R v Kihi HC Auckland CRI-2009-057-1513, 2 March 2010; Lord v R [2012] NZCA 276.

[3] Polyzansky v R [2011] NZCA 4 at [13]; James v R [2010] NZCA 206 at [17]; R v D [2008] NZCA 254 at [66]