Hona v Police [2014] NZHC 1497 (30 June 2014)

Last Updated: 11 July 2014

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-32 [2014] NZHC 1497

BETWEEN	MAKETH WILLIAM GEORGE HONA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	30 June 2014
Counsel:	G R Tomlinson for the Appellant J A Heerdegen for the Respondent
Judgment:	30 June 2014

_{ORAL JUDGMENT OF BROWN J}

Solicitors: Crown Solicitors, Tauranga

Gowing & Co Lawyers Ltd, Whakatane

HONA v POLICE [2014] NZHC 1497 [30 June 2014]

[1] On the 28 May 2014 Judge O’Driscoll, sitting in the District Court at Whakatane, sentenced Mr Hona on one charge of cultivating cannabis, one charge of possession of a double barrel shotgun and one charge of possession of ammunition. The items were discovered on 2 April 2014 after police executed a search warrant at his property.

[2] Between December 2013 and April 2014 Mr Hona dug four holes in his property, planted cannabis plants in compost and surrounded them with wire mesh to stop them breaking. In addition to the plants the police also discovered a quantity of cannabis head material drying in a shed, the loaded double-barrel 12 gauge shotgun inside the front sliding door for the house and in the bedroom a belt full of 12 gauge ammunition.

[3] Mr Hona was arrested and in explanation he said that he had planted the cannabis plants in December and was going to dry and smoke them. He said he knew it was illegal to have a gun without a firearms licence but he had it for shooting ducks.

The District Court decision

[4] Judge O’Driscoll noted that the offender was 55 years old and appearing on

exactly the same charges in respect of which he had appeared before the Court in

2007. The probation report had recommended a sentence of community work and community detention or potentially home detention.

[5] The Judge recognised that the four cannabis plants placed Mr Hona in Band 1 of R v Terewi¹ which would not normally result in a custodial sentence as there was no commerciality and the plants were for personal use. However, the Judge said his main concern was the firearms charge. He noted that in R v Iti² Hansen J had said that the unlawful possession of firearms is rightly regarded as serious offending and

in R v Corner³ it was said that in the absence of special circumstances the possession of dangerous firearms will normally lead to a period of imprisonment.

[6] The Judge accepted that there was no evidence that Mr Hona intended to use the weapon and ammunition for illegal purposes but appeared to consider that he was bound to follow an approach in the cases he had cited, that simple possession of firearms would normally lead to the imposition of a prison sentence.

[7] The Judge said he was not too concerned with the cultivation charge but he needed to give a starting point of imprisonment for the firearms charge based on the need for deterrence. He noted the fact that Mr Hona had committed the same offending in 2007 as an aggravating factor. The Judge imposed a starting point of

12 months imprisonment with a three month deduction for guilty plea and imposed a concurrent sentence of three months for the cultivation and ammunition charges. This resulted in an end sentence of nine months imprisonment.

Counsel’s submissions

[8] The appellant appeals the sentence on the grounds it was manifestly excessive. In support of that appeal Mr Tomlinson submits that the appropriate sentence is one of home detention. It is argued that the Judge was wrong to equate this case with the scenario in R v Iti which involved multiple weapons and Molotov cocktails and the possession of weapons for the pursuit of terrorism.

[9] Hansen J in Iti noted that:⁴

This was not the sort of one-off incident which commonly confronts the

Court in sentencing for the unlawful possession of firearms.

[10] Mr Tomlinson notes that Iti and Corner dealt with the possession of firearms where there was a grave danger to society and he submits the focus ought to be on the purpose of the possession of the firearm and the intended unlawful use. In this case it seems to be accepted that the intended use was duck shooting, albeit without a permit.

[11] This illegal purpose is significantly less serious than the purpose of running military style camps as in Iti and the Judge was also incorrect, it is submitted, to equate the firearm in Mr Hona’s possession to a dangerous firearm. It was not a semi-automatic weapon or a sawn-off shotgun and it is submitted the Judge failed to take into account cases such as Lysaght v R⁵ and Everleigh v Police⁶ where unlawful possession of the firearms and cannabis resulted in end sentences of home detention.

[12] The respondent’s submissions emphasise first of all that there is no tariff decision in respect of this type of firearms offending but the Court has previously addressed how the type of offending is to be dealt with.

[13] Ms Heerdegen submits that Iti and Corner make it clear that the possession of a firearm itself, without lawful, proper or sufficient purpose, is regarded as serious offending given the high level of risk involved. It is submitted for the Crown that the purpose of the unlawful possession is a relevant consideration to a degree when determining culpability but the intended purpose cannot be the only consideration. It is submitted the circumstances in which the offending occurred must also be considered and this would involve taking into consideration the purpose of the unlawful possession and the fact of possession itself.

[14] Ms Heerdegen submits there was no assessment error and the Court was within range to find that the starting point was one of imprisonment based on the relevant authorities.

Approach to appeal

[15] Section 250 of the Criminal Procedure Act states that the Court must allow the appeal if satisfied that:

(a) For any reason there is an error in the sentence imposed on conviction; and

(b) A different sentence should be imposed.

In any other case the Court must dismiss the appeal. The section confirms the approach taken by courts under the Summary Proceedings Act. Section 250 confirms the approach taken, for example, in Yorsten v Police where the Court said:⁷

(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle”.

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal

Court should re-exercise the sentencing discretion.

[16] Further, the High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

The substantive law

[17] The standard of appeal when considering whether a sentence of home detention should have been imposed is as stated in James v R.⁸ The Court of Appeal there said:

We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether Judge Tuohy erred in exercising a sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong?

[18] In relation to cannabis offending the Court of Appeal said in R v Terewi:⁹

Category 1 consists of the growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence. Where there have been supplies to others on a non-commercial basis the monetary penalty will be greater and in more serious cases or for persistent offending a term of periodic detention or even a short prison term may be merited. (It is to be noted in this connection that there is no separate offence in relation to a Class C drug of supplying or possession for supply, as opposed to selling or offering for sale or possession for sale (s 6(1)(e) and (f).)

⁷ _{Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]-[15].}

⁸ James v R (2010) 24 NZTC 24,271 (CA) at [17].

Category 2 encompasses small-scale cultivation of cannabis plants for a commercial purpose, ie with the object of deriving profit. The starting point for sentencing is generally between two and four years but where sales are infrequent and of very limited extent a lower starting point may be justified.

Category 3 is the most serious class of such offending. It involves large- scale commercial growing, usually with a considerable degree of sophistication and organisation. The starting point will generally be four years or more.

[19] This offending certainly fell within band 1 of Terewi as there were only four plants for personal use and a quantity of dried material. This is a case where the courts have traditionally considered a non-custodial sentence to be appropriate.

[20] Turning to consider cases where there have been weapons as well, I note in

Lysaght Wylie J upheld a sentence of home detention where the offender had a

.22 calibre rifle, various rounds of ammunition and 19 mature cannabis plants which could have produced an estimated yield of between $8,300 and $52,000. In Everleigh the offender had been sentenced to four months imprisonment for 500 grams of cannabis and an unlicensed .303 rifle. Keane J upheld the appeal and replaced it with a sentence of home detention.

[21] In McNamara v Police¹⁰ the offender was sentenced for category 1 offending under Terewi. Nine plants had been found at the offender’s property alongside a gun and significant ammunition and cannabis oil. In the District Court cumulative sentences of nine months for the unlawful possession of a firearm and 12 months for the cultivation of cannabis were given. The offender appealed the sentence imposed for the cannabis charge. The Judge emphasised that offending within category 1 cases will almost invariably be dealt with by a fine or other non-custodial sentence. In respect of the offending before him Clifford J said:

Here, it was accepted the offending was not of a commercial nature. Moreover a relatively small number of plants was involved and the set up was not especially sophisticated. On that basis it seems to be unlikely that a term of imprisonment would have been called for if this offending had been considered on a stand-alone basis, even acknowledging the aggravating features present.

¹⁰ McNamara v Police HC Palmerston North, CRI-2009-454-12, 1 April 2009.

[22] However it was held that a starting point of six months would be appropriate with an uplift of three months for aggravating features namely children in the house, previous offending and the presence of cannabis oil.

[23] I note also the decision in R v Miller,¹¹ a decision of Lang J, where an offender was charged with cultivation of cannabis and unlawful possession of a firearm and ammunition. A starting point of 16 months imprisonment was taken for the cannabis charges and a two month uplift for the firearms charges.

[24] In R v Brammell¹² a decision of Woolford J, the offender was sentenced for cultivation and sale of cannabis and unlawful possession of a firearm. The cultivation related to 183 plants. The starting point for the cultivation was nine months imprisonment which was reduced to home detention of nine months for mitigating factors and a cumulative sentence of 250 hours of community work was given for the firearm offence.

[25] In my view these cases that I have referred to illustrate that traditionally cannabis offending is taken as the lead offence and the firearms offending is seen as the less significant offending. In this case the cannabis offending was very low level and would not have justified a custodial sentence. I agree with the appellant’s submission that Iti and Corner are not applicable in the present case. Corner involved the possession of firearms in order for the offenders to take the law into their own hands vigilante style; the weapon was a sawn-off shotgun; there was ammunition hidden all over the premises. In Iti the guns were used for quasi- terrorist militia training camps.

[26] I consider that the Judge here erred in treating those decisions as applicable in this case and in proceeding on the basis that the unlawful possession of a firearm in this instance, which it was accepted was for the purposes of duck shooting, warranted a custodial sentence. That said, however, it is an aggravating feature that the loaded weapon was readily available in the house for pretty well any visitor to

_{have access to.}

¹¹ _{R v Miller (2012) CRNZ 830 (HC).}

¹² R v Brammall [2012] NZHC 3374.

[27] As Keane J noted in Everleigh,¹³ a sentence of imprisonment, as s 16 of the Sentencing Act establishes, is a “measure of last resort”. In my view the sentence imposed here was disproportionate to the offending. I consider the appropriate sentence would have been a sentence of six months home detention.

Result

[28] Consequently, the appeal against sentence is allowed. The sentences of nine months imprisonment and the concurrent sentences of three months imprisonment are quashed. Taking into account the fact that the appellant has already served one month in prison, the sentence to be substituted will be four months home detention which will be applied in respect of each of the three charges. The order for destruction of the firearm will stand.

[29] The address for home detention is to be the appellant’s residential address as stated in the Department of Corrections report. The usual conditions of home

_{detention will apply.}

_{Brown J}

¹³ Everleigh v Police, above n 6, citing R v Rawiri [2011] NZCA 244; (2011) 25 CRNZ 254.