Hedges v Police [2014] NZHC 3240 (16 December 2014)

Last Updated: 4 February 2015

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2014-463-84 [2014] NZHC 3240

BETWEEN	SHANE TIMOTHY HEDGES Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	16 December 2014 (Heard at Rotorua)
Appearances:	R Nabney for Appellant J Heerdegen for Respondent
Judgment:	16 December 2014

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

HEDGES v NEW ZEALAND POLICE [2014] NZHC 3240 [16 December 2014]

[1] Mr Hedges pleaded guilty in the District Court to two charges of being in possession of cannabis, one charge of possession of cannabis seeds, one charge of receiving, two charges of selling cannabis, one charge of being in possession of cannabis for supply, one charge of being in unlawful possession of a firearm and one charge of being in possession of ammunition.

[2] On 29 October 2014, Judge Geoghegan sentenced Mr Hedges to an effective sentence of two years two months imprisonment.¹ Mr Hedges appeals against sentence on the basis that the Judge erred in the manner in which he structured the sentence. He contends that this led to an end sentence that was manifestly excessive.

Background

[3] The charges were laid as a result of two incidents that occurred six days apart. On 7 August 2014, Mr Hedges was a passenger in a motor vehicle at Papamoa Beach. The police searched the vehicle and found a metal tin in the glovebox. This contained three grams of cannabis. Mr Hedges told the police that the cannabis belonged to him, and that he used it on a regular basis.

[4] Six days later, on 13 August 2014, the police executed a search warrant at Mr Hedges’ address. When they searched the address, they found a number of items consistent with the property being used as a base from which cannabis was being sold on a regular basis. Located next to the oven on the floor, the police found a plastic container that contained a plastic bag with cannabis head material inside. This weighed 23 grams. Also inside the plastic bag were a number of cut-down square pieces of tinfoil and a small set of digital scales. The police found a piece of paper in a kitchen drawer that was consistent with being a tick list. In another drawer in the lounge area, the police found a bag of cannabis cabbage material that weighed 36 grams. The police also found 308 cannabis seeds in a wooden box on

_{top of the set of drawers in the lounge area.}

¹ New Zealand Police v Hedges DC Tauranga CRI-2014-070-002905, 29 October 2014.

[5] The police also found a blue bag in the lounge area that contained a .22 calibre rifle. The barrel of this weapon had been sawn off. Inside another compartment in the bag was a box of .22 ammunition containing 15 rounds. In another compartment in the bag the police found a magazine for the rifle loaded with five rounds.

[6] Mr Hedges told the police he had been selling and supplying cannabis but only to known associates. He said that he usually purchased about one ounce of cannabis at a time, and that he would break this down into tinnies or bullets for sale to friends and associates. He said that he was in possession of the firearm and ammunition because he wanted to protect himself from other persons who may enter his property.

[7] The police also found a laptop computer on top of a set of drawers in the lounge area. The police discovered that the laptop was stolen. Mr Hedges told the police he had been owed money by an associate for an outstanding debt and he had received the laptop from that associate to settle the debt. He said he realised when he checked the contents of the computer that it was stolen.

[8] In explanation for his actions Mr Hedges said that he was facing financial difficulties, and that he needed to gain extra income through the sale of cannabis.

Structure of the sentence

[9] The Judge acknowledged that the cannabis offending was governed by the guideline judgment of the Court of Appeal in R v Terewi.² In cases of commercial dealing in cannabis at a lower level, the starting point will be between two and four years imprisonment. The Judge took a starting point of two years imprisonment to reflect all the cannabis-related charges. He then added an uplift of 12 months to reflect the fact that Mr Hedges was in possession of the firearm and ammunition.

[10] The Judge applied a discount of 25 per cent, or nine months, to reflect Mr

_{Hedges’ early guilty pleas. He then applied a further discount of one month to}

² R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62.

reflect the fact that Mr Hedges had demonstrated remorse and had no relevant previous convictions. This produced the end sentence of two years two months imprisonment.

Grounds of appeal

[11] Mrs Nabney submits that the Judge adopted a starting point that was too high in related to the cannabis-related charges. She also contends that the uplift the Judge applied in respect of the firearm and ammunition was too high. She also argues that the Judge applied an insufficient discount in relation to the mitigating factors of remorse and previous good character.

Decision

[12] I do not consider it can be seriously argued that the starting point the Judge adopted in relation to the cannabis charges was too high. The Judge was sentencing Mr Hedges for being in possession of cannabis on two separate occasions. The items that the police found at Mr Hedges’ address bore all of the hallmarks of a retail trader in cannabis, albeit at the lower end. Although Terewi is authority for the proposition that the Court is entitled to select a starting point below two years when sales are infrequent, it is not authority for the proposition that that must always be the case. Given the fact that Mr Hedges was found in possession of cannabis on two separate occasions and was also found in possession of cannabis seeds, the Judge was entitled to select a starting point of two years imprisonment. Indeed, it can be argued that an appropriate starting point may well have been slightly higher.

[13] The Judge acknowledged that a starting point in relation to the firearms charges would generally be between 18 months and two years imprisonment. He noted that the Court of Appeal has held that the possession of firearms by persons involved in drug dealing is a significant aggravating factor.³ No issue can be taken with those statements of principle.

[14] In the present case there was a clear connection between Mr Hedge’s drug dealing activities and the presence of the firearm, because he effectively told the

³ Faifua v R [2011] NZCA 152.

police he had the firearm and ammunition for his own protection. That must mean the firearm and ammunition were closely related to his drug dealing activities. In addition, there can be no innocent purpose for a sawn-off firearm of the type that was found in Mr Hedges’ possession. I acknowledge that another Judge may have applied an uplift of less than 12 months. I cannot say, however, that an uplift at that level was outside the available range.

[15] The only issue that has given me cause for concern is the extent to which the Judge applied a discount to reflect Mr Hedge’s remorse and previous good character. It is unlikely, however, that a discount of more than three months could be justified in relation to these matters. If the traditional sentencing Taueki approach is adopted and a discount of three months was allowed to reflect remorse and previous good character, this would reduce the starting point to two years nine months

imprisonment.⁴ A 25 per cent discount to reflect guilty pleas would then result in a

further reduction of eight months. This would produce an end sentence of two years one month imprisonment.

[16] Given the fact that the sentence the Judge imposed was just one month greater than this, I cannot say that the end sentence was wrong or manifestly excessive.

Result

_{[17] It follows that the appeal against sentence must be dismissed.}

Lang J

Solicitors:

Crown Solicitor, Rotorua

⁴ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372.