Howard v Police [2017] NZHC 2613 (25 October 2017)

Last Updated: 16 November 2017

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGAREI TERENGA PARAOA ROHE

CRI-2017-488-000021 [2017] NZHC 2613

BETWEEN	DAVID ALLAN HOWARD Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	24 October 2017
Counsel:	TD Clee for Appellant SJ Barnaart for Respondent
Judgment:	25 October 2017

_{JUDGMENT OF DOWNS J}

This judgment was delivered by me on Wednesday, 25 October 2017 at 4 pm.

Registrar/Deputy Registrar

Solicitors/Counsel: T Clee, Auckland.

Crown Solicitor, Whangarei.

HOWARD v POLICE [2017] NZHC 2613 [25 October 2017]

[1] This is a conviction and sentence appeal.

[2] Mr David Howard pleaded guilty to cultivating cannabis and two charges of possessing a military style semi-automatic firearm. Judge K B de Ridder sentenced Mr Howard to a term of 10 months’ home detention.¹ Mr Howard contends the Judge erred in concluding the cannabis offending was at least in part commercial in nature— there was a disputed facts hearing—and in not discharging Mr Howard without conviction on the firearms charges.

[3] The offending was detected by warrantless search on 25 November 2015. Police found 127 cannabis plants growing at Mr Howard’s home. The plants were in three different areas.

[4] Fifty-one plants were in a bedroom modified for cultivating cannabis. The room was lined with silver paper and vented. These plants were growing under lights.

[5] Twenty-nine plants were in a grow-tent in an ensuite bathroom in the shower box. These plants included four large “mother” plants, from which cuttings appeared to have been taken. The grow-tent was vented through the ceiling and connected to mains water supply. These plants were also growing under lights.

[6] The remaining 23 plants were in a greenhouse.

[7] Scales and packaging consistent with the supply of cannabis were also found at the home. A detective with experience in relation to controlled drugs harvested

60 ounces of cannabis from the plants. He testified if those in the main grow room had been cultivated a little longer (by which he meant two or three weeks), yield would have doubled. The detective also said an ounce of cannabis was worth $300 (in March

2015).

[8] The two firearms—a Saiga semi-automatic 12 gauge shotgun, and a Norinco semi-automatic rifle—were in an unlocked gun rack in the main bedroom. The latter

was loaded. Magazines for each were found in the same room. Mr Howard had purchased the firearms lawfully earlier that year. But because one was loaded, and magazines for both were found close by, the weapons were military style semi-automatic firearms for which Mr Howard had no licence.

[9] Judge de Ridder appeared to accept some of the cannabis was for Mr Howard’s personal use and that of his partner; Mr Howard said as much to the Police but did not testify at the disputed facts hearing. However, the Judge concluded the totality of evidence permitted an inference the cannabis was otherwise being cultivated for a commercial purpose.²

The issue simply comes down to one of whether or not, in all the circumstances, it is a valid inference to draw that this was a commercial operation. Given the ongoing nature of the operation, the fact that it was set up to supply cannabis on a continuous basis, the amount of cannabis head both found and potentially to be produced, all in my view, point to a clear and logical inference that this was a commercial operation. That of course, is not inconsistent with personal use as well, but the predominant purpose was a commercial one. To a certain extent that is supported by the fact that the defendant was a sickness beneficiary which leads to a reasonable inference that this was an attempt to supplement his limited income.

[10] On behalf of Mr Howard, Mr Clee contends this inference was not available to the criminal standard. He invites attention to the absence of direct evidence on the issue of commerciality, Mr Howard’s heavy and longstanding consumption of cannabis, to the fact items such as scales are found in most homes, and to the absence of any evidence concerning Mr Howard’s financial circumstances. Mr Clee contends an inference of commerciality was “plainly wrong”, for, there was no evidence Mr Howard intended to sell any of the cannabis found by Police.

[11] I disagree. It was open to Judge de Ridder to infer commerciality for the reasons the Judge gave. The number of plants, yield, potential yield, price, ongoing labour involved in the operation, and presence of scales and plastic bags combine to imply commerciality—or at least an intention to sell some of the cannabis. The operation discovered by Police was hardly small. It was open to the Judge to infer the cultivated plants—in total 127—could produce far more cannabis than Mr Howard

and his partner could consume. The logical inference in these circumstances was that

Mr Howard intended commercial supply in relation to the balance.

[12] The sentence appeal is dismissed.

[13] The conviction appeal rests on the proposition the direct and indirect consequences of conviction in relation to the firearms offences were out of all proportion to the gravity of that offending.

[14] Again, the contrary conclusion was well open to the Judge. Courts have long expressed concern about Arms Act offending in conjunction with offending contrary to the Misuse of Drugs Act. That principle was engaged here. And, the firearms in question were military-style weapons. Moreover, Mr Clee responsibly accepted he could not point to anything more than “general” consequences vis-à-vis conviction; for example, the removal of Mr Howard’s firearms licence. That, however, is a natural and ordinary consequence of offending of this kind. And in any event, a matter for the Police rather than the Courts. In short, no disproportionality emerges as between the gravity of the offending and the consequences of conviction.

[15] The conviction appeal is dismissed.

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Downs J