Emery v Police

[2018] NZHC 91

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-419-78

[2018] NZHC 91

BETWEEN

GEOFFREY NGAMANE EMERY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	7 February 2018
Counsel:	M H McIvor for Appellant M Dillon for Respondent
Judgment:	9 February 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 9 February 2018 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Crown Solicitors, Hamilton

EMERY v POLICE [2018] NZHC 91 [9 February 2018]

[1]Mr Emery was convicted on the following charges:

(a)Cultivating cannabis (x2);

(b)Possessing methamphetamine (x2);

(c)Possession of a firearm;

(d)Possession of ammunition;

(e)Driving while suspended; and

(f)Possession of utensils for methamphetamine.

[2]        The combined sentence for these matters was 30 months’ imprisonment. Mr Emery appeals the sentence. He does not challenge the starting point for the lead cultivation charge of two years. Rather, he says that the Judge failed to have regard to the totality principle and the various uplifts for the other offending were manifestly excessive.

Background

[3]        Two search warrants were executed at Mr Emery’s property. When the first warrant was executed on 29 August 2016, a cultivation setup was found in a bedroom inside the property. It comprised three mature cannabis plants and 37 cannabis seedlings growing in dirt pots. Four glass pipes used for the consumption of methamphetamine and various point bags containing methamphetamine residue were also found.

[4]        When the second search warrant was executed on 24 September 2016, 23 small cannabis plants were located inside a cupboard. Small dead cannabis plants were also found, together with .0139 grams of methamphetamine and 0.44 grams of cannabis. A

.22 calibre pistol firearm and ammunition of various types, were also found at the premises.

[5]        Mr Emery drove having previously been suspended for incurring the requisite number of demerit points for speeding. His last driving offence is recorded as having occurred in 1996.

[6]        Judge Menzies sentenced Mr Emery to 30 months’ imprisonment, commencing with a start point on the lead cultivation offending of 24 months. He uplifted the start point by 9 months for the firearms offending, 2 months for the methamphetamine offending, 2 months for driving while suspended and a further 2 months for unpaid fines. He applied a discount of about 23% for early guilty plea.

Jurisdiction

[7]        Section 250(2) of the Criminal Procedure Act 2011 states that I may allow an appeal if for any reason there was an error in sentence imposed on conviction and a different sentence should be imposed. A sentence that is manifestly excessive may be set aside pursuant to this jurisdiction.1

Assessment

[8]I can deal with the appeal summarily. I accept the appellant’s submission that:

(a)The Judge does not expressly refer to the totality principle;

(b)The uplifts for driving while suspended (2 months) and for unpaid fines (2 months) were excessive;

(c)The cannabis and methamphetamine drug offending should have been dealt with together.

[9]        But I do not accept the end sentence was manifestly excessive or otherwise wrong in the result. First, a start point of 24-30 months for the cultivation and methamphetamine charges was plainly available given the tariff authority – Terewi.2

1      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [31]-[33].

2      R v Terewi [1999] NZCA 92, [1999] 3 NZLR 62 at [4]. See also Crutchley v R [2015] NZCA 473 at [18]. I note that the Court in R v Smyth [2017] NZCA 530 at [17] accepted that Terewi “may

Significantly there were two sets of cultivation offending involving in combination 60 plants and seedlings. The second set occurred while Mr Emery was facing charges on the first set of offending. It was foolishly brazen. The combination of offending therefore warranted a higher start point than 2 years, being the bottom point in the band for a single set of offending of the present scale.

[10]      Second, the firearms conviction could have received an uplift in the range of 12-18 months.3 This was not an everyday hunting rifle. It was a homemade pistol found in his jacket pocket. There does not appear to be any mitigating circumstances that might explain the presence of the firearm.4 The logical inference is that it was associated with the drug offending.

[11]      Third, there is no evidence of remorse – on the contrary the PAC report suggests Mr Emery has minimised his offending.

[12]      Fourth, in combination, the drug offending and the firearms offending justified an end sentence after a 25% discount for guilty plea in the range of 27 – 36 months. Applying a totality approach, an end sentence in the order of 30 months was not manifestly excessive.

[13]       Accordingly, while the sentence was imposed by a different route, it was not wrong.

[14]The appeal is dismissed.

require reconsideration given changing social attitudes” but it would be inappropriate to reconsider the Terewi bands in this case.

3      Mills v R [2016] NZCA 245 at [18]-[22].

4      Mr Emery’s explanation recorded in his PAC report was that the .22 pistol was payment in kind for work done. He accepted however that given his prior convictions, he was not entitled to carry a firearm regardless.