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R v Presser [2020] NZDC 10236

Published 14 December 2021

Discharge without conviction — cultivation of cannabis — medicinal cannabis — cannabis referendum — Misuse of Drugs (Medicinal Cannabis) Regulations 2019, rr 22, 23, 29, 31, 32, 35 & 40 — Misuse of Drugs Act 1975, ss 2(1) & 14 — Misuse of Drugs (Medicinal Cannabis) Amendment Act 2018 — Sentencing Act 2002, ss 11, 106 & 107 — Criminal Records (Clean Slate) Act 2004, s 7 — R v Hughes [2008] NZCA 546, [2009] 3 NZLR 223 — Z (CA447/2012) v R 2012 [NZCA] 599 — Maraj v Police [2016] NZHC 279 — Graves v Police HC Rotorua CRI-2010-463-57, 28 February 2011 — Nash v Police HC Wellington CRI 2009-485-000007, 22 May 2009 — Vela v R [2010] NZCA 440 — Roberts v Police (1989) 5 CRNZ 34 — Ministry of Health ‘Guideline on Regulation of Medicinal Cannabis in New Zealand – Part 4 Guidance for Applicants for a Medicinal Cannabis Licence’ (April 2020) — Journal of the Royal Foundation of New Zealand, Volume 50, 2020 – ‘Patterns of recreational cannabis use in Aotearoa-New Zealand and their consequences: evidence to inform voters in the 2020 referendum.’ Police had gone to the defendant's home to investigate allegations that he had been selling cannabis to young people. These allegations proved to be unfounded. However, the defendant readily admitted to growing cannabis and showed the police his growing operation, which led them to press charges against him. The defendant pleaded guilty and applied for a discharge without conviction. He explained that if cannabis were to be legalised via the upcoming cannabis referendum he intended to apply for a licence under the Misuse of Drugs (Medicinal Cannabis) Regulations. A conviction under the Misuse of Drugs Act would threaten his ability to gain such a licence. The Court observed that the Regulations provided no clear guidance as to who constitutes a fit and proper person to hold a licence. Further, the defendant had vested significant time and effort into learning about medicinal cannabis in pursuit of a licence. The Court considered that the offending was of low culpability, and that the consequences of a conviction would be all out of proportion to the gravity of the offending. The application for a discharge without conviction was granted, although the Court ordered the defendant to pay costs of $130. Judgment date: 19 August 2020.