Caie v Police HC Auckland CRI-2011-404-332

[2011] NZHC 1956

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-332

AARON PAUL CAIE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         6 December 2011

Counsel:         N Thinn for Appellant

B Hamlin for Respondent

Judgment:      6 December 2011

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

CAIE V NEW ZEALAND POLICE HC AK CRI-2011-404-332 6 December 2011

[1]      Mr Caie pleaded guilty in the District Court to an indictably laid charge of cultivating cannabis.   The maximum penalty for that offence is seven years imprisonment.  The District Court elected to retain jurisdiction over Mr Caie and not to commit him to this Court for sentence.  As a result, the maximum penalty the sentencing Judge was entitled to impose upon him was one of two years imprisonment.

[2]      Judge Johns declined to sentence Mr Caie to home detention and sentenced him to 18 months imprisonment.[1]   Mr Caie now appeals against the Judge’s decision not to impose a sentence of home detention.

Background

[1] R v Caie DC Pukekohe CRI-2011-057-469, 15 August 2011

[3]      At the time of the offending, Mr Caie was living on a rural property near Onewhero.  The property is in a remote location and is surrounded by native bush, scrub and pine forests.

[4]      In December 2010, a police helicopter observed a cannabis plot near the house in which Mr Caie was then living.  Between February and 1 March 2011, the police installed covert cameras in order to conduct surveillance of the plot.   This showed Mr Caie visiting the plot on a regular basis to tend the cannabis plants growing within it.

[5]      On 2 March 2011, the police executed a search warrant in respect of Mr Caie’s address and the surrounding land.  When they searched the house, they found a number of firearms and a quantity of ammunition.  They also found a sectioned-off area in the house that had been used to grow cannabis plants from seedlings before being planted outdoors.  The room had been specially adapted for this purpose.  The police found heat lamps, power transformers and air ducting in various locations within the house. A water hose coming up through the floor was also attached to the inside wall of the room.

[6]     When the police searched the wider property, they found a reasonably sophisticated cannabis plot containing 43 cannabis plants.  All of the plants were in good condition, and varied in height from 1 to 1.7 metres.  The plot was surrounded by a six wire fence, which had been electrified via a 12 volt car battery.  Watering facilities had also been provided to the plot by means of a gravity fed water supply.

[7]      When the police confronted Mr Caie about what they had found, he frankly admitted that the plants were his.  He said that he had been growing the cannabis for his personal consumption.

The Judge’s decision

[8]      The Judge concluded that Mr Caie’s offending fell within the category of low level commercial cultivation identified in R v Terewi[2]She did not accept that such a quantity of plants and such a sophisticated growing environment could have been installed solely for the purpose of supplying Mr Caie’s own needs.   She therefore proceeded on the basis that the growing operation had an element of commerciality. The band of offending identified in Terewi for offending of this nature calls for a

starting point of between two and four years imprisonment.  The Judge selected a starting point of two  years imprisonment to reflect the culpability of all of the offending.

[2] R v Terewi [1999] 3 NZLR 62.

[9]      Mr Caie has a previous conviction for cultivating cannabis.  Ironically, this appears to have taken place within the same room that the police found growing paraphernalia on the present occasion.   The offending occurred some four years earlier, however, so the Judge elected not to apply an uplift to reflect it.

[10]     When considering mitigating factors, the Judge noted that the pre-sentence report could properly be described as “appalling”.   Mr Caie appears to have demonstrated no remorse for his offending, and was mainly concerned about the inconvenience that the present charges had caused to him.

[11]     The Judge took the view that the only mitigating factor that should be taken into account was Mr Caie’s guilty plea.  She applied a full 25 per cent discount to reflect that factor, thereby arriving at an end finite sentence of 18 months imprisonment.

[12]     The  Judge  then  turned  to  consider  whether  or  not  a  sentence  of  home detention  was  appropriate.    In  this  context,  she  concluded  that  there  was  little prospect of rehabilitation on Mr Caie’s part given his previous offending and the remarks contained in the pre-sentence report.   When those factors were combined with the sophistication of the growing operation, the Judge concluded that she had no alternative but to impose a sentence of imprisonment.

The appeal

[13]     On  appeal,  counsel  for  Mr  Caie  submits  that  the  Judge  ought  to  have sentenced Mr Caie to home detention, given the remorse that he has expressed since being sentenced and also given his current domestic circumstances.  These are that his partner has a very young child and suffers from significant medical problems. Counsel submits that the Judge ought to have taken these factors into account when considering whether or not to impose a sentence of home detention.

Decision

[14]     I do not accept this submission.   The sophistication of Mr Caie’s growing operation was such that a deterrent sentence was required.  The fact that Mr Caie has already been convicted on a previous occasion on a charge of cultivating cannabis in the same location also needed to be factored into the equation.  Finally, as the Judge noted, prospects of rehabilitation appear dim having regard to the comments made in the pre-sentence report.   When those factors are added together, the Judge’s conclusion that prison was the only available sentence, cannot be faulted.

[15]     The only issue that then remains is whether or not the Judge ought to have discounted the sentence further to reflect Mr Caie’s domestic circumstances.   The Judge did not refer to this factor in her sentencing remarks.   That is perhaps not

surprising, because the only reference to it is in the pre-sentence report and it is dealt with there in a relatively cursory fashion.

[16]     Counsel for Mr Caie has been granted leave to file an affidavit by Mr Caie’s partner attesting to the medical issues that she suffers from, and the fact that she is left with the sole care of a very young child.  One obviously has sympathy for Mr Caie’s partner.  She is not to blame for the predicament in which she has been left. Mr Caie has only himself to blame for what has occurred.  Nevertheless, I accept that Mr Caie’s offending has had a dramatic effect on his partner, and that his return to the household is anxiously awaited by them.

[17]     The authorities make it clear that personal circumstances such as these can only be given limited weight in cases involving serious drug offending, and this factor falls into that category.   The most that I can do is reduce the sentence of imprisonment slightly to reflect it so that I can ensure that it is taken into account.  I therefore  reduce  the  sentence  of  imprisonment  by two  months  to  leave  an  end sentence of 16 months imprisonment.

[18]     The existing sentence of 18 months imprisonment is accordingly quashed.  In its place I impose a sentence of 16 months imprisonment.

Lang J

Solicitors:

Crown Solicitor, Auckland
Counsel:

N Thinn LLM, Thinn & Co, Auckland