Exelby v Police HC Hamilton CRI 2011-419-82

[2011] NZHC 1517

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2011-419-82

BETWEEN  MICHAEL EDWARD EXELBY Appellant

ANDTHE POLICE Respondent

Hearing:         20 October 2011

Appearances: M B J Curran for appellant

J O'Sullivan for respondent

Judgment:      3 November 2011

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 4 pm on Thursday 3 November 2011

Solicitors:

M Curran,  [email protected]

Crown Solicitor Hamilton [email protected]

EXELBY V THE POLICE HC HAM CRI 2011-419-82 3 November 2011

[1]      This is an appeal by Mr Exelby against a sentence of imprisonment imposed upon him in the Hamilton District Court on 24 August 2011 for class B and C drug offending.  Judge Spiller imposed a sentence of 14 months imprisonment on charges of cannabis  cultivation,  of  production  of  cannabis  oil,  and  a sentence of  seven months imprisonment in respect of a charge of possession of equipment for the purpose of cultivating cannabis. These sentences were to be served concurrently.

[2]      For the appellant, Mr Curran submits in broad terms that the sentence was manifestly excessive, and that a non-custodial penalty ought to have been imposed.

Factual background

[3]      Shortly after midnight on 7 October 2010, the police were called to the appellant’s home in Hamilton by a member of the public concerned about a domestic dispute at the address.  The appellant was present, along with his partner and their infant child.   Upon arrival, the police detected  a strong smell of cannabis, and invoked the provisions of s 18(2) of the Misuse of Drugs Act 1975.

[4]      A search  of the house  resulted  in  the  police  finding  an  indoor  cannabis cultivation operation, centred on one of the bedrooms.  Growing under lights were five mature cannabis plants, nine adolescent plants, and a further 26 cannabis seedlings.  All were in healthy condition;  they had been recently watered and cared for.  Also in the room were numerous items of specialist equipment used to cultivate cannabis  including  light  shades  with  high  pressure  sodium  light  bulbs,  lighting timers, ballasts, fans, reflective sheeting, watering bottles, and so forth.   Items of plant food were present. There were also several large bags of low quality cannabis leaf and stalk, weighing in total 1,576 grams.

[5]      Further cannabis plant material was found mixed with tobacco;  a snaplock bag containing six grams of cannabis bud or head was located in the lounge.  Nearby was a set of electronic scales and new snaplock bags, commonly used for the storage of cannabis and other drug-related material.  Also in the lounge was a baby’s bottle,

which was full of cannabis plant material.  It had a mesh cover over one end, and a hole cut in the other to enable the introduction of butane gas.  The bottle had been used by Mr Exelby to produce cannabis oil.  Other paraphernalia related to the use of cannabis was found in the lounge.

[6]      When spoken to by the police, Mr Exelby admitted growing cannabis and producing cannabis oil.  He said that he had kept the old cannabis leaf to produce cannabis oil, which he used for his own purposes.

[7]      For  some  time  the  Crown  maintained  a  further  charge  of  possession  of cannabis for supply.  Ultimately that charge was dropped.  But there was a further disagreement as to the extent of commerciality inherent in the charges for which Mr Exelby was  ultimately sentenced.    In  the  end,  the  Crown  accepted  that  the appellant should be dealt with on the footing that all of the cannabis was produced for his personal consumption.

Personal background

[8]      The appellant is 27 years old.  His former de facto relationship has come to an end, but he maintains frequent contact with his former partner and his young daughter.  Mr Exelby has considerable experience as a stone mason, having worked almost exclusively in that area for some years.  At the time of this offending, he was employed as a foreman by an established stone masonry company.

[9]      On the debit side is his earlier offending.  In 2002 he was fined in respect of two charges of possession of cannabis.   In 2009, he received a community-based sentence for cultivation of cannabis and possession of utensils.  At that time, some eight cannabis plants were located by the police.

[10]     The present offending occurred less than a year after the appellant completed a sentence of supervision for the 2009 offending.   There has been something of a history of  breach  of  sentences  imposed  by  the  court  for  other  offending.    The appellant also has convictions for a variety of other offences, consisting mostly of motoring and public disorder charges.

District Court sentencing

[11]     Judge Spiller’s sentencing remarks were brief.  He commenced by noting the offences and Mr Exelby’s previous conviction list.   He indicated he had read the Probation Service report.   He recorded the submission of Crown counsel that a starting point of two  years imprisonment ought to be selected, and Mr Curran’s submission that a community-based sentence ought to be imposed.  He then referred to sentencing purposes and principles, and concluded:

[3]       As a result of this exercise Mr Exelby I have to arrive at a starting point, taking your offending altogether, of 18 months imprisonment.  Then I have to look at features related to you personally, aggravating features and mitigating features.  An aggravating feature is the number and relevance of your previous convictions and the two sets of convictions that I cannot overlook, those relating to drug-related offending in 2002 and more recently

2009, your convictions for those.   On the other hand, you have pleaded guilty so you are entitled to a discount in relation to your offending.

[4]       As a result of this exercise Mr Exelby I impose a prison sentence of

14 months and then will follow release conditions for six months.  First of all, that you attend an alcohol/drug assessment and if assessed as suitable, attend and complete counselling programmes to the satisfaction of the probation officer and service provider.   Secondly, to attend counselling or programmes to address mental health issues to the satisfaction of the probation officer and service provider.

[5]       For  the  benefit  of  the  lawyers  in  front  of  me  I need  to  outline specifically what sentences are imposed for what offence, so we will go through them.   Cultivation of cannabis:   a sentence of 14 months imprisonment, together with the six months post-release conditions. Production of cannabis oil:   14 months concurrent.   Possession of drug- related equipment:  seven months imprisonment concurrent together with an order for forfeiture and destruction of drug-related materials.

Discussion

[12]     It is common ground that sentencing for these offences is governed by the tariff authority of R v Terewi.[1]    It is also agreed that the case falls within band 1 of the Terewi classification;  that is, it falls within the class of case which customarily involves the growing of a small number of cannabis plants for personal use by the offender, without any sale to another party occurring or being intended.  Offending in that category was said by the Court of Appeal in Terewi to be dealt with almost

invariably by a fine or other non-custodial sentence, although a short prison term may be merited where there have been supplies to others on a non-commercial basis, or where offending has been persistent.

[1] R v Terewi [1999] 3 NZLR 62 (CA).

[13]     Terewi  applies  of  course  to  cannabis  cultivation.    Here,  Mr Exelby  was convicted also of producing cannabis oil, a charge regarded by the Legislature as much more serious than cultivation.   It carries a maximum penalty of 14 years imprisonment.

[14]     As was said by Randerson J in Duke v Police:[2]

The Legislature has made it clear that the production of cannabis oil is to be treated more seriously than, for example, possession of cannabis.   That is indicated by cannabis oil being specified as a class B controlled drug.

[2] Duke v Police HC Tauranga AP33/99, 16 December 1999 at [13].

[15]     In that case the police had found 2.2 kg of cannabis leaf and 13 grams of cannabis oil.   Randerson J declined to interfere with the sentence of 15 months imprisonment imposed in the District Court on a charge of producing cannabis oil.

[16]     Mr Curran  submits  that  this  offending  should  have  been  marked  with  a community-based sentence, such as community work and supervision.   On the strength of Terewi he submits that a starting point of imprisonment for category 1 offending is  reserved  for the worst offenders within that group;   serious repeat offenders, or those found to be involved in significant non-commercial cultivation and supply of cannabis to others.

[17]     In assessing that submission, I am hampered somewhat in that Judge Spiller gave no reasons for his decision to reject a defence submission in the District Court that  imprisonment  was  not  warranted.    But  in  any event,  I am  satisfied  that  a sentence of imprisonment was within the range of penalties properly available to the Judge.  I reach that view for two principal reasons.  First, this was not Mr Exelby’s first offence.   He had  already received a community-based sentence for similar offending, and indeed, a sentence of supervision had recently terminated at the time of his apprehension for the present offences.  Moreover, the scale of this offending was much greater than before, in that some 40 plants and a great deal of cannabis

material was located at his house.  Mr Exelby appeared to have learned little from the leniency with which he was treated on that earlier (but recent) occasion.

[18]     Second, it is necessary to take into account here the conviction for production of cannabis oil, regarded by the Legislature as more serious than the cultivation of cannabis, and as therefore requiring separate attention for sentencing purposes. Although the Judge engaged in no analysis at all, it is to be assumed that he took into account this important additional offending, which serves to distinguish this case from the ordinary run of cases which properly fall within band 1 of Terewi.

[19]     I  consider  therefore  that  the  Judge  was  entitled  to  impose  a  custodial sentence.  In reaching that conclusion I do not overlook Mr Curran’s submission that Mr Exelby’s earlier non-custodial sentence was not accompanied by the imposition of special conditions aimed at involving him in rehabilitative courses and the like. While there may have been some benefit to the appellant had rather more been done on the earlier occasion, it cannot be said that a drug offender in the appellant’s position is entitled, as of right, to involvement in counselling and rehabilitative programmes  as  a  precondition  to  exposure  to  imprisonment  for  subsequent offending.

[20]     I turn to the question of whether the sentence of 14 months imprisonment imposed by the Judge was manifestly excessive.  Given the need to take into account the cannabis oil offence, the starting point of 18 months selected by the Judge was, in my opinion, well within the available range.

[21]     Mr Curran provided the court with a number of recent sentencing authorities. None was particularly close to the facts of this case, but R v Harris,[3]  is of some assistance.    There,  the  appellant  had  pleaded  guilty to  cultivating  cannabis  and permitting premises to be used for smoking cannabis.   In the High Court, he was sentenced to two years two months imprisonment for cultivating cannabis, with a concurrent sentence of nine months for permitting premises to be used.  In that case, the appellant had separated a bedroom into three compartments in which he was growing a total of 56 cannabis plants, together with a number of seedlings.   The

police found 788 grams of cannabis leaf and 138 grams of cannabis head.   The operation involved a pump system, flowing water, temperature controls, fans and growing lights.  The appellant told the police that he smoked cannabis for medical reasons in order to alleviate pain from a medical condition.  He also admitted that he had permitted his garage to be used as a communal area for smoking cannabis.  He was 59 years of age and had two previous convictions.  In 1991 he was convicted of possession of cannabis seeds and in 2007 he was convicted of unlawful possession of a firearm.  The probation officer was concerned that the appellant had minimised his offending and blamed it all on his medical problems.

[3] R v Harris [2009] NZCA 471.

[22]     The Court of Appeal considered that it was open to the Judge to infer that there was a commercial element to the offending, even though there was no direct evidence of it.   The Court upheld the Judge’s starting point of three years three months, but took account of recent evidence of the appellant’s very poor health, necessitating the amputation of a leg one week after sentencing.  A further discount of six months was allowed from the starting point.  In the result, the sentence of two years two months imprisonment was quashed and replaced by a sentence of one year ten months.  Home detention was considered to be inappropriate.

[23]     That case is of some, but limited, assistance. There, the Court considered that it was entitled to infer a degree of commerciality.   Here, counsel for the Crown ultimately accepted that the appellant ought to be sentenced on the footing that all the cannabis was for his own use.   On the other hand, in this case there is the cannabis oil offending, not present in Harris.

[24]     The particular value of Harris is that the scale of the cultivation operation was similar to that in this case.  Mr Harris’s previous record was more limited than that  of  the  present  appellant.     Making  due  allowance  for  the  element  of commerciality in Harris, not present here, it cannot be said that a starting point of 18 months in this case, when compared with three years three months in Harris, was wrong in principle.

[25]     Moreover, it is proper to infer that the starting point would have included some allowance for the fact that Mr Exelby had offended so recently in precisely the

same way.  This offending was worse than his 2009 offending, because the scale of what he was doing was so much greater.  That consideration cannot be dismissed, as Mr Curran  asked the court to do, on the basis  that the severity of Mr Exelby’s personal addiction had increased.  So the Judge may well have commenced with a starting point of about 15 months, uplifted to recognise recent similar offending. Such an approach is, in my view, unassailable.  Indeed, it might be thought to verge on the lenient.

[26]     Mr Curran further urges on the court the general proposition that the Judge’s discount of four months from the starting point of 18 months paid insufficient attention to compelling mitigating factors.  It is submitted on the appellant’s behalf, that his acceptance of responsibility reflected his remorse for his actions, and that he has demonstrated a degree of insight into the causes and effects of his offending by referring himself to the Hanmer Clinic for assistance with his addiction issues.  That was undoubtedly a matter to which the Judge was entitled to have regard, but it needed to be balanced against the probation officer’s assessment that Mr Exelby’s overall level of motivation to engage with rehabilitative processes was relatively low. The probation officer considered him to have little insight into what he had done and that he had displayed only limited remorse.   That comment was made against a background of recent completion of a sentence of supervision for similar offending.

[27]     Mr Curran also submits that the court ought to have taken into account (but by inference did not), the fact that Mr Exelby has a stable relationship with his ex- partner who continues to be supportive of him.  It is difficult to see how a great deal of  weight  can  be  attached  to  that  factor.    The  relationship  no  longer  subsists, although it does appear that the parties maintain a relatively good rapport.  But that said, the offending occurred at a time when his ex-partner appears to have been part of the household and it might therefore be thought that she at least tolerated the offending.  Moreover, there is the consideration that this cannabis growing operation was conducted in the presence of the appellant’s young child.

[28]     Mr Curran refers also to Mr Exelby’s good work record and to the skills he has developed in an area which seems to be short of experienced tradesmen.  While

that perhaps distinguishes him from some offenders whose long-term life prospects appear bleaker than his, I do not see that it justifies a separate mitigating allowance.

[29]     Finally,  Mr Curran  complains  that  the  deduction  of  four  months  for mitigating factors is inadequate overall in that it fails even to reach the 25% discount mandated by the Supreme Court in Hessell v R.[4]     As to that, it is to be remembered that Hessell does not direct a 25% discount for guilty pleas.  Rather, it stipulates that guilty pleas should not attract a discount greater than 25%.

[4] Hessell v R [2011] 1 NZLR 607 (SC).

[30]     Quite apart from that consideration, it is to be borne in mind that this court may interfere with a sentence on appeal only where the sentence actually imposed is manifestly excessive.   Even though there might be room for an argument that the Judge could  have made  a slightly greater allowance  for mitigating factors,  that consideration will not avail an appellant if, as here, the starting point might itself have been somewhat higher.   In my view, the argument that the discount was too small is counterbalanced by the availability to the Judge of a higher starting point than was in fact chosen.

[31]     I conclude that the ultimate sentence of 14 months imprisonment was well within the range available to the Judge.

Result

[32]     For the foregoing reasons the appeal fails and is dismissed.

C J Allan J