Habib v Police

[2018] NZHC 1224

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2018-412-000003

[2018] NZHC 1224

BETWEEN

VIGIL HABIB

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	25 May 2018 (By way of AVL)
Appearances:	D L Henderson for the Appellant R D Smith for the Crown
Judgment:	29 May 2018
Reissued:	30 May 2018

JUDGMENT OF DUNNINGHAM J

[1]                  On 1 December 2017, Judge Turner sentenced Vigil Francis Habib to two years and five months’ imprisonment, along with an associated order for the forfeiture of

$1,445, for possession of cannabis for supply.1 Mr Habib appeals on the basis that the

starting point adopted was too high.2

Background facts

[2]                  On 16  March  2017,  Police  executed  a  drug-related  search  warrant  of  Mr Habib’s home address. The search revealed a snap-lock plastic bag containing

311.8 grams of cannabis bud. This was stated to have a street value of $3,850 to

1      There was also a charge of failing to answer bail.

2      The general notice of appeal states the sentence is “harsh, extreme compared to others [and] … the cannabis was for medical reasons not for sale”. There is no argument that the only actual ground of appeal is that the starting point is too high, as the uplift and mitigating factors are accepted.

HABIB v NEW ZEALAND POLICE [2018] NZHC 1224 [29 May 2018]

$4,950 if sold by the ounce. Some of the cannabis was packed into two gram bags and if sold by this smaller quantity, it would have a street value of $7,775. Mr Habib also produced a plastic bag containing $2890 in cash. Electronic scales and several empty snap lock bags were also found at the property.

[3]                  Mr Habib initially explained that the cannabis was for his own personal use to ease the symptoms of multiple sclerosis. However, he pleaded guilty to supply and that conviction is not appealed.

Relevant law

[4]Section 9 of the Misuse of Drugs Act 1975 provides:

9 Cultivation of prohibited plants

(1)Except pursuant to a licence under this Act, or as otherwise permitted by regulations made under this Act, no person shall cultivate any prohibited plant.

(2)Subject to subsection (4), every person who contravenes subsection

(1)  commits an offence against this Act and is liable on conviction to imprisonment for a term not exceeding 7 years.

…

[5]                  Section 9 of the Act defines the offence of cultivation without differentiating between personal or commercial use.   The guideline judgments in R v Dutch3  and   R v Terewi4 have provided guidance on sentencing for the different categories of offending for the cultivation of cannabis. The three bands set out by the Court of Appeal in both decisions are:5

Category 1 consists of 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 this category is almost invariably dealt with by a fine or other non-custodial sentence. Where there have been supplies to others on a non-commercial basis the monetary penalty will be greater and in more serious cases or for persistent offending a term of periodic detention or even a short prison term may be merited. (It is to be noted in this connection that there is no separate offence in relation to a class C drug of supplying or possession for supply, as opposed to selling or offering for sale or possession for sale (s 6(1)(e) and (1).)

3      R v Dutch [1981] 1 NZLR 304 (CA).

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

5      R v Terewi, above n 4, at [4].

Category 2 encompasses small-scale cultivation of cannabis plants for a commercial purpose, ie with the object of deriving profit. The starting point for sentencing is generally between 2 and 4 years but where sales are infrequent and of very limited extent a lower starting point may be justified.

Category 3 is the most serious class of such offending. It involves large-scale commercial growing, usually with a considerable degree of sophistication and organisation. The starting point will generally be 4 years or more.

[6]                  The Court of Appeal in R v Gray confirmed the Terewi guidelines apply to offences involving the cultivation and supply of cannabis:6

The offences of cultivation and possession for supply often relate to different stages in the same operation conducted by the same person … The two offences are frequently described as associated or interrelated and this Court has recognised ‘a close analogy’ between growing and dealing for profit … no distinction should be made between selling and cultivating cannabis.

District Court Sentencing

[7]                  Judge Turner began by stating the facts as summarised above. He also noted the advice from counsel, that the supply was only “to a discrete group of associates”. His Honour then noted that Mr Habib had appeared before the Court previously on 17 drug charges between 1996 and 2015. Four of these were for drug dealing.

[8]                  The Judge had regard to a pre-sentence report prepared prior to sentencing. The report noted what the Judge described as Mr Habib’s “appalling performance on parole between August 2014 and December 2015” and it recommended imprisonment.

[9]                  For the starting point, Judge Turner considered the offending fell within the lower end of Category 2 of the Terewi guidelines. His Honour set a starting point of 30 months’ imprisonment.

[10]              His Honour went on to uplift the sentence by four months for previous drug offences. From that, a reduction of 15 per cent for health issues and a guilty plea (albeit at a belated stage) was made. The final sentence was thus 29 months.

6      R v Gray [2008] NZCA 224 at [10]-[12].

Submissions

Appellant’s submissions

[11]              The appellant submits that the offending falls within what the Courts have sometimes referred to as the ‘twilight zone’ of cannabis cultivation offending that straddles Category 1 and Category  2.7  Accordingly,  the  appellant  states  that  Judge Turner erred in setting a starting point of 30 months when comparable cases were less than 24 months.

[12]The appellant referred to several such cases:

(a)In Rauhihi a starting point of 15 months’ imprisonment was taken where there were 72 cannabis plants and 326 grams of cannabis, worth approximately $6,500.

(b)In R v McGilp the defendant was found with 98 cannabis cuttings and seedlings, 58 cannabis plants and 201 grams of cannabis material and cultivation paraphernalia. The Judge agreed that the offending was at the lower end of Category 2 but cited “exceptional circumstances” of the case justified a lower starting point of 15 to 18 months.8

(c)In Devereux v Police 110.7 grams of cannabis, scales and $3,120 was found. A starting point of 18 months was adopted.9

(d)In Kennedy v Police 480 grams of cannabis head, scales and almost 2.9kg of cannabis leaf attracted a starting point of two years.10

[13]              Given the similarity between these cases and the present facts, the appellant submits that a starting point of between 15 and 24 months should be adopted.

7      See, for example, R v Rauhihi HC Palmerston North CRI-2008-031-1438, 1 May 2009 at [23].

8      R v McGilp (2006) 23 CRNZ 526 (CA).

9      Deveraux v Police [2017] NZHC 167.

10     Kennedy v Police [2017] NZHC 3066.

Respondent’s submissions

[14]              The respondent submits the starting point of two years and six months’ imprisonment was within the available range and the Judge has made no error in sentencing. The respondent points to the Practice Note on Sentencing which provides:11

Generally where a Court of Appeal guideline decision is available, references to other decisions will not be of assistance.

[15]              Judge Turner expressly referred to the guideline decision, Terewi, and held the present offending fell within the lower end of Category 2.

[16]              The respondent submits that while the appellant can point to a range of decisions where lower starting points have been adopted, there are ample decisions where comparable starting points have been adopted and approved by the Court of Appeal:

(a)In Tomars v R, where 42 grams of cannabis head was located, the Judge adopted a starting point of three years’ imprisonment.12 The Court of Appeal upheld this as, although it was at the top of the range, it was not manifestly excessive.

(b)R v Reardon was a case where the appellant had pleaded guilty to a number of drug dealing charges.13 Police also found $5,000 in cash. The Court of Appeal accepted a starting point of three and a half years was available incorporating the appellant’s previous convictions.

(c)In Codlin v R the appellant pleaded guilty to charges of selling cannabis and possession for supply.14 Upon execution of a search warrant the Police located a total of 32.3 grams of cannabis and $1,970 in cash. The Sentencing Judge found this was at the lower end of Category 2

11 Practice Note on Sentencing [2003] 2 NZLR 575 at [2.2(h)].

12     Tomars v R [2013] NZCA 54.

13     R v Reardon CA 459/2003, 19 April 2004.

14     Codlin v R [2012] NZCA 71.

offending. A starting point of two years and nine months was adopted which the Court of Appeal held was within the range available.

(d)In Lord v R, where a starting point of two years nine months’ imprisonment was approved, the Court of Appeal commented in dismissing the appeal:15

[22] On this range of authorities the Judge could have taken a starting point of below two years nine months. But that does not mean that his starting point was beyond the available range. The Judge on these facts was entitled to place the offending in the lower middle band of Category 2 in Terewi.

[17]              On that basis, the respondent submits by comparison to similar cases the starting point of two years six months was within the range available to the sentencing Judge.

[18]              In any event, even if the starting point was high, the uplift for previous drug-related offending was modest and 15 per cent credit for a guilty plea on the day of trial and for health issues was generous. Looked at in totality the end sentence of two years five months’ imprisonment was within the available range and could not be said to be manifestly excessive.

Discussion

[19]              The appellant essentially argues that this is offending that falls within the exception to Category 2:

…where sales are infrequent and of very limited extent a lower starting point may be justified.

[20]As the Court of Appeal noted in R v Edmonds:16

… the categories are for guidance in assessing comparative culpability, they do not fix it. For offending falling within category two the judgment in Terewi states that the range available to a sentencing judge is generally between two and four years before adjustment for special factors. But there is the additional direction that if the commercial element is small a lower starting point might be justified. The decision does not state that for all cannabis offending having

15     Lord v R [2012] NZCA 276.

16     R v Edmonds CA23/02, 28 May 2002 at [9].

a commercial element, however small, the sentence must be no less than imprisonment for two years.

[21]              However, I agree with Judge Turner’s view that this offending is Category 2 offending, encompassing small-scale cultivation of cannabis plants for a commercial purpose. The presence of bags and scales, along with a quantity of cash, support the commerciality of the supply and it was open to him to place this offending within Category 2 of Terewi.17 That said, I agree with Mander J’s observation in Devereux v Police, 18 that there is still a fundamental need for some level of consistency in the starting points adopted for like offending.19

[22]              In Devereux, Mander J reviewed cannabis sentencing decisions. His Honour discussed a range of cases which fell within the description of a Category 2 offence, but noted that some adopted a starting point below the two to four-year bracket. However, equally, there have been several appellate decisions which adopt the orthodox approach of Terewi as referred to by the respondent. The same issues confront the Court in this case.

[23]              I accept that the cases referred to by the respondent represent more serious offending, involving charges of sale and, in a number of the cases, the operation of a “tinny” house. On the facts, it is difficult to distinguish this offending from the cases the appellant refers to which have attracted starting points of less than two years. Accepting that Mr Habib’s sales were to a limited group of associates and involved a single charge of possession for supply, I consider a lower starting point should have been selected by the District Court to recognise the principle that consistency should be achieved in sentencing like cases. A starting point of two years would better reflect the level of his offending when regard is had to cases that involve a similar level of seriousness, while still reflecting the guidelines in Terewi.

[24]              Accordingly, I take a starting point of 24 months’ imprisonment. I accept the uplift of four months for the appellant’s previous offending was favourable to him but I do not propose to change it. Similarly, I consider the 15 per cent discount favourable

17     Sentencing Act 2002, s 8(e).

18     Devereux v Police, above n 9.

19     Even taking into account that it was agreed that only half the cash should be forfeited as proceeds of cannabis dealing.

to the defendant, but again I would not change that. Taking those adjustments into account, a term of 24 months’ imprisonment is the end result.

[25]              The appeal is therefore allowed. The sentence of two years and five months’ imprisonment is set aside and substituted with one of two years’ imprisonment on the charge of possession of cannabis for sale. Standard release conditions are to apply. In all other respects, the District Court decision remains undisturbed.

Solicitors:

Deborah Henderson, Barrister, Dunedin RPB Law, Dunedin