Hartley v Police
[2014] NZHC 2304
•23 September 2014
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2014-443-018 [2014] NZHC 2304
BETWEEN KIERAN ROBERT HARTLEY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 22 September 2014 Counsel:
K M Marriner for appellant
B C Sweetman for respondentJudgment:
23 September 2014
RESERVED JUDGMENT OF DOBSON J
Introduction
[1] Mr Hartley pleaded guilty to one charge of cultivation of cannabis1 and one charge of possession of cannabis.2 He was sentenced by Judge Roberts in the District Court at Hawera on 16 July 2014 to nine months’ imprisonment. He has appealed against this sentence.
Facts
[2] On 13 April 2014, Police visited Mr Hartley’s home to discuss an unrelated matter and smelt cannabis emanating from an open window. A search of the address uncovered seven cannabis plants ranging in height from 0.75 to 1.75 metres, together with 736 grams of cannabis head drying on newspaper in a room inside the house.
[3] When spoken to by the Police, Mr Hartley admitted that this was not the first
time he had grown cannabis and stated it “certainly wouldn’t be the last”. He added
1 Misuse of Drugs Act 1975, s 9(1). Maximum penalty of seven years’ imprisonment.
2 Misuse of Drugs Act 1975, s 7. Maximum penalty of three months’ imprisonment or $500 fine.
HARTLEY v POLICE [2014] NZHC 2304 [23 September 2014]
that he “didn’t feel he was doing anything wrong and he was only in trouble because the government had made cannabis use illegal”. He said he grew the cannabis for use to medicate pain associated with a recurring dislocation of his left shoulder.
Previous offending
[4] In 2009, Police discovered a growing operation and 11 cannabis plants between 5 and 30 centimetres in height, 14 plants between 70 and 80 centimetres, seven plants between 40 and 45 centimetres and 2.3 kilograms of harvested cannabis that was in the process of drying. On that occasion, Mr Hartley was convicted of possession of cannabis for supply, cultivation and possession of equipment for cultivating cannabis. He was sentenced by Judge Roberts to six months’ home detention. The sentencing notes from the 2009 convictions were not available. However, Judge Roberts remarked during the current sentencing that it is likely that a starting point of 18 months was adopted then reduced by a third for Mr Hartley’s guilty plea to arrive at 12 months’ imprisonment. That had then been substituted with the sentence of home detention.
Materials available on sentencing
[5] There were seven letters potentially relevant to the appeal. The first two were produced for the 2009 sentencing. In a letter dated 4 October 2009, Mr Hartley wrote:
… I had contemplated quitting a few times but due to my addiction I thought that was a mountain I would climb later but since I have been caught it has given me a shove in the right direction that I wish I had received earlier.
… I have now found a job with a previous employee that was happy to employ me only if I was drug-free and I can happily say I am. And I do not wish to go down that road again …
… After smoking cannabis for the past 11 years and progressively getting heavier and heavier into it I feel a great sense of achievement from overcoming my addiction with the help of counselling and family support and although I’ve been clean for only a month I feel a lot better and do not wish to ever get involved in drugs again.
I want to make something of my life.
[6] In a letter dated 9 October 2009, Mr Scannell from Mental Health and
Addiction Services wrote:
… Since our first few meetings Mr Hartley has had time for considerable soul-searching and has made significant changes to his attitude towards cannabis use. He has backed this up with behaviour change and no longer smokes cannabis. His most recent Urine Drug Screen shows Nil Cannabis or other drugs of abuse. Cannabis can take up to six weeks to get out of the system and to produce a clean UDS so this result is a significant indication of Mr Hartley’s commitment.
… At the time of [Mr Hartley’s] arrest he was smoking between ten and twenty joints of cannabis daily … when he stopped smoking he experienced withdrawals, he was preoccupied with cannabis and his activities had narrowed because of his use of it. He meets a DSMIV Diagnosis of Physiological Dependence to Cannabis now in Early Remission.
… My impression is that Mr Hartley has considerable abilities as a dairy farmer and with agricultural contracting and that he is a hard worker with a passion for the farming sector.
When I first saw Mr Hartley he had poor insight into how Cannabis was having a negative effect on his life… Over the following weeks Mr Hartley very gradually accepted quitting Cannabis would be beneficial.
[7] The next two letters were produced for the 2014 sentencing. In a letter dated
14 July 2014, Mr Matthews from Mental Health and Addiction Services wrote:
Kieran has attended one Getting Started Group session and two 1.1 counselling sessions. Kieran is in the contemplative to action stage of the wheel of change and freely admits that he has serious regrets around his offending.
…
It is my opinion that Kieran has a positive prognosis for the future, providing he attend our service regularly, and implement the strategies for change ongoing.
[8] In an undated letter, Mr Symes, the settlor and controller of the L J Symes
Trust, which employs Mr Hartley to manage a 450 cow dairy farm, wrote:
Kieran has been here for two years managing now and the farms performance has improved greatly. Under the same structure but with different managers the farm was doing around 164,000 milk solids a year. Now with Kieran and his team the farm has done 172,000 last year with a bad drought and 184,000 this season just finished.
… I am very happy with the direction the farm is taking under Kieran’s management…
...
... [I] decided with the big picture of farm production and our good employer employee relationship in mind told Kieran he could keep his job under some definite conditions.
1) He has to be drug free. This is black and white.
2) We will pay for regular testing to ensure condition 1 is met.
We are supportive of [Mr Hartley attending counselling] … even if it means time off the farm…
[9] The remaining three letters were submitted for the purpose of the current appeal. In an undated letter, Mr Hartley expressed great disappointment with himself for falling back into his old habits. His greatest concern at being in prison was the effect it was having on his family, both emotionally and financially. He is very keen to keep his current job. He claimed to have made huge changes to his life and mindset over the past months since his arrest, and was committed to continuing his courses to help keep him free of cannabis use after his release.
[10] In a second letter, dated 1 September 2014, his employer, Mr Symes, wrote that Mr Hartley will have his job back under some new stringent conditions as soon as he is released.
[11] The most recent communication was a letter from the registered nurse who runs the mental health programmes for prisoners at Hawke’s Bay Prison. It is dated
11 September 2014 and reports that Mr Hartley has voluntarily participated in sessions with her and has completed homework as directed. The nurse acknowledges Mr Hartley’s previous dependence on cannabis in helping to manage pain and considers that he is approaching the change in his habits in a positive manner. The nurse reports:
Kieran appears motivated to get his life back on track and for him the start of this is to be back at work and also accessing counselling around drug use. In my opinion Kieran has some great future goals and is really wanting to get back to work and address his pain management and I believe with the right kind of support systems in place he will achieve these goals and they will likely serve as preventative measures to his not being involved in any further reoffending.
Pre-sentence report
[12] The pre-sentence report assessed the risk of Mr Hartley re-offending as high given his conviction history and his initial comments to Police. In terms of sentencing options, the report noted that Mr Hartley’s shoulder injury prevents him from being able to complete a sentence of community work. The need for continuous monitoring would mean that a sentence of home detention would require Mr Hartley to forgo his employment.
[13] The report writer assessed Mr Hartley as highly motivated to adhere to any sentence imposed and recommended a sentence of intensive supervision and community detention.
The District Court sentencing
[14] Judge Roberts noted the details of Mr Hartley’s offending, his relevant criminal history, the pre-sentence report and the letters from Mr Hartley’s employer and counsellor respectively. The Judge highlighted Mr Hartley’s unrepentant words to Police when he was apprehended and treated Mr Hartley’s claims to be committed to reforming his ways as “window dressing” in light of similar sentiments expressed in 2009. The Judge was sceptical of Mr Hartley’s re-engagement with counselling.
[15] Having regard to the scale of the offending (the number of plants, their size and the harvested material) and Mr Hartley’s previous offending, the Judge placed the offending in category one of R v Terewi and imposed a starting point of
12 months’ imprisonment.3 This was reduced to nine months to reflect Mr Hartley’s
guilty pleas. The Judge also imposed special conditions for the six month period following release.
[16] The Judge did not impose home detention because Mr Hartley is a repeat offender, home detention did not work in the past and “long-term change is unlikely”. The Judge considered that a sentence other than imprisonment would be insufficient to hold Mr Hartley accountable, denounce his conduct and deter further
offending.
3 R v Terewi [1999] 3 NZLR 62 (CA).
Standard on appeal
[17] The decision not to impose home detention involves the exercise of discretion and therefore the question is whether Judge Roberts applied an incorrect principle, failed to take into account a relevant factor or took into account an irrelevant one, or was plainly wrong.4
Submissions
[18] Ms Marriner submitted for Mr Hartley that the Judge placed insufficient weight on Mr Hartley’s work ethic and supportive employer, his health issues and the pre-sentence report. She argued that a sentence of home or community detention should have been imposed given that the offending was for personal use, the convictions were less serious than the previous ones, Mr Hartley pleaded guilty at the earliest opportunity, and taking into account his employment and family situation.
[19] For the Police, Ms Sweetman submitted that there was no identifiable error in the approach adopted by the sentencing Judge, so that the threshold for reconsidering the sentence was not reached. She emphasised that the present convictions comprised the fifth and sixth cannabis-related convictions for Mr Hartley, and that the Judge was entitled to be sceptical about Mr Hartley changing his ways. She characterised Mr Hartley’s comments when he was arrested as showing a brazen disregard for the law because he thought that it was the legal system that was at fault and not him. When the maximum penalty for the more serious conviction was seven years’ imprisonment, a pattern of repeat offending and an attitude suggesting a commitment to continuing to offend in this way required a relatively stiff deterrent response.
[20] In reply, Ms Marriner pointed out that the convictions for cannabis-related offending have only resulted in three sentencings, in March 2005, November 2011 and most recently in July 2014.
Discussion
[21] The issue is whether the Judge erred in imposing a sentence of imprisonment rather than a sentence of home detention or community detention.
[22] Given there was no commercial element to the offending, the Judge correctly placed the offending in category one of Terewi. I note that offending in category one will not normally lead to a sentence of imprisonment: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.
[23] In my view, the decision not to impose a community based sentence or a sentence of home detention was plainly wrong. It placed insufficient weight on Mr Hartley’s personal circumstances and the distinction between cultivation for personal use and cultivation for supply of others. While the personal circumstances of drug offenders are less important than the deterrent consideration in any penalty imposed, home detention is commonly given for cases involving materially more
serious offending.6 Community detention combined with intensive supervision has
been imposed on comparable occasions where the motivation for change is strong and the offender has secure employment and family support.7
[24] Mr Hartley’s work ethic and skills are rated highly by his employer who is prepared to give him a final opportunity provided he undergoes random monthly drug testing. Despite the employer’s promise to re-employ Mr Hartley, if he is not
released from prison until he becomes eligible for parole, there is no guarantee that
5 R v Terewi, above n 3, at [4].
6 R v Brammall [2012] NZHC 3373; R v Pearce HC Whangarei CRI-2008-088-2980; R v Parrott
HC Rotorua CRI-2010-070-4119, 2 February 2011; R v Anderson HC Auckland CRI-2010-004-
10143, 20 September 2011; R v Fafeita [2013] NZHC 1832; R v Delamore HC Auckland
CRI-2010-004-1934, 5 October 2010.
7 R v Coombes [2013] NZHC 70; R v Campbell DC Hamilton CRI-2008-019-754, 28 April 2009; R v Morgan [2013] NZHC 2549 (re Mahendiran); R v Findley [2013] NZHC 2015 (re Tait); R v Pawa-Buckton HC Rotorua CRI-2010-063-5826, 9 March 2011.
this will occur. Mr Hartley has the support of his mother, and his income is necessary to support the mother of his child.
[25] I accept that Mr Hartley has engaged with drug counselling before and relapsed into drug use. His comments to Police are indicative of an arrogant or blasé attitude towards his offending. However, the Judge erred in rejecting entirely the measures Mr Hartley has taken since his last arrest to address his drug dependency. The most recent communication from the nurse supervising his present courses confirms that he is carrying through with the commitments he foreshadowed earlier.
[26] I also consider that the need for denunciation and deterrence is lower in cases of cultivation than in cases of supply. The seriousness of cultivation for personal use should not be minimised, but the harm caused by such offending is more to the offender and his or her family, than to the community. I note the comments of Simon France J in R v Knauf:8
In my view the submissions I have received with respect focus on a more serious situation than the facts allow. It is significant cultivation, and that is against the law and not to be minimised. But it is not drug dealing.
[27] I am satisfied that the Judge erred in declining to impose home detention on the basis that Mr Hartley was a repeat offender and long-term change is unlikely. Such a conclusion did not properly take into account the scale of offending, Mr Hartley’s personal circumstances including the nature of his drug dependency and subsequent efforts to address it and, in particular, the sentences imposed for similar and more serious offending.
[28] The next issue is whether a sentence of home detention, or one of community detention coupled with intensive supervision, is the more appropriate. Section 69C(1) of the Sentencing Act 2002 provides that a court may impose a sentence of community detention for a maximum period of six months if satisfied:
(a) that a sentence of community detention—
(i) would reduce the likelihood of further offending by
restricting the offender’s movements during specified
periods, including, but not limited to, offending of a particular type or at a particular time; or
(ii) would achieve 1 or more of the purposes set out in section
7(1)(a), (b), (e), or (f); and
(b) that an electronically monitored curfew is appropriate, taking into account the nature and the seriousness of the offence and the circumstances and the background of the offender.
[29] Relevant purposes referred to in s 69C(1A)(ii) are the need to hold the offender accountable for harm to the community, to promote a sense of responsibility for and an acknowledgment of harm, to denounce criminal conduct and to deter the offender and others from committing the same or similar offences. I note that Harrison J said in R v Radick that:9
Ultimately I do not see a great deal of difference between imposing a sentence of home detention and one of community detention together with community work given my satisfaction that in the former case the duration would be about seven months. Both of them are restrictive of freedom; it is just that the sentence of community detention is less restrictive because it will allow you to work. It will ensure that you do not become a burden on the state. It will aid your rehabilitation and your reintegration into the community.
[30] In my view, a sentence of community detention coupled with intensive supervision is the least restrictive outcome that is appropriate in the circumstances. Home detention is not appropriate given that it would require Mr Hartley to forgo employment. A sentence of community detention coupled with intensive supervision will reduce the likelihood of further offending whilst still holding Mr Hartley accountable. Mr Hartley’s rehabilitation will be far better served by gainful employment during the course of his sentence. That is particularly so given the conditions of his employment, his willingness to continue with addiction counselling and his request that the Court impose a lengthy period of intensive supervision.
[31] Mr Hartley has already served two months of the present sentence as originally imposed. I am satisfied that the effect of the period already served, together with the substituted sentence I am imposing, will have just as much deterrent impact as if he continued to serve the balance of the original sentence.
Therefore, to the extent that the risk of re-offending has to be addressed, I am satisfied that there is no increase in that risk.
[32] Certainly, Mr Hartley must appreciate that pursuit of his appeal seeking a sentence of community detention does involve an element of risk. He should expect to have his behaviour monitored, and if he breaches the trust involved in remitting the sentence on the terms sought, where that is done in part in reliance on the commitment he is making to change his ways, then it is very likely that any further offending will be treated more harshly than if any subsequent offending was at a later date after release from the prison sentence originally imposed.
Conclusion
[33] Accordingly, I quash the sentence of nine months’ imprisonment and, giving credit for two months served, replace it with a sentence of four months’ community detention and 18 months’ intensive supervision with the standard conditions outlined in s 54F of the Sentencing Act. The additional conditions imposed are:
(a) the community detention sentence is to be served at 403 Rowan Road, Hawera;
(b)the curfew imposed is from Monday to Sunday inclusive, from 9 pm to 5 am;
(c) the first curfew is to take effect three days after the date of this judgment.
Dobson J
Solicitors:
Parker and Marriner, Hawera for appellant
Crown Solicitor, New Plymouth for respondent
4
0