Hassall v Police

[2018] NZHC 487

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2017-425-52

[2018] NZHC 487

BETWEEN

JASON RAYMOND HASSALL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

14 March 2018

Appearances:

F C D More for Appellant

S N McKenzie for Respondent

Judgment:

21 March 2018

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1]    Mr Hassall was sentenced by the District Court Judge to 22 months imprisonment after he pleaded guilty to one charge of manufacturing a Class B controlled drug, namely cannabis oil.1 He appeals that sentence on the grounds it is manifestly excessive. In particular, he says the starting point of 27 months adopted by the Judge was outside the available sentencing range.

[2]For the reasons that follow, the appeal is allowed.

1      Police v Hassall [2017] NZDC 22774.

HASSALL v NEW ZEALAND POLICE [2018] NZHC 487 [21 March 2018]

The offending

[3]    Mr Hassall took approximately one pound of cannabis leaf to his niece’s rented room at a boarding house in Invercargill in which approximately 40 persons lived. He started cooking it to produce cannabis oil. This produced a strong chemical smell and the manager in the boarding house feared there was a methamphetamine lab in operation. The premises and a nearby school were cleared, and there was a HAZMAT response. When Police arrived Mr Hassall admitted cooking the leaf to produce cannabis oil.

[4]    To his credit Mr Hassall was candid and admitted that he cooked cannabis oil regularly for people who provided the leaf. He would take half the oil by way of payment. He is addicted to cannabis. He acknowledged he sold some for $20 per capsule, to fund his next batch of leaf. He had about 8 mls of oil, worth approximately

$150 to $160.

District Court sentence

[5]    The Judge noted Mr Hassall’s criminal history, including two convictions for production of cannabis oil in 2011 and a number of convictions for possession of cannabis, most recently in 2017. He has 15 drug related convictions, going back to 1996. The convictions include:

(a)Possession of cannabis oil in 2011 – six months imprisonment.

(b)Production of cannabis oil in 2011 – six months imprisonment.

(c)Cultivation of cannabis in 2011 – one year and four months imprisonment.

(d)Production of cannabis oil in 2011 – six months imprisonment.

(e)Production of cannabis oil in 2010 – one month imprisonment.

(f)Cultivation of cannabis in 2004 – community work.

(g)Cultivation of cannabis in 1998 – periodic detention.

[6]    The probation report referred to Mr Hassall’s “positive beliefs around his continued involvement with cannabis” which led the report writer to conclude he is at a high risk of reoffending, but a low risk of harm. He is ambivalent about any change in his lifestyle, and has no or little insight into his offending and why he might change his ways.

[7]    Although no address was available, Mr Hassall’s counsel sought leave to apply for home detention. The Judge was of the view that “the purposes and principles of sentencing would not… be met” by such a sentence and there is still no suitable address, so that is not advanced on appeal.

[8]    Referring to the leading case of R v Wallace and Christie, the Police advocated a starting point of at least two years, and counsel for the appellant advocated, 14 months.2 The Judge noted the preparation and planning involved in the offending and the risk of harm to others at the boarding house. The commerciality was “low level”, but the maximum penalty of 14 years “indicates how seriously Parliament considers such offending to be”, and this offence is part of a pattern of offending.

[9]    The Judge took a starting point of 27 months, and uplifted that by three months for previous convictions, saying that the uplift “could well have been higher”. The Judge deducted 25 per cent for guilty pleas, rounding down to an overall sentence of 22 months. Concluding, the Judge remarked:

You have been sentenced previously to a term of imprisonment, albeit for  six months, for similar offending. You do not appear to have learnt from that prison sentence and have, in fact, gone on to commit a number of further offences.

Jurisdiction and approach to appeal

[10]   Mr Hassall appeals as of right.3 This Court can only allow the appeal if it is satisfied that there is an error in the sentence and that an alternative sentence should

2      R v Wallace and Christie [1999] 3 NZLR 159 (CA).

3      Criminal Procedure Act 2011, s 244.

be imposed.4 If the sentence under appeal can be properly justified having regard to relevant sentencing principles, this Court will not substitute its own views for those of the sentencing Judge. The sentence must be either manifestly excessive or inappropriate, if the sentencing Judge’s discretion is to be interfered with.

[11]   It is not enough that the Judge made an error in reasoning: the focus is on the sentence imposed rather than the process by which the sentence was reached.5

Submissions

Submissions for appellant

[12]   Mr More for the appellant puts forward one principal argument on appeal: the starting point of 27 months was too high. Referring to the principles set out by      the Court of Appeal in R v Wallace and Christie he submits there are features of this offending that make it less serious than the starting point adopted. The appellant used rudimentary equipment, a fan, a frying pan and a saucepan, and the amount of oil produced was 4-5 ounces, or 140 grams.

[13]   Mr More refers to Barlow v Police, where a 12 month home detention sentence was reduced to 6 months on appeal.6 The offender faced one charge of manufacturing cannabis oil and one charge of cannabis cultivation (15 plants). There was no evidence of commerciality, and the appellant was addicted to cannabis. The cannabis oil found was a single spoonful. Mr More says that sentence puts this in context.

[14]   He also cites R v Rhodes, where the offender was growing cannabis in a shed, and had 2.5 pounds of cannabis stored in a plastic bag soaked in isopropyl alcohol, a method used for making cannabis oil.7 Other than the large amount of cannabis, there was no evidence of commerciality. Mr Rhodes had one previous conviction for cannabis cultivation. A starting point of approximately 22 months seems to have been adopted.

4      Criminal Procedure Act, s 250.

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

6      Barlow v Police HC Rotorua, CRI-2008-463-76, 1 December 2008.

7      R v Rhodes DC Nelson, CRI-2008-042-004151, 18 February 2009.

[15]   With  reference to these cases Mr More submits a starting point  of around   12 months would have been appropriate. He says the equipment used was basic, and thus the purity of the oils was “suspect” and there was no evidence of commercial gain as the oil was “still being manufactured”, and the amount realisable was about $116, eight capsules worth of $20 each.

[16]   With a three month uplift for previous convictions, and a 25 per cent discount for his guilty plea, Mr More submits an end sentence of 12 months would have been appropriate.

Submissions for respondent

[17]   Ms Mckenzie submits this was a commercial operation and that the fact that the commerciality was to fund Mr Hassall’s own habit is immaterial, as that is common in drug offending cases.

[18]The appellant has 15 drug convictions, some of which are set out above.

[19]   She refers to Taumata v R, in which a sentence of 30 months imprisonment was overturned on appeal and replaced with one of 9 months home detention.8 The charge was possession of cannabis oil for supply, although the appellant admitted that he had manufactured the oil. He had been found in possession of 26 capsules of cannabis oil, a spoon with oil residue on it, large amounts of cash, and cannabis paraphernalia. The Court of Appeal inferred that a significant portion of the oil was for personal use rather than supply. The initial starting point of 24 months was replaced with one of 15 months. Additional charges of possession of a precursor substance and utensils increased the notional starting point to 18 months. His previous offending attracted a six month uplift at sentencing, but on appeal this was reversed, the Court of Appeal noting most of the previous convictions were over 20 years old.

[20]   Ms Mckenzie says that at first blush the starting point here may seem too high in relation to Taumata, however, a number of factors make the present offending more serious. Taumata had two previous possession charges and one for supplying 22 grams

8      Taumata v R [2010] NZCA 107.

of cannabis. Here the appellant admitted manufacture for others, and manufacture for sale. He cooked the oil in a boarding house with 30-40 occupants, with his fry-pan on top of a television stand, in a bedroom sit, potentially endangering their safety with fumes and a fire hazard. Those factors she says require further deterrence. Finally, she says the uplift of three months for the appellant’s significant history of drug related offending was lenient, and could have been much higher.

[21]   Other sentences have not worked to change Mr Hassall’s habits and attitude. In the end, the 22 months sentence was within range, and should not be disturbed.

Analysis

[22]   The case law on cannabis related offending is not easily reconciled. In most cases where manufacture of cannabis oil is involved, there are charges of cultivation, or at least charges of possession or possession for supply. Rarely is an offender charged only with manufacture of cannabis oil. While manufacture of cannabis oil is a more serious offence that cultivation – being class B rather than class C drug offending – in cases where both are present, cultivation is often treated as the lead and more serious charge.

[23]   In O’Connell v Police, a starting point of nine months with a three month uplift for previous convictions was on appeal held to be excessive for manufacturing cannabis oil for personal use.9 There was no commercial element and only a very small quantity of cannabis oil was produced. The previous convictions were minor, and not for manufacturing. On appeal a six month starting point with a two month uplift was held appropriate.

[24]   In Belk v R, the offender was charged with manufacturing cannabis oil and other less serious cannabis related offences.10 A search warrant was executed at his home and a shed with a fully functioning hydroponics operation was located. On the property a “substantial amount” of cannabis cabbage was located along with 56 grams of cannabis oil. That amount was in excess of the presumption for supply but it was

9      O’Connell v Police [2012] NZHC 3286.

10     Belk v R [2012] NZHC 1198.

accepted that there was no commercial element and it was for personal use and informal sharing with friends. For the cannabis oil charge, the sentencing Judge took a starting point of 28 months imprisonment. That starting point was accepted on appeal as within range.

[25]   In R v Harvey, the offender had 30 mature cannabis plants growing on his property.11 A pot was found containing cannabis oil and various substances and utensils used in manufacturing cannabis oil. 110 grams of loose  cannabis  leaves  and head was found with the cannabis  oil  manufacturing  items,  approximately  900 grams of cannabis head, valued at over $11,000. The Judge accepted it was a small scale but commercial operation, and adopted a starting point of 28 months imprisonment. This was uplifted by six months to reflect the totality of the offending, which also included possession of a firearm, and a further four months for previous convictions and offending subject to sentence. After guilty plea discounts the overall sentence was 30 months imprisonment.

[26]   In R v Bell, the Police executed a search warrant of a 60 acre farm, and found growing facilities for cannabis and more than 10 kg of cannabis head and 5 kg of cannabis cabbage material.12 A saucepan had traces of cannabis oil, and equipment and precursor substances used in the manufacture of cannabis oil. The Judge took a starting point of 30 months imprisonment for the cultivation and possession of cannabis for supply charges. He noted that “any offending relating to the manufacture of cannabis oil would attract a sentence of at least around 12 months imprisonment”. The Judge considered a further six month uplift would be appropriate to reflect that charge.

[27]   What these cases and those discussed by counsel show is that there is a broad sentencing range available to Judges in this area, taking into account the overall criminality of the cannabis operation, the degree of commerciality, and uplift for previous and associated offending.

11     R v Harvey [2013] NZHC 2425.

12     R v Bell [2012] NZHC 1733.

[28]   The submission that there is no evidence of commerciality must be rejected given Mr Hassall’s own admissions. He produces oil to sell and to feed his habit. The degree of commerciality is low but part of repetitious conduct associated with his habitual lifestyle. A small portion of the cannabis oil he produces is sold by him, and he uses it personally.

[29]   There is no evidence before the Court of the street value of the quantities of cannabis in this case, but comparing the quantities here with those in other cases    the amounts are moderate to small. I consider Ms McKenzie is right that the circumstances of the offending, in particular the danger and inconvenience to which he put residents in the boarding house, are aggravating and that extends to the evacuation of a nearby school.

[30]   In my view, this offending is overall less serious than that in Harvey, Belk, and Bell above, but more serious than in Taumata. However, I do not think Mr Hassall’s culpability is sufficiently greater than that of the offender in Taumata to justify a starting point of 12 months more than in that case. With consistency of sentencing levels in mind, as s 8(e) of the Sentencing Act 2000 mandates, reviewing the case law has led me to the conclusion that the starting point was outside the available range. I consider a starting point of no more than 18 months would have been appropriate.

[31]   However, I accept that the uplift for previous convictions, given their relevance and relatively recent vintage, could have been greater, and the Judge was lenient in this regard. I would apply a six month uplift, resulting in an adjusted starting point of 24 months. With the 25 per cent plea discount, that results in an end sentence of 18 months.

Conclusion

[32]   The appeal is allowed. The sentence of 22  months  is  replaced  by one  of  18 months.

……………………………………………….

Nicholas Davidson J

Solicitors:

Preston Russell Law, Invercargill Scholefield Cockroft Lloyd, Invercargill