Hockly v Police

[2012] NZHC 2938

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2012-454-24

CRI-2012-454-25 [2012] NZHC 2938

AARON STEWART HOCKLY

v

NEW ZEALAND POLICE

Hearing:         7 November 2012

Counsel:         O S Winter for Appellant

A M Read for Crown

Judgment:      7 November 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 11:30am on the 7th November 2012.

JUDGMENT OF WILLIAMS J

Solicitors:

WinterWoods Lawyers, PO Box 12067, Palmerston North

Crown Solicitor, Palmerston North

AARON STEWART HOCKLY V NEW ZEALAND POLICE HC PMN CRI-2012-454-24 [7 November 2012]

[1]      The appellant, Mr Hockly, pleaded guilty in the District Court to:

(a)       one charge of cultivation of cannabis under s 9(1) of the Misuse of

Drugs Act 1975; and

(b)      one charge of theft  of electricity under ss  219  and  223(b) of the

Crimes Act 1961.

[2]      On the cultivation of cannabis charge, the Judge sentenced Mr Hockly to two years and four months’ imprisonment.   On the theft charge, the Judge imposed a sentence of four months’ imprisonment (to be served concurrently having already considered  the  charge  as  an  aggravating  factor  of  the  cultivation)  and  ordered Mr Hockly to pay reparation of $1,196.90.  Mr Hockly appeals against his sentence.

Circumstances of the offending

[3]      On 28 October 2011, a search warrant was executed at Mr Hockly’s residence (owned by his employer).  Both Mr Hockly and his partner were present.  Mr Hockly informed  the  police  that  he  was  growing  cannabis  in  the  double  garage  at  the address.

[4]      In the garage, the police located a sophisticated cannabis growing operation. The cannabis was growing in a partitioned off part of the garage, six metres by eight metres in size.  The area was lined with polythene and split into three sections.  One contained seedlings, another contained 70 cannabis plants, and the other contained

90 cannabis plants.  Each of the plants were growing in individual planter bags under lights.  The garage and growing areas were powered by electricity from the house. Mr Hockly had diverted the electricity supply so that he could use the power without paying for it.  It was agreed between the parties that the value of the electricity stolen was between $1,196.90 and just over $18,500.

[5]      In total, the police discovered 863 cannabis plants comprising 164 cannabis plants between 60 and 90 cm tall, and 699 cannabis seedlings.   The police also located:

(a)       five heat lamps (one was above the seedlings, two were above each partition containing the mature plants);

(b)      seven power supply transformers; (c)    two carbon filters;

(d)      six pedestal fans; (e)           dehumidifier;

(f)       electric heater; and

(g)      various extension cords.

[6]      Inside the house, police also located a bag of cannabis leaf and instruments for  the  consumption  of  cannabis.     When  interviewed,  Mr  Hockly  admitted cultivating the cannabis and having cultivated previously, but said that he had not yet harvested any plants from the particular grow located in the garage.

[7]      The Provision of Advice to the courts (equivalent of pre-sentence report) noted that Mr Hockly has used methamphetamine for eight to ten years and that his use  had  escalated  in  2010/2011.    The  report  writer  observed  that  Mr Hockly intimated that his methamphetamine dependency allowed him to be coerced into establishing the growing operation.   Mr Hockly told the report writer that he had been drug free since his arrest, had engaged with MASH Trust since April 2012 and had passed all his random drug tests.   The report writer noted that Mr Hockly’s commitment to rehabilitation and his level of familial support meant that his likelihood of reoffending was assessed as low and his risk of harm as moderate.

[8]      Mr  Hockly  was  sentenced  by  Judge  Lynch  in  the  District  Court  on

28 September 2012.  At sentencing, both Crown counsel and counsel for Mr Hockly accepted that the offending fell within Category 2 of Te Rewi.  The Crown submitted that an appropriate starting point was in the region of three years’ imprisonment. Counsel for Mr Hockly submitted that a starting point of two years and nine months’ imprisonment was appropriate, and argued for a sentence of home detention.   He emphasised that the growing appeared to be mainly directed at Mr Hockly’s own addiction.   In addition, he noted that, since the time of his arrest, Mr Hockly had taken steps to confront his addiction, reducing his likelihood of re-offending.

[9]      The Judge noted the letters of support from Mr Hockly’s family, and the letter from Mr Hockly himself describing his descent into methamphetamine addiction. He also observed that Mr Hockly had tested negative for drugs in May and August. He considered the primary purposes of sentencing to be denunciation and deterrence, but he did not overlook the need for rehabilitation or the need to impose the least restrictive outcome.

[10]     The Judge considered that Mr Hockly’s offending fell at the mid to upper end of Category 2 of Te Rewi, and he adopted a starting point of three years and three months’ imprisonment.  In making this assessment, he took into account the number of cannabis plants found, the sophistication and planning, the commerciality and the theft of electricity.   He uplifted that starting point by three months to take into account Mr Hockly’s “history of dishonesty”.   He then deducted six months for Mr Hockly’s remorse and commitment to rehabilitation.  Finally, the Judge reduced the sentence by eight months to reflect Mr Hockly’s guilty pleas.  Thus, the Judge imposed  an  end  sentence  of  two  years  and  four  months’ imprisonment  on  the cultivation of cannabis charge.

[11]     The Judge considered the theft charge to be an aggravating factor of the cultivation, and giving Mr Hockly credit for his guilty plea, he imposed a sentence of four months’ imprisonment (to be served concurrently with the sentence imposed for cultivation) and ordered Mr Hockly to pay $1,196.90 reparation.  He also made an

order for the destruction of cannabis and all items used in the cultivation of the cannabis.

Appeal against sentence

Approach

[12]     Sections 115 and 119 of the Summary Proceedings Act 1957 state this is a general appeal by way of rehearing.  The onus is on the appellant to satisfy me that the grounds of appeal have been made out and that I should differ from the original decision, but I must come to my own view on the merits.1

[13]     Section 121(3) provides that in the case of an appeal against sentence, the court  may confirm  the  sentence;  or if  the sentence is  one in  which  is  “clearly excessive,   inadequate   or   inappropriate”   (“manifestly   excessive”)   or   has   no jurisdiction to impose, may quash or vary the sentence or part of it.

[14]     In  R  v  Monkman,  the  Court  of  Appeal  explained  the  term  “manifestly

excessive” in the following way:2

Whether a sentence can be said to be manifestly excessive turns on the maximum sentence prescribed by law for the offence; the level of sentencing customarily  observed  with  respect  to  that  offence;  the  place  which  the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the extent that they are relevant with respect to that particular kind of offending...

[15]     That said, the focus is on the correctness of the end result, not the process by which the sentence was reached. As the Court of Appeal observed in Ripia v R:3

... this Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly excessive.   The route by which the judge reached that outcome will be relevant to the analysis, but seldom in itself pivotal.

1 Austin, Nichols and Co Inc v Stichting Lodestar [2008] 2 NZLR 141.

2 R v Monkman CA445/02, 3 March 2003 at [6].

3 Ripia v R [2011] NZCA 101 at [15].

[16]     I will first consider whether the starting point and uplifts were too high, with a view to determining whether the sentence itself is manifestly excessive.

Starting point

[17]     The appellant argues that the starting point of three years and three months’

imprisonment was too high in that the Judge:

(a)      “overstated” the degree of sophistication – counsel argued that the features that the Judge highlighted in that regard are common features in the indoor cultivation of cannabis.  Counsel argued that few of the features of more advanced cannabis growing were present in this case: the supply of water and nutrients hydroponically, electronically controlled temperature, advanced lighting and high technology cladding.  This, it was argued was a “typical, basic, indoor growing operation”; and

(b)double-counted the theft of electricity – treating it both as a feature of sophistication and an aggravating feature on its own account.

[18]     To determine whether the starting point is too high, it is necessary to look at comparable cases.   It is to be noted that the Crown submitted that a starting point around three years was appropriate.   The starting point adopted by the Judge was slightly higher at three years and three months.  In my view, the following cases are comparable:

(a)      R v Warren:4   Mr Warren was sentenced on two counts of cultivation of cannabis, one count of possession of equipment and theft of electricity.   Police executed a search warrant at the rural property where Mr Warren’s residence.   Mr Warren resided on a bus on the property, which was also used to grow cannabis.  Police located a total

of 287 cannabis plants inside the bus, in a crate beside the bus, in a

4 R v Warren HC Hamilton CRI-2011-073-184, 13 September 2011 (Woolford J).

van and in a shed at the back of the garage.  But about half were in poor condition, so Mr Warren was sentenced on the basis that there were 137 cannabis plants; 63 nearing maturity, and 74 other small ones.   The cannabis plants were grown in plastic-lined rooms, with extractor fans and heat lamps on timers.   The equipment located included fertiliser, power boxes, water spray containers, extension cords and multi-plugs.   Woolford J set a starting point of two years and six months’ imprisonment on the basis that there was relatively little evidence of commerciality and that half the plants would not have reached maturity.

(b)R v Latham:5   Mr Latham pleaded guilty to one count of cultivation of cannabis and one count of theft of electricity.   A police search of Mr Latham’s house revealed 254 cannabis plants in total of varying heights.  Most of the plants were growing under heat lights in the attic with a fan and operative timing unit.   There were also measuring containers, plant food, potting mix and similar growing aids in the attic.  The police also located four cannabis buds, two spotting knives, hand-held scales, tin-foil and snap lock bags in the house.   In the master bedroom, there was a pipe and a canister containing 0.2 grams of dried cannabis.  Electricity had been diverted before the meter to supply power to the attic (judgment does not say the exact amount but reparation of $2,200 ordered at sentencing). The Court of Appeal held that the starting point of three years’ imprisonment adopted by the sentencing Judge was manifestly excessive.  It held that although the number of plants and other indicia of cultivation were reasonably significant, the likely yield was modest and the evidence of supply, rather than sale, to others was minimal.   The Court of Appeal concluded that  the appellant’s  offending  was  on  the borderline of Category  1  and  2  of  Te  Rewi.    The  court  considered  that  the appropriate  starting  point,  also  taking  into  account  the  theft  of

electricity, was in the region of two years or a little more.

5 R v Latham [2007] NZCA 552.

(c)      R v Shelford:6   Mr Shelford was convicted of one charge of cultivating cannabis  and  one  charge  of  theft  of  electricity.    Mr Shelford  was present when the police executed a search warrant at a property.  At that property, the police located 312 cannabis plants and seedlings in one room, and 61 larger cannabis plants in another room.   The electrical wiring had been modified to by-pass the electricity meter, drawing  electricity  directly  from  the  mains.     The  value  of  the electricity was estimated to be just under $1,500.   The sentencing Judge described the cannabis growing operation as sophisticated, involving a heavy demand for electricity for heating, lighting and ventilation.   The Judge adopted a starting point of three years’ imprisonment, having regard to the fact that the Mr Shelford was not the principal offender.

(d)R v Wallace:7     Mr Wallace appeared for sentencing for charges of cultivation of cannabis, possession of equipment and material capable of being used for the purpose of cultivation of cannabis,  theft  of electricity and firearms charges.  Police executed a search warrant at Mr Wallace’s home.  They located in an area constructed beneath the home, a sophisticated cannabis growing operation.  There were three distinct rooms which contained 139 cannabis plants in total.   Some plants  were  growing  underneath  lights  on  timers.     There  were extractor fans and a dehumidifier.  Mr Wallace had stolen electricity to the value of $4,900 over a period of about nine months.   Gendall J considered this to be a sophisticated cannabis growing operation.  His Honour adopted a starting point within band two of Te Rewi of three years’ imprisonment.

(e)      R v Cooper:8   Mr Cooper pleaded guilty to a charge of cultivation of cannabis.    When  searching  a  property,  the  police  found  cannabis

growing  hydroponically  in  two  upper  rooms.     There  were  190

6 R v Shelford CA175/06, 13 November 2006.

7 R v Wallace HC Whangarei CRI-2009-027-3138, 18 March 2010 (Gendall J).

8 R v Cooper HC Auckland CRI-2007-044-1261, 15 July 2008 (Keane J).

cannabis plants of various sizes.   Holes had been made in walls to ventilate the crop and give access to water and electricity.   In this case, counsel agreed that a starting point in the range of two and a half to  three  years  was  appropriate  (the  mid-point  of  Category  2  in Te Rewi).   Keane J considered that a starting point of three years’ imprisonment was warranted.

[19]     In my view, the number of plants (863 plants) is an aggravating feature of the offending, but the majority (699) were seedlings and had not reached maturity.  In addition, this operation is not as sophisticated as other cannabis operations – there was no hydroponics or temperature control.  For what it is worth, Mr Hockly said that he did not intend to sell the cannabis, but only intended to trade it for methamphetamine (presumably due to his addiction).  There was no other evidence of commerciality in this case (such as cash, or tick lists) suggesting Mr Hockly had been selling.  In my view, the starting point of three years three months was on the high side in light of the reviewed cases.  I consider that a starting point of no more than three years’ imprisonment was acceptable.

[20]     In relation to the double counting of the theft of electricity, this point can be disposed of shortly.  First, the Judge noted at [19](d) that the theft of electricity was “really allied to the sophistication, so I take care not to double count it”.  There was no double-count in any event.  Secondly, even if the Judge had considered the theft of electricity as an indicator of sophistication and an aggravating factor, I consider that would not be double counting.   The reason is that both add to the degree of culpability in different ways.

Uplift

[21]     The appellant appeals, secondly, on the basis that the uplift of three months to reflect his previous convictions was not justified.   Counsel says that Mr Hockly’s previous convictions are of little or no relevance because all his dishonesty convictions are more than 10 years old (the most recent occurring in 2001) when Mr Hockly was young (about 19 years of age or younger).  He has no previous drug convictions.

[22]     Section  9(1)(j)  of  the  Sentencing  Act  2002  provides  that  the  court  at sentencing must take into account the nature, relevance and number of previous convictions of an offender as a potential aggravating factor.

[23]     The length of time that has elapsed since the last relevant conviction will affect the weight to be given to previous offending.  Where the previous offending was many years earlier and has been followed by a reasonably constructive lifestyle, previous convictions may be given little weight or even disregarded.9  The lapse in time since the last offending will be of particular relevance where the previous offending occurred in the offender’s youth.

[24]     Mr Hockly has convictions for disorderly behaviour in 2001, driving with EBA in 2003 and driving a motor vehicle in a dangerous manner in 2005.   His dishonesty convictions did relate to offending which occurred in 2001 and earlier. But the Judge appears to have only taken into account the offences that occurred in

2001 and earlier in determining the uplift.10   In my view, the uplift to take account of

non-drug related convictions from 10 years ago was not justified.  It may have been open to the Judge to take into account the two offences from 2003 and 2005, but once again, they were not drug related and were still relatively old.  Overall, I do not consider that the uplift was warranted on these facts.

Guilty plea

[25]     At sentencing, the Crown submitted that a discount of 15 to 20 per cent only was appropriate because Mr Hockly’s guilty plea as not entered at first reasonable opportunity.  But in the summary of facts Mr Hockly “acknowledged to the attending police officers that he was growing cannabis in the garage”.  In addition, counsel for Mr Hockly argued that when he was interviewed by the police following the search, he accepted that he was responsible for the growing operation.  On this basis it was

argued that pleas were intimated on the record at a very early stage, but that there

9  New Zealand Police v Galyer [2012] NZHC 1806; Henry v Police HC Rotorua CRI-2010-463-58,

31 August 2010; R v Wilson HC Invercargill CRI-2008-017-483, 31 March 2009; R v Williams

CA190/90, 16 October 1990.

10 See [5] where the Judge sets out the relevant previous convictions.

were delays in entering plea because of discussions over the potential yield of the crop and the value of the electricity stolen.

[26]     In  R  v  Hessell,  the  Supreme  Court  considered  the  implications  of  the resolution of disputed facts on the discount available for a guilty plea:

[27]      As  well,  the  Court  of  Appeal’s  approach  does  not  allow  for  a reduction where a plea is entered only after resolution of disputed facts. The Court of Appeal’s expectation is that defendants should plead guilty where their disagreement with the prosecution’s case is not about their guilt of the offence but relates to the prosecutor’s statement of facts. This, it is said, should be left to a subsequent disputed facts hearing. If at that hearing the sentencing Judge rejects the defendant’s view of the facts, the appropriateness of giving a reduction for the plea will be reviewed. The last step is less objectionable. If the circumstances indicate that a defendant is not fully prepared to acknowledge guilt at the outset, that must be factored into the sentence. But the requirement that a defendant must always plead guilty before entering the disputed facts process to get the maximum discount is too rigid. The better course is to permit sentencing Judges to assess the value of the plea in the particular circumstances, without a rigid requirement for application of a scale of discounts dependent on the exact timing of the plea.

...

The  only  way  in  which  the  many  variable  circumstances  of individual cases which are relevant to a guilty plea can properly be identified is by requiring their evaluation by the sentencing Judge, and allowing that Judge scope in light of the conclusion he or she reaches to give the most appropriate recognition of the guilty plea in fixing the sentence.

[27]     In my view, Mr Hockly should be entitled to the full discount for his guilty pleas because he effectively admitted guilt at the outset.  His guilty plea was delayed was due to disputes over the yield and value of the electricity stolen, factors that had the capacity to affect sentence.  I do not consider that delay in guilty plea reflected a refusal to accept responsibility for the offending.

Was the sentence manifestly excessive?

[28]     In this case, the Judge imposed a sentence of two years and four months’ imprisonment.  From a starting point of three years and three months’ imprisonment, he uplifted the sentence by three months to take account of Mr Hockly’s previous

convictions,  reduced  it  by  six  months  to  take  account  of  his  remorse  and commitment to rehabilitation and a further eight months to reflect his guilty pleas.

[29]     The discount for remorse and efforts at rehabilitation was about 15 per cent. In my view, the starting point of three years and three months coupled with the uplift for previous convictions made the final sentence of two years and four months’ imprisonment manifestly excessive.  Although it could be said that the discount for remorse and efforts at rehabilitation was generous, it was not so generous in my view to cancel out the overly stern starting point and uplift.  In my view, a starting point of three years would have been at the upper end of the range available based on the cases reviewed.   An appropriate end sentence would be no more than two years’ imprisonment after allowing nine months deduction for guilty plea and a moderate three months for remorse and rehabilitation.

[30]   The appeal will be allowed accordingly and a sentence of two years’ imprisonment substituted.   Leave is given to the appellant to apply to the District Court to cancel the sentence of imprisonment and substitute a sentence of home detention if the relevant requirements of the Sentencing Act are met.   Because the Provision of Advice to the courts recommended imprisonment, there is no home

detention appendix and I have no information upon which to make such a judgment.

Williams J