Hooper v Police
[2012] NZHC 804
•27 April 2012
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2012-443-10 [2012] NZHC 804
BETWEEN BRENT JOHN HOOPER Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 27 April 2012
Counsel: K Pascoe for Appellant
S A Law for Respondent
Judgment: 27 April 2012
JUDGMENT OF BREWER J
SOLICITORS
Nicholsons (New Plymouth) for Appellant
C & M Legal (New Plymouth) for Respondent
HOOPER V POLICE HC NWP CRI-2012-443-10 [27 April 2012]
[1] Mr Hooper appeals against a sentence of 12 months’ imprisonment imposed
on him by Judge AC Roberts in the District Court at New Plymouth on 7 March
2012. Mr Hooper had pleaded guilty at the first available opportunity to six charges relating to the importation of cannabis seed, possession of cannabis and cannabis related items, and cultivation of cannabis. All charges were laid summarily.
[2] The basis of the appeal is that the sentence is manifestly excessive. The main grounds of appeal are, firstly, that the District Court Judge misdirected himself as to the maximum penalty for one of the charges and, secondly, that he erred in excluding home detention as a sentencing option.
[3] There is no doubt that the District Court Judge misdirected himself as to the maximum sentence for the charge of possessing equipment or material capable of being used for the cultivation of cannabis. This charge was brought under s 12A(2)(a) of the Misuse of Drugs Act 1975. The caption sheet for the summary of facts recorded that the penalty for this charge was five years’ imprisonment. No doubt the District Court Judge, in the midst of a busy list, simply took the caption sheet at face value. However, five years’ imprisonment is the maximum sentence for a person convicted on indictment. If a person is convicted summarily then the maximum term of imprisonment is one year. Alternatively, a fine not exceeding
$1,000 can be imposed. A fine not exceeding that amount can also be added to a term of imprisonment.
[4] It is, in any event, my task to approach an appeal of this sort de novo. Accordingly, I am going to start again and consider what would be an appropriate sentence. In doing so, I will have regard to the factors which the District Court Judge identified as being significant in the determination of the sentence.
[5] Mr Hooper came to the attention of the Police on this occasion because a package containing 20 cannabis seeds of various varieties was seized by Customs at the Auckland International Mail Centre on 27 September 2011. They were addressed to Mr Hooper. A subsequent search of Mr Hooper’s property located a further 232 cannabis seeds contained within 36 brand marked packets imported from various European countries. Those seeds together with the 20 seized at Auckland comprised
the subject matter of the charge of importing cannabis seed. The maximum period of imprisonment for that charge is one year.
[6] Also at the appellant’s house was a ziplock bag containing 521 cannabis
seeds. The maximum term of imprisonment for possessing that seed is three months.
[7] In and about the house was a total of 1247 grams of cannabis plant material, having an estimated value of just under $1,000. The maximum sentence for possessing that material is a term of imprisonment of three months.
[8] At the back of a shed situated on the property was found two rooms fitted out for the growing of cannabis. The walls were lined with reflective polythene and there were light fittings plugged into lighting control boxes. The rooms had clearly been used for the cultivation of cannabis because there was partially dried cannabis leaf and dirt on the floors. Large amounts of liquid plant fertilizer, flowering stimulants, granular plant food, plant fungicides, slug bait and rooting hormones were located in the shed. In addition, two 20 litre containers for isopropyl alcohol were found, one of which still contained a small amount of the liquid. Isopropyl alcohol is used for the manufacture of cannabis resin from cannabis plant material. The maximum sentence for possession of equipment for the production or cultivation of cannabis is, as I have said, one year.
[9] The appellant was also found to be growing nine cannabis seedlings in another location on the property. It was estimated that if the plants had grown to maturity they could be worth perhaps $9,000. The maximum term of imprisonment for cultivating cannabis is two years’ imprisonment.
[10] Finally, at various places in the property was found cannabis resin. The total amount located was 37 grams, having an estimated value of $3,700. The maximum term of imprisonment for possessing cannabis resin is three months’ imprisonment.
[11] I record at this point – because it is of pivotal importance – that the Police accept the appellant had possession of the materials I have referred to and was cultivating the nine seedlings for his personal use and not for any commercial gain.
[12] I take the lead charge as being the cultivation of cannabis simply because it carries the highest maximum sentence. The leading case is R v Terewi.[1] Ms Pascoe submits that the cultivation comes within category 1; namely, the growing of a small number of cannabis plants for personal use. Offending in this category is almost inevitably dealt with by a fine or other non-custodial sentence. However, where there have been supplies to others on a non-commercial basis and in more serious
[1] R v Terewi [1999] 3 NZLR 62 (CA).
cases or for persistent offending, a short prison sentence may be merited. I accept
Ms Pascoe’s submission in this regard.
[13] In this case, the District Court Judge inferred, irresistibly, that the cannabis would have been shared by the appellant with his partner. The partner was also charged with a related offence (permitting the premises to be used), pleaded guilty and has been sentenced. Both, in their interviews, professed a philosophical attraction to the use of cannabis and a rejection of the anti-cannabis laws.
[14] Be that as it may, if it were not for two factors I would readily conclude that a community based sentence was appropriate for this offending. Those two factors are the totality principle and the appellant’s previous drugs related record.
[15] Looking at the totality principle: standing back, the overall situation here is that the appellant had a cannabis related operation that went from seeds to propagation to cultivation through to harvesting and then, through manufacture or barter, the securing of cannabis resin. The presence of nine seedlings growing outside cannot be taken in isolation for sentencing purposes. Further, the importing of cannabis seeds is a serious matter. The District Court Judge did not regard it as being sufficiently separate to warrant cumulative sentencing and, on balance, I will treat it in the same way. But it is a distinctive feature of this offending. Logically there is only one reason to import cannabis seeds. It is to improve the potency of the end product. An importer reaches outside New Zealand to bring into the country material which has the potential to make worse a class C controlled drug. But, as
Ms Pascoe submits, I have to consider this in a non-commercial context.
[16] As to the appellant’s record, it is lengthy. It commences in 1982 and goes through to the end of 2009. Initially, his offending took the form of various types of dishonesty including burglary. In 1985 and 1986 he was convicted of various charges of violence. In later years his offending, in addition to driving offences, related to drugs. For the purposes of this sentencing I will have regard only to the convictions for drugs related offending. His first conviction was in 1987 for the possession of cannabis. In 1991 he was convicted of possessing cannabis seed and in 1992 he was convicted for smoking cannabis. In 1993 he was convicted of three charges, being cultivating cannabis, possessing cannabis and possessing cannabis oil. In 1996 he was convicted of possessing cannabis seed, possessing cannabis, possessing cannabis oil and producing cannabis oil. In 2009 he was again convicted of possessing cannabis.
[17] Looking at the totality of the offending, and the appellant’s record, I am of the view that a community based sentence cannot be justified.
[18] On the totality of the offending, I accept Ms Pascoe’s submission that a starting point of eight months’ imprisonment would be appropriate. That must be uplifted to reflect the appellant’s criminal record of drug offending. Again I accept Ms Pascoe’s submission that an uplift of two months would be appropriate, taking me to a total sentence at this stage of 10 months’ imprisonment. There are no personal factors which would reduce that overall starting point. Mr Hooper is, however, entitled to credit for his pleas of guilty – although it was inevitable in the circumstances that he would be convicted. Accordingly, I allow him a two months reduction, bringing the end point to eight months.
[19] I must now consider whether or not home detention should be imposed. There was a home detention annex to the pre-sentence report. Mr Hooper’s property is technically cleared. The problems are that it is the scene of the offending and his partner (who was convicted in relation to the offending) lives there also. It is a rural and isolated property. These factors go against the granting of home detention to that address.
[20] Ms Pascoe has told me in her oral submissions that there is an alternative address which might be considered. Apparently it is the address of a son of Mr Hooper’s. If I were to reject the address already considered by the home detention reporter, Ms Pascoe’s submission is that I should at least give leave for the alternative address to be considered for home detention.
[21] I am of the view that home detention should be granted. Mr Hooper has not previously been imprisoned for his drug offending. He has been in custody since
7 March 2012, so he has experienced incarceration. Although he has been setting a very bad example to his family, he is a family man and I am mindful of the need to keep him out of prison if I can within the principles and purposes of the Sentencing Act 2002. Home detention is not an easy option. It certainly contains elements of denunciation and deterrence. I am satisfied that in this case, following on from the period of incarceration already experienced by Mr Hooper, those elements are adequately addressed by a period of home detention.
[22] I have also decided, and I accept this is exceptional, to allow the period of home detention which I will impose to be served at the address already inspected by the Police. The Police are well aware of Mr Hooper’s history of drug offending. I will impose as a condition of his home detention that the Police must be permitted to inspect his home and property at any time during daylight hours. If they find any more cannabis then the home detention sentence will be revisited.
[23] Taking into account his period of imprisonment (which I will take as seven weeks), I will impose a period of home detention of two-and-a-half months (10 weeks) commencing today. The sentence will be imposed on each of the charges and each will be concurrent with the others. In imposing this period of home detention I am not seeking arithmetic precision. I am looking at the situation in the round.
[24] Accordingly, I allow the appeal. The sentence of 12 months’ imprisonment is quashed. On each of the charges I substitute a sentence of two-and-a-half months’ (10 weeks) home detention commencing today. I make it a special condition that Mr Hooper is to admit the Police to his property and permit them to inspect it for
drugs or drugs related materials at any time during daylight hours during the course of the period of home detention.
[25] Upon his release from prison, Mr Hooper is to go immediately to his address at 2601 South Road, Otakeho, South Taranaki. He is to remain there until he is fitted
with the electronic monitoring device. He is to give all co-operation in that process.
Brewer J
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