McColl v Police HC Wellington CRI 2010-443-19

[2010] NZHC 2329

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-443-000019

BETWEEN  CRAIG EDWARD MCCOLL Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         28 September 2010

Counsel:         L A Scott for the Appellant

J A Ongley for the Respondent

Judgment:      28 September 2010

ORAL JUDGMENT OF WILD J

[1]     Mr McColl appeals against a sentence of one year and eight months imprisonment imposed on him in the Hawera District Court on 2 August by Judge Roberts.   He had pleaded guilty to one charge of cultivation of cannabis and one charge of possession of cannabis for supply, both laid indictably.

[2]      Mr McColl was farming a large property which he leased from his parents in the back blocks of South Taranaki.  He was living on the property with his partner and her four children.  His cannabis growing operation was discovered by the Police in February this year, as a result of aerial surveillance.  On closer examination the Police found a plot of 15 large cannabis plants.  After executing search warrants they located  cannabis  and  scales  in  the  roof  cavity  of  the  shearers’  quarters  on  the property.  In an abandoned house on the property, they found further cannabis being dried with gas heaters.  In total the Police found 4,315 grams, that is 154 ounces, in

the buildings or growing on the land.   If sold on the open market that was worth

MCCOLL V NEW ZEALAND POLICE HC WN CRI 2010-443-000019  28 September 2010

around  about  $45,000  if  sold  in  ounces,  somewhat  less  if  sold  in  one  pound quantities.

[3]      The Judge considered three features as aggravating.   First, the degree of premeditation.  The Judge said to Mr McColl when sentencing him:

[25]      ... this was a deliberate course of action on your part with the focus of securing profit.

Second, the value of the yield and, third, the level of sophistication.  The Judge said:

[27]      ...  The fact that the crops are fenced and the drying arrangements with  gas  heaters  positioned  in  an  otherwise  disused  building  certainly suggests to me the efforts you went to were not that of the casual cultivator.

[4]      In the light of those three aggravating factors the Judge placed the offending in band 2 of the Court of Appeal’s guideline decision R v Terewi [1999] 3 NZLR 62, and adopted a starting point of two and a half years imprisonment.

[5]      As  mitigating  factors,  the  Judge  took  into account  Mr  McColl’s  lack  of previous convictions and his early guilty pleas.  Having factored those in, he arrived at his end sentence of one year eight months imprisonment.

[6]      As to home detention, the Judge gave the following reasons why it was not an option:

[32]     I do, however, need to address the issues relating to a potential sentence of home detention.  I repeat, I do not regard this as an option given these reasons:

a)Your offending was serious.  It was a significant operation that you were undertaking.

b)Your offending was committed on a farm where initially I gathered you intended to live but certainly intend to work were you able to be accommodated with a sentence of home detention.  I accept that that in itself is not a bar given some of the Higher Court determinations.

c)There  are  no  rehabilitative  factors  to  be  addressed  within  that sentence.

d)While you have no previous convictions there is no demonstrated remorse.

[7]      The appellant advances two grounds of appeal.  First, that the sentence of one year eight months imprisonment imposed is manifestly excessive, in particular because  the  Judge  has  not  in  fact  allowed  for  factors  personal  to  Mr  McColl, although he had indicated he intended to.  Secondly, that the Judge erred in declining to impose a sentence of home detention.   Counsel for Mr McColl argues that the Judge placed insufficient weight on factors in support of home detention and was wrong to hold that relevant sentencing principles could not be met by an electronically monitored sentence.

[8]      I deal first with the submission that the sentence is manifestly excessive.  As I have  said,  the  nub  of  this  ground  is  that,  having  referred  to  mitigating  factors personal to the appellant, in particular his lack of previous convictions and the fact that he was in full time employment working on the property he leased from his parents, the Judge did not actually make any allowance for that.  The Judge did give Mr McColl the full one-third allowance for his early guilty pleas.

[9]      This point is sound.  As the Court of Appeal observed in R v Howe [1982] 1

NZLR 618 (CA) at 629, offenders who have shown themselves as generally law abiding citizens of good character are usually entitled to invoke their creditable record  in  mitigation  when  they come  before  the  Courts,  even  for  quite  serious offences.  That applies exactly to Mr McColl.  Taking the Judge’s starting point of two and a half years (30 months) imprisonment, I consider he should have allowed Mr McColl a discount of 10% or three months for the personal mitigating factors he identified.  That would reduce the sentence to 27 months imprisonment.  Applying then the full one-third discount for his early pleas, that further reduces the sentence to 18 months imprisonment.

[10]     I turn to the second ground of appeal, that the Judge erred in not imposing a sentence of home detention.  That involves the exercise of a sentencing discretion in terms of s 15A of the Sentencing Act.  Thus, as Ms Scott recognised, she needs to demonstrate that the Judge erred in principle, overlooked relevant considerations, took into account irrelevant ones or was plainly wrong in his decision.  There is a great  deal  of  case  law  in  this  area.    As  early  as  Terewi,  the  Court  of  Appeal expressed the view that in cases of commercial drug dealing the power to suspend a

prison sentence, in other words to sentence the prisoner to home detention, should be exercised only in exceptional cases.  I accept that in some cases home detention may be appropriate.   For example, it might apply where there are rehabilitative considerations, as in R v Hill [2008] NZCA 41; [2008] 2 NZLR 381. It may not be the case where the proposal is that the prisoner be detained in the home where the drug offending occurred, as in R v Worthington CA481/05, 23 February 2006.

[11]     In  the  present  case  I  accept  that  a  different  Judge  may  well  have  been prepared to impose a sentence of home detention.    Indeed, that was the recommendation in the probation report, where the proposal was that the appellant be detained in his parents’ home.  What the Court said in R v D [2008] NZCA 254 at [66] really applies here:

In a case like this, the sentencing Judge is required to form a judgment on whether   imprisonment   is   necessary   or   home   detention   can   respond adequately to the seriousness of the offending. The closer one gets to the dividing  line,  the  more  difficult  it  becomes  to  articulate  reasons  for preferring one approach to the other. In such cases, the view of a sentencing Judge  from  the  jurisdiction  in  which  crimes  of  the  type  in  issue  are frequently tried assumes greater weight. He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another. The broader the base of similar offending a particular Judge sees, the more likely it is that the chosen sentencing response will be appropriate.

[12]     In R v Walpole [2007] NZCA 89 the Court of Appeal granted leave to apply for home detention after it was found that the Judge had erred in taking the view that unless the appellant could show that home detention was necessary for his rehabilitation it would not be granted. Walpole is a similar case.  The appellant had been sentenced to 18 months imprisonment.  He had pleaded guilty to one charge of cultivation of cannabis, and one charge of unlawful possession of a firearm.   The Police had located 25 cannabis plants growing in his garden, plus quantities of cannabis leaf and snaplock bags.  A .303 rifle was found in his shed.  As the Judge erred in exercising his discretion, the Court of Appeal re-exercised it.  Importantly, in that case, the appellant had expressed remorse, and considered that the consequences of the offending were now a significant deterrent to him.

[13]     Another case is O’Mahoney v Police HC Christchurch, CRI 2007-409-141, 3

August 2007, where Panckhurst J dismissed an appeal against the refusal to grant

home detention for a conviction of cannabis cultivation at the bottom end of band 2 of Terewi.   The Judge considered that it was not a clear cut case for leave.   The appellant had eight previous cannabis related convictions.   In the past he had not been compliant with community based sentences.  In that light the Judge considered the appellant’s profile was not such as to indicate that it should predominate at the expense of deterrence and denunciation.

[14]     I have already referred to the four reasons Judge Roberts gave for not being prepared  to  sentence  the  appellant  to  home  detention.     Despite  Ms  Scott’s submissions to the contrary I consider that each of them is a valid consideration, and that in combination the Judge was entitled to exercise his discretion in the way he did.   I do not consider he made any error in sentencing principle, or that he was unduly swayed by any of the considerations he identified.

[15]     In the result, the appeal is allowed in part.   The sentence of one year and eight months imprisonment imposed by the Judge is quashed.   A sentence of 18 months imprisonment, that is one year and six months, is substituted.  The ground of appeal challenging the Judge’s refusal to impose a sentence of home detention, is dismissed.

Solicitors:

Crown Solicitor, Wellington for the Respondent