Police v Abbott
[2012] NZHC 50
•2 February 2012
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2011-054-3393 [2012] NZHC 50
NEW ZEALAND POLICE
v
BLAIR NORMAN ABBOTT
Hearing: 2 February 2012
Appearances: M Davie for the Police
P Coles for the prisoner
Judgment: 2 February 2012
SENTENCING NOTES OF CLIFFORD J
[1] Mr Abbott you appear for sentencing here today, after the District Court declined jurisdiction to sentence you, on charges of cultivation of cannabis (s 9
Misuse of Drugs Act 1975), and threatening to kill (s 306 Crimes Act 1961). The cannabis charge involves a maximum penalty of seven years’ imprisonment, as does the charge of threatening to kill. You pleaded guilty to both of these charges at an early stage.
Facts
[2] At the time of your offending you were living with Ms Maria Millan at
Makino Road in Feilding. You and Ms Millan had been in a relationship on and off for seven years, although by this time you were occupying separate bedrooms.
POLICE V ABBOTT HC PMN CRI-2011-054-3393 2 February 2012
[3] Ms Millan discovered that you were growing cannabis in your bedroom. You and Ms Millan had a number of arguments about that and she told you to remove the plants but you refused.
[4] On 2 December 2011, Ms Millan again argued with you about the cannabis, at which point she told you that if you did not leave she would call the Police. You said to Ms Millan “I will kill you then I will use dirty tactics. I will say the cannabis is yours”.
[5] After leaving the address for a short period of time, Ms Millan returned and once again told you that she was going to call the Police. At this point you replied “If you call the Police I will slit your throat from ear to ear”.
[6] Ms Millan then left the address and called the Police.
[7] When searching the address, the Police located a hydroponic cannabis growing operation of some sophistication in your bedroom comprising;
(a) three mature plants growing under artificial light in the wardrobe;
(b)140 plants (approximately 8cms in height) growing in a hydroponic trough; and
(c) forty four plants (approximately 15cms in height) growing in pots together with miscellaneous equipment relating to growing cannabis indoors, including grow lights, compost, transformers, pots, heat pad, hydroponic trough, piping and water pump, thermometer and fertiliser.
[8] Thus, in total, there were 187 plants.[1]
Personal circumstances
[1] I note that in the sentencing notes I read in Court I mistakenly referred to there being four plants of approximately 15cms in height, and a total of 147 plants overall. I do not consider that error to be material and have corrected these sentencing notes accordingly.
[9] I turn to your personal circumstances. You are 37 years old and currently reside – pursuant to bail conditions – at your parents’ home in Fielding with your 12 year old daughter.
[10] As I assess matters, there are three elements of your personal circumstances that are of particular relevance to the decision I must make as regards your sentence.
[11] First, it is clear you have had a long and, as your pre-sentence report writer describes it, a very harmful pattern of drug use. You scored what was described as the maximum on the drug abuse test. You described abusing a number of drugs, namely cannabis, valium, speed, methamphetamine, codeine, horse tranquillisers, sleeping pills and your own anti-psychotic medication. You yourself describe an historic drug use pattern of taking stimulants to stay awake for up to six days a week and then taking depressants to make you sleep. You reported beginning drug use at the age of 11 years. As you assess matters, your current offending was an outcome of your drug use and dependence. That would indeed appear to be the case.
[12] Secondly, you have a previous conviction for drug offending, and you have a previous conviction for violence against Ms Millan. In June 2004 you received a sentence of imprisonment for the cultivation of cannabis and in October 2010 you were sentenced to 40 hours community work on a charge of male assaults female involving Ms Millan. Disturbingly, the Police report a number of family violence incidents which they have attended arising out of your actions towards Ms Millan.
[13] Thirdly, it is clear to me that, following these charges, you have been successful in efforts – both in terms of your own voluntary actions at the start and then pursuant to bail conditions – to address your drug addiction and dependency problems. I refer, in particular, to the reports which have been provided by the programme facilitator of the Mental Health and Addictions group at Mash Trust. In a letter of 26 January 2012 the programme facilitator confirms that you successfully completed a nine week residential course and that you are currently enrolled in that course again, this time voluntarily attending the course from within the community.
I note the following comments which have been provided to the Court because I
think they are important:
So far Blair has completed 2 weeks of this new course. He has continued to take an excellent part in all facets of this and continues to show a real desire to continue the journey he started in 2011. He has jumped at all opportunities of new learning as well as being a real support to all new people on the course.
It has been a real pleasure to have Blair attending and to watch him in the journey of turning his life around in a very positive way. Support will be very important for Blair in the foreseeable future and up to now he has been the first to ask, and ensure, that the support is there.
[14] As Mr Coles put it to me this afternoon, we often hear of people attempting rehabilitation. I think these are very positive comments that someone is actually succeeding with it.
[15] I have also been provided with a report from the stopping violence programme you have been attending weekly since October. Your facilitator at Te Manawa Services states that you have attended regularly and have participated with willingness and intent to change. She also comments that you have shown honesty about your past behaviour and continue to show determination to maintain both healthy and respectful changes.
[16] A letter from your family also confirms both the progress they have seen in you in recent times, and the support they are willing to provide to you.
[17] I note however that the writer of your pre-sentence report considered that a sentence of imprisonment was the appropriate sentencing outcome, and clearly the Judge in the District Court – by declining jurisdiction – indicated that a sentence of more than two years’ imprisonment may be what is called for.
Submissions
[18] On your behalf and with particular reference to the steps you have taken to address your drug problems, Mr Coles argues for a sentence of home detention. In doing that he draws my attention to matters which can be seen as indicating that your
offending is less serious than that of Johansen,[2] a recent case which was dealt with in the High Court here in Palmerston North, where a sentence of imprisonment in excess of two years was imposed for cannabis cultivation offending. Mr Davie argues for a sentence of imprisonment, as I take his submissions in the round, somewhere in the vicinity of two and a half years.
[2] R v Johansen HC Palmerston North CRI-2011-054-002800, 13 December 2011.
[19] On the question of home detention, Mr Davie emphasises the rarity of a repeat offender such as you being given a sentence where home detention could be considered or where in fact, even if considered, it would be ordered.
Sentencing Discussion
[20] To sentence you today, I have first to identify what is called the starting point sentence. That is the sentence which takes account of the nature of your offending itself, that is what you did. I then have to consider factors personal to you which might increase or reduce that sentence. Finally, I have to take account of your guilty pleas as the last step in this sentencing process.
[21] In setting the starting point for cannabis offending, guidance is provided by the Court of Appeal. The case is Terewi.[3] Your offending is what is known as small- scale offending for a commercial purpose. The starting point for such offending is generally between two and four years. To my mind, your offending does lie at the less serious end of that range. I view the appropriate starting point as two years and six months’ imprisonment. In reaching that conclusion, and with reference to the various cases that were referred to me, I balance here the technical sophistication of some aspects of your cannabis growing operation, in terms of the hydroponic and
related equipment, with the fact that only three plants had grown to maturity and that the operation itself was carried out in your bedroom, and not in a separate specially designed space as is so often the case.
[3] R v Terewi [1999] 3 NZLR 62 (CA).
[22] A small uplift to that starting point is called for to take account of your previous conviction. I note that was in 2003 and is now therefore some time ago. I
think two months is a sufficient uplift.
[23] In my view it is appropriate that your threatening to kill conviction be sentenced concurrently with your cannabis offending, as it is closely related to that offending. Taking that approach, I think that an additional three month uplift is required to recognise that offending. Threatening to kill is always a concerning type of offending. At the same time, I accept Mr Coles’ submission that here it may well have arisen very much out of the drug offending itself.
[24] On that basis, I arrive at a starting point sentence of two years and eleven
months’ imprisonment.
[25] Turning now to mitigating factors, I have concluded that what I assess to be the significant and successful efforts you have made at addressing your drug dependency, addiction and violence problems represent a significant mitigating factor. In my view, the successful efforts you have made – after what would appear to have been a very long period of drug dependency and addiction – show not only remorse for your offending, but a significant commitment to changing the pattern of your life. I consider that a deduction from that starting point of two years and eleven months of four months is appropriate to recognise those factors.
[26] That ends up with a starting point sentence before considering your guilty plea of two years and seven months.
[27] Your guilty plea here, given that what I think is accept was at the earliest opportunity, entitles you to a discount of 25 per cent, rounded results in a discount of eight months from the starting point sentence of two years and seven months. That results in an end sentence of one year and eleven months’ imprisonment.
[28] Being 24 months or less, that is a sentence of short duration, and I have jurisdiction to consider whether or not home detention would be the appropriate sentence.
[29] In these circumstances, I have concluded that home detention is the appropriate sentence. I say this particularly in light of your efforts at rehabilitation and the fact that those efforts will be able to be continued during that sentence of
home detention. As was recognised by the Court of Appeal in R v Hill,[4] this is the type of case in which the Courts should be prepared to sentence to home detention in order to achieve the social and individual benefits that home detention offers. In reaching my decision as to the appropriateness of home detention, I have paid particular attention to those observations of the Court of Appeal, and to similar remarks in the case of Iosefa.[5]
[4] R v Hill [2008] NZCA 41.
[5] R v Iosefa [2008] NZCA 453.
[30] Your parents’ address at 5 Mountford Grove, Feilding has been assessed and found suitable for home detention. I therefore sentence you to home detention for eleven months at that address, as well as to the special conditions suggested by the pre-sentence report writer.
[31] I think that, however, in this situation, a sentence of community work is also called for, particularly to denounce and hold you accountable for your offending, given the previous offending both of cannabis and of violence against Ms Millan. I therefore also sentence you to 60 hours community work.
[32] Therefore, Mr Abbott, you are:
(a) to travel directly to 5 Mountford Gove, Feilding after sentencing to await the arrival of a Probation Officer and Security Officers and to reside at that address for the duration of eleven month sentence unless given prior written permission by your Probation Officer;
(b)to attend and complete any drug, alcohol or domestic violence programmes that may now be required by your Probation Officer;
(c) to abstain from consumption and/or possession of alcohol and non- prescription drugs for the duration of home detention;
(d)there was some question of dogs at the dwelling – any dogs are to be controlled at all times so that they do not interfere with access to the
property by the Probation Officer, the monitoring company or the
Police; and
(e) to undertake 60 hours of community work.
[33] You will also be subject to the standard post-detention conditions for a period of 12 months and Mr Coles can explain what that means to you.
[34] There will be an order for forfeiture as sought by the Police.
[35] I am not sure whether it is the pre-sentence report writer, or the Police, who suggest that you should be subject to ongoing special conditions. I have on balance decided not to impose such conditions. To do so I have to be satisfied there is a significant risk of reoffending. The basis for the sentence of home detention I have imposed, in terms of my having jurisdiction to impose such a sentence because of the term of imprisonment that I otherwise arrived at, essentially depends upon the credit I have given to you for the rehabilitative efforts you have made. If I was not persuaded by the success of those efforts, and therefore the way in which you are addressing the risk of reoffending, I would not have sentenced you to home detention in the first place, and for that reason I do not think special conditions are appropriate.
[36] Mr Abbott, it goes without saying that if you do fall back into your old ways, and reoffend again in a similar manner as you have been sentenced for today, then a sentence of imprisonment, and one greater than was indicated today, would, at least by my assessment, be inevitable. You need to bear that in mind.
[37] I hope that with the support of your family you do build on the progress you have made to date and that you take this opportunity to put your drug abuse and dependency problems behind you, once and for all.
[38] Mr Abbott, you may stand down.
“Clifford J”
Solicitors:
Crown Solicitor, Palmerston North for the Crown ([email protected]). P S Coles, Palmerston North ([email protected]).