Police v Clothier

[2012] NZHC 2348

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2012-031-149 [2012] NZHC 2348

NEW ZEALAND POLICE

v

DEAN AARON CLOTHIER

Hearing:         12 September 2012

Counsel:         A Read for Crown

S Isac for the Accused

Sentence:       12 September 2012

SENTENCING REMARKS OF MALLON J

Introduction

[1]      Mr  Clothier,  you  need  to  stand  while  I  sentence  you.    You  appear  for sentencing today having pleaded guilty to one charge of cultivation of cannabis[1] and one charge of theft of electricity.[2]

[1] Section 9(1) of the Misuse of Drugs Act 1975 (maximum penalty of seven years’ imprisonment).

[2] Section 219 and 223(b) of the Crimes Act 1961 (maximum penalty of seven years’ imprisonment).

[2]      You are here in the High Court for sentencing because the District Court has declined jurisdiction to sentence you.

NEW ZEALAND POLICE v CLOTHIER HC PMN CRI 2012-031-149 [12 September 2012]

[3]      On 2 February 2012, the police executed a search warrant at your address. You were alone at the address.   The police could smell cannabis and asked you where it was.  You showed the police a small cannabis plant hanging in a cupboard in a bedroom.   You also showed the police a packaged bag of cannabis weighing

28 grams, in your backpack in the kitchen at the address.   That cannabis had an estimated street value of $300.  The police also discovered a set of digital scales on the kitchen table.

[4]      The police then asked you if there was any cannabis growing at the address. You told them that there were a few plants in the garage.  In the garage, the police discovered a three stage growing set up.   The main growing area was lined with reflective material.  The room was powered by six ballast transformers running five fans and six grow lamps under metal hoods.   In this area there were 58 cannabis plants.  These plants were approximately 80 centimetres tall and were at least four weeks away from full maturity.  The police estimated the yield of these 58 plants to be about one ounce of cannabis per plant with a total street value of about $17,400.

[5]      There was also a second, but smaller, growing area within the garage.  This was separated from the main growing area by a piece of black polythene.  The area was powered by another ballast transformer running a grow lamp with a hood.  In this area there were a further 29 cannabis plants in the early stages of development. These plants were cloned from a mother plant located nearby.  A polystyrene box containing 37 seedlings, with ultra violet light piercing the top, was located under a table.

[6]      You  admitted  growing  cannabis  for  your  own  personal  use.    You  also admitted that you had been growing at the address for five months.

[7]      The police noted that the electricity meter at your address had been tampered with.  You admitted that you had done that.  An electrical technician estimated that over a five month period, you would have used about $1,400 worth of electricity during that time to cultivate the cannabis.

[8]      I turn now to your personal circumstances. You are 37 years of age. You live in Levin and are currently unemployed and have been for the past eight years.  You are a single father to your son who is nine years old.

[9]      You have a number of previous convictions but almost all of them are for offending more than 11 years ago and none of them are for drug offending.  In 2008 you were fined for careless use of a motor vehicle.  In June 2011 you were charged with excess breath alcohol and careless use, for which you were sentenced earlier this year to five months’ community detention and 100 hours of community work. There have been no issues with your compliance with that sentence.

[10]     You told the pre-sentence report writer that at the time of your offending you were addicted to cannabis and had poor finances.   You said you were depressed about your excess [breath] alcohol conviction, and were often smoking at least four to six  grams of cannabis a day and sometimes a lot more.   You have recently completed drug counselling.   You told the pre-sentence report writer that the counselling had been very beneficial and that you have been drug-free for many months now. You have also expressed a willingness to engage in further counselling.

[11]     You were assessed by your pre-sentence report writer as having a low to medium risk of re-offending.

Purposes and principles

[12]     In  sentencing  you,  I  am  required  to  take  into  account  the  purposes  and principles of sentencing set out in the Sentencing Act 2002.  Of particular relevance in drug offending is deterrence.   Consistency with offenders convicted of similar offending is also important.   Depending on the circumstances, a sentence may be aimed at rehabilitation.  I approach your sentence by first considering what sentence for the nature of the offending as a whole would be appropriate, before taking into account any aggravating and mitigating factors personal to you.

[13]     In setting the starting point for cannabis offending, guidance is provided by the  Court  of Appeal’s  decision  in  R  v Terewi.[3]      The  Crown  submits  that  your offending  is  within  the  middle  of  category  two  of  that  case.    It  says  that  an appropriate starting point is between three and three and a half years’ imprisonment. On your behalf, Mr Isac submits that your offending falls within the upper end of category one or the lower end of category two of that guideline case and that an

[3] R v Terewi [1999] 3 NZLR 62 (CA).

appropriate  starting  point  is  between  one  and  half  and  two  and  a  half  years’

imprisonment with a small uplift for the theft of electricity.

[14]     I  am  going  to  take  a  starting  point  of  two  years  and  three  months’ imprisonment for the offending.  I take that starting point because I consider that any commercial element to your offending was relatively small. Your counsel accepts on your behalf that there was commerciality but only to a limited extent.  I accept that you were a heavy cannabis user and this was partly why you were growing the cannabis.  However, the number of plants and the fairly sophisticated three staged growing operation makes it very unlikely that it was all for you.  The 28 grams that was packaged does not necessarily indicate that it was intended for sale.   But the scales indicate some supplies were likely to have been made.  There was no evidence of cash or tick lists found or any other indications of any profit being made.  The

cases I have reviewed,[4] that are most comparable[5] have taken starting points ranging

[4] The Crown referred to R v Young HC Palmerston North CRI-2006-54-3336, 8 December 2006;

R v Parrott HC Rotorua CRI-2010-070-4119, 2 February 2011; R v Corcoran HC Blenheim CRI-2006-006-948, 8 November 2006. The defence referred to R v Latham [2007] NZCA 552; R v Pearce HC Whangarei CRI-2008-088-2980, 9 December 2008; R v Weir HC Auckland

CRI-2011-057-1203, 18 October 2011. In addition I have reviewed New Zealand Police v

Abbott [2012] NZHC 50; R v Warren HC Hamilton CRI-2011-073-184, 13 September 2011;

R v Wallace HC Whangarei CRI-2009-027-3138, 18 March 2010; New Zealand Police v Lund HC Palmerston North CRI-2008-054-1619, 19 September 2008; R v Fraser HC Wanganui CRI-2010-083-980, 26 October 2010; R v Baird HC Nelson CRI-2010-042-1994, 17 August

2010.

[5] R v Latham; R v Pearce; R v Weir; New Zealand Police v Abbott; R v Warren; R v Wallace;

New Zealand Police v Lund; R v Fraser; R v Baird.

from 18 months to three years.   The comparative sophistication and the taking of electricity is similar to a number of the cases, but the number of plants and the absence of any other indicia of commerciality puts this below the top end of this

range.

[15]     I turn now to the factors personal to you.

[16]     I consider that your previous convictions do not warrant an uplift in your sentence.  None of the convictions involved drug offending and almost all involved offending a long time ago.

[17]     The Crown  submits  that  it  is  aggravating that  you  were on  bail  for  the careless  use  and  excess  breath  alcohol  charges  at  the  time  you  were  growing cannabis.  I do not consider it necessary to uplift the starting point because of this. The offending is  different  in  kind,  and  the fact  that  you  were on  bail  is  more coincidental than aggravating.

[18]     You are entitled to a discount for your guilty plea, which was entered at the first reasonable opportunity. Applying a discount of 25 per cent for that, before other factors are taken into account, would mean an end sentence of around 21 months’ imprisonment.    Because  that  is  a  short-term  length  of  imprisonment,  I  turn  to consider whether a sentence of home detention should be imposed.

[19]     I consider that in your case, the purposes of sentencing can be met by a sentence of home detention.   The prospect of imprisonment has obviously been a wakeup call for you.  You have your son to look after.  Your efforts to deal with your cannabis use are to your credit.  It is also to your credit that, after your son was born, you stopped offending, essentially, until now.  It seems that your son is providing a very strong incentive for you to stay out of trouble.  That bodes well for you and for your role as a father to your son.   You have the support of the occupants at the proposed address and that address is suitable for electronic monitoring.

Sentence

[20]     I therefore sentence you to 10 months’ home detention at the stated address in the pre-sentence report with the following special conditions as recommended by the writer of that report:

(a)       To  complete  drug  counselling  treatment  to  the  satisfaction  of  the

Probation Officer and Service Provider;

(b)Not to consume or possess illicit drugs for the duration of your home detention sentence;

(c)       To complete a parenting course or education to the satisfaction of the supervising Probation Officer and Service Provider; and

(d)      To  undertake  budgeting  advice  or  assistance  as  directed  by  the

Probation Officer.

[21]     An order is also made for the forfeiture and destruction of the cannabis, growing material and equipment obtained during the search of your address.  And I make no reparation order in respect of the electricity.  Your financial situation makes that unrealistic.

[22]     Stand down.

Solicitors:

Crown Solicitors Office, Palmerston North

Mallon J