R v A HC Rotorua CRI 2009-087-1997
[2010] NZHC 36
•3 February 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI 2009-087-1997
CRI 2009-087-2000
THE QUEEN
v
A
A
Charges: Cultivating cannabis;
Possession of cannabis for supply; Selling cannabis;
Receiving
Plea: Guilty
Appearances: Sarah Simmers for Crown
Peter Attwood for L A
Roger Gowing for G A
Sentenced: 3 February 2010
9 months home detention
SENTENCING NOTES OF HARRISON J
SOLICITORS
Ronayne Hollister-Jones Lellman (Tauranga) for Crown
PT Attwood (Tauranga) for L A
Gowing & Co (Whakatane) for G A
R V A AND ANOR HC ROT CRI 2009-087-1997 3 February 2010
Introduction
[1] L and G A , you both appear for sentence today having pleaded guilty in the District Court at Whakatane to charges of cultivating cannabis, possessing cannabis for supply, selling cannabis and receiving. The maximum penalty for any one of those offences is eight years imprisonment.
[2] You were sent to this Court for sentencing because the District Court declined jurisdiction. In my judgment it was unnecessary for the District Court to take that step. Given the availability of a sentence of home detention, you should have been sentenced there because it would have been within the Court's power and authority. However, I must impose sentence today.
[3] Before doing so I acknowledge the presence here of your mother and members of your whanau who have travelled to the Court to be with you today and who provide aroha and support. It means a lot to a sentencing Judge to see the wider whanau and friends who come to provide encouragement to those who are being sentenced. It gives some hope and encouragement for your rehabilitation.
Facts
[4] I must deal first with the facts. They are not in any material dispute.
[5] On 23 September 2009 members of the police searched the premises you were occupying. In a sleep-out in which you both resided they found three cannabis plants between three and seven feet high in plastic planter bags; a 400 watt fluorescent light; a timer; a transformer box; a fan; four 10 cm high cannabis seedlings; magazines and books regarding the cultivation of cannabis; growth additives and fertilisers; 10 cannabis bullets; tin foil rolls; significantly, $160 cash in
$20 denominations; 60 grams of loose cannabis; and a .22 semi-automatic marlin rifle and scope.
[6] Both of you admitted selling the cannabis over a period of at least seven months. Mr L A maintained that he earned around $120 a week from the
activity; Mr G A said that his earnings were about double that. The police estimated that you have earned a total, each of you, of between $9,000 and $12,000 from your cannabis cultivation and selling activities.
Starting Point
[7] Against those undisputed facts, I must fix the starting point for your sentence. The starting point is the appropriate term of imprisonment for the lead or index offence; that is, the most serious one of selling cannabis. It is the sentence that is appropriate to reflect the wrongdoing of the offending. Once that is fixed the sentence may be adjusted up or down to take into account favourable or adverse personal circumstances.
[8] Fortunately in this case there is no real dispute about the appropriate starting point. Counsel agree that three years imprisonment is the appropriate point, taking into account the totality of the offending. In my judgment that term is proper to reflect denunciation and deterrence and making you accountable for your criminal behaviour.
[9] I need not say anything more about the circumstances of the offending. Each of you understands today the significance of your wrongdoing. Each of you understands that in normal circumstances a sentence of imprisonment would be imposed. However, as you will have sensed from my exchanges with counsel, I am not going to follow that course.
Mitigation
[10] Against that starting point of three years imprisonment I must allow for certain mitigating or good factors. One of them, which counts very significantly, is that you have each admitted your guilt. Each of you has expressed a degree of remorse. In doing so you have faced up to your offending and saved the state and society the cost and inconvenience of a trial. You are entitled to a significant discount.
[11] Also there are your personal circumstances. Each of you are gentlemen of good character. Before you were apprehended neither of you had any previous criminal convictions. Mr Attwood has tendered glowing personal employment testimonials and a personal reference as well. They speak volumes for your character and for your work ethic.
[12] Mr G A , you are 25 years of age. You are living at home at your mother's address. What is of concern to the probation service and to me is that their testing shows that you have a harmful degree of cannabis abuse. However, with the assistance of the probation service, that may be resolved.
[13] Mr L A , you are 34 years of age. Again you are of good character. Unfortunately since you were arrested you have pleaded guilty to and been sentenced on one charge of assault. You are presently serving a term of 140 hours community service.
[14] All these favourable factors bring that starting point down from three years imprisonment, as I set out before, to one of 18 months imprisonment. That is a significant reduction - in the vicinity of 50% - for your good character and your pleas of guilty.
[15] As you are aware, I do not intend to impose a term of imprisonment. Instead I am persuaded by the submissions of your lawyers, which are responsibly not opposed by the Crown, that sentences of home detention are appropriate. Home detention is not an easy option. You will be confined to the physical boundaries of the home detention address for the duration of the sentence except when you leave for employment purposes or to attend any courses directed by the probation service. I repeat that it is not an easy option. In my judgment the appropriate term of the home detention sentence is nine months. That is 50% of the equivalent term of imprisonment to reflect the fact that you are not eligible for parole.
[16] Accordingly, Mr G A , I sentence you to a term of nine months home detention on all charges, to be served at the address of 12 Tahere Road, Whakatane, where your mother resides. It will be subject to the statutory conditions.
Additionally you are upon release from this Court to travel to that address and await the arrival of a probation officer and security officer. The other conditions suggested by the probation officer are imposed. In particular, and I repeat them for your benefit:
(1)You are not purchase, possess or consume alcohol and/or illicit drugs for the duration of the home detention;
(2) You are to report to a probation officer as directed;
(3)(and I think this will be beneficial to you) You are to undertake and complete a Tikanga Maori programme, subject to availability, to the satisfaction of the probation officer and programme provider;
(4)(and I think again this will be to your benefit) You are to undertake alcohol and other drug assessment and complete any recommend counselling or treatment for abuse of alcohol and other drugs, again to the satisfaction of the probation officer and programme provider.
[17] Mr L A , you are sentenced to the same term of nine months home detention. The address is that provided in the supplementary appendix from the probation service, which is 33 Paul Street, Whakatane. Again the same conditions that I have stipulated for your brother apply to you. I do not need to repeat them today.
[18] There you are. Each of you can thank your lawyers and your whanau for the result that has been achieved today. You are both men of good character. You should never have been before a Court of law. I hope that you never return to the Court, whether the District Court or this Court. If you take the appropriate steps to
rehabilitate yourselves, I wish both of you the best. Please stand down.
Rhys Harrison J
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