R v Anderson
[2022] NZHC 2360
•14 September 2022
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2020-070-2302
[2022] NZHC 2360
THE KING v
SHERRY LEE ANDERSON
Hearing: 14 September 2022 (Heard at Hamilton) Appearances:
P Lee for Crown
J S Gurnick for Defendant
Sentence:
14 September 2022
SENTENCING REMARKS OF PETERS J
Solicitors: Pollett Legal, Crown Solicitor, Tauranga Counsel: J S Gurnick, Hamilton
R v ANDERSON [2022] NZHC 2360 [14 September 2022]
[1] Ms Anderson, you appear for sentence today one charge of possession of cannabis for sale, one charge of cultivating cannabis, and one representative charge of money laundering.
[2] I know you will be wondering just how this sentencing process works. What I intend to do is summarise the background to the offending and what I know of your circumstances, and then I shall undertake the sentencing exercise. You will not know your sentence until I get to the very end which could take me 10 or 15 minutes, so do not jump to any conclusions on the way through.
Background
[3] Insofar as concerns the background to the offending, the money laundering charge arises from Operation Emoji. This uncovered a large-scale network for the manufacture and distribution of methamphetamine in the Bay of Plenty. The Police terminated the operation in mid-2020.
[4] Your nephew, Calebh Simpson, was at the centre of this network. In the course of investigating and monitoring Mr Simpson and his activities, the Police became aware that he had involved members of his family, including you, in hiding funds and assets, including several motor vehicles. Your involvement was to receive cash, and deposit it into your account, and then to make payments on account of Mr Simpson’s legal expenses. You also accepted the transfer of a vehicle into your name. There is no suggestion, however, that you profited from any of this or from your nephew’s wider activities.
[5] In connection with your involvement in the money laundering, the Police executed a search warrant at your home in Ngāruawāhia. This is how they discovered your cannabis offending. The Police found four purpose built tents with filtration, air flow, lighting, and temperature control systems. They found a total of 46 cannabis plants, which they estimate would yield up to $60,000 if grown to maturity.
[6]In addition, the Police located 2.3 kilograms of cannabis head material and
7.14 kilograms of cannabis material and stalks with an approximate street value of between $25,000 and $30,000. Your lawyer, Mr Gurnick, in his submissions tells me that the 7.14 kilograms was waste material, and therefore the possession charge only involves the 2.3 kilograms of cannabis head. That, however, is not in the agreed summary of facts so I shall put it to one side.
[7] It is accepted in the summary that you grew and supplied the cannabis for medicinal and recreational purposes, but that you also sold some of it. The suggestion that at least some of the cannabis was for medicinal purposes is supported by a letter from a Dr Johnathan Armstrong, your father’s GP. Dr Armstrong confirms that your father responded well to a cannabis oil which was not funded by the Government, and which proved to be prohibitively expensive, and that some of the cannabis you grew was as a substitute to help your father manage what would otherwise have been debilitating pain.
[8] Turning to your personal circumstances, you are 60 years of age. You have one conviction from 1989, and thus can be treated as having no criminal record. Aside from the GP’s letter, I have several others which give me information about your personal situation, including the letter that you wrote.
[9] One letter is from your employer of 12 years, who speaks of your skills, and reliability, and their wish to retain you in your current role.
[10] I also have a letter from a Ms Harte, to whom you have given great assistance over the last 30 years. Amongst other things, Ms Harte credits her tertiary education to your insistence, encouragement and support, financial and otherwise, over several crucial years when she was young, and when these reinforcements and support were not forthcoming from her own parents. Ms Harte states that you have been a constant and beneficial presence in her life since.
[11] Your mother says that you have supported her and your father, including financially, for many years. Your father now has considerable difficulty moving
around and your mother also says that it was his infirmity and constant pain which led you to start growing cannabis.
[12] Tammara Butler, your sister and Mr Simpson’s mother, has also written in your support. I sentenced Ms Butler two or three months ago and I am familiar with her circumstances. The gist of Ms Butler’s letter is that your money laundering offending was essentially at her instigation, when she in turn was trying to help her son when he was under pressure in prison. She also says that you supplied her with cannabis, she not having the financial wherewithal to purchase her own, and again states that you have been providing cannabis oil to your father. Ms Butler says that you have provided a great deal of support to your elderly parents and that they could not have managed without you.
[13] Your daughter has also written and it is clear from her letter that she too would be lost without you.
[14] In your letter you express your remorse, and say that you only started growing cannabis to provide it to others, for instance a friend who had Parkinson’s disease and for whom it was of assistance, and for your father also, and that you never intended commercial supply, but that it turned into something of an obsession for you. You say the last two years, whilst you have been going through the criminal process, has been full of sleepless nights and stress, and that there is no prospect of you committing any further offending.
[15] Lastly, I have Corrections’ Provision of Advice to Courts report. This records much of what you say in your letter and it also says that you are remorseful. Corrections assesses you as being at low to medium risk of reoffending, and recommends a sentence of home detention with post-detention conditions.
Approach to sentence
[16]I turn now to the sentencing process.
[17] The sentence I impose must promote in you a sense of responsibility for your actions, and be sufficient to deter you and others from committing the same or similar
offending in the future. I must also treat you consistently with others and impose the least restrictive sentence available and appropriate in the circumstances.
[18] The first part of the sentencing process is to set what we call a “starting point”. This is to reflect the circumstances of the offending, without considering any matters personal to you. The second part is to adjust that starting point to reflect any matters
— the good and the not so good — personal to you.
Starting point
[19] So coming first to the starting point, the two cannabis offences are the lead or main offending. Cultivation and possession for sale attract maximum terms of imprisonment of seven and eight years respectively. I shall set a starting point for these charges, and then address the money laundering charge.
[20] The relevant guideline judgment, R v Terewi, sets out three sentencing ‘bands’ for cannabis offending.1 Counsel are agreed that your offending is in band two: small- scale cultivation for, or with an element of, low-level commerciality. The usual starting point for this category is between two and four years’ imprisonment, but less may be justified if sales are infrequent and limited in extent.
Crown submissions on starting point
[21] Crown counsel, Ms Lee, submits that I should take a starting point of between two and a half to three years’ imprisonment. This is because of the number of plants, and the scale of the equipment you had on site. Ms Lee has referred me to three cases in which she submits there was offending on a reasonably similar scale, with a level of commerciality, these cases warranting a starting point of between two years and two years, 10 months’ imprisonment.2
1 R v Terewi (1999) 3 NZLR 62
2 R v Hartley HC Gisborne, CRI-2006-016-3469, 16 February 2007; R v Moore [2013] NZHC 1427; and R v Rakatau [2007] NZCA 21.
Defence submissions on starting point
[22] Mr Gurnick submits that I should adopt a starting point of 18 months. He submits it is permissible to adopt a starting point of less than two years if the commercial element is very small, which he submits is the position here.3 He emphasises that the predominant purpose of the cultivation and possession was to provide cannabis to friends and family, with only occasional sales to others.4 Mr Gurnick refers me to cases in which offending of a similar or more serious nature warranted a starting point of between one year, nine months and two years, three months’ imprisonment.5
[23] Mr Gurnick submits that the cases that the Crown relies upon involve a more significant or obvious commercial element than yours and thus are not as applicable.
Discussion
[24] I accept that your operation was substantial, but I also accept it started as a way of helping your father. Any sales have been modest, and money has never been the object. In those circumstances, the cases which I consider most similar and therefore useful are R v Lyall and Houghton v R.6 In both of these cases there was a “pain relief” element to the growing, as well as personal use and some sales. The starting point in those cases were two years and 21 months respectively. I propose to take a starting point of 21 months, which is one year, nine months.
Uplift for money laundering
[25] Turning to the money laundering, Ms Lee submits that I should increase the starting point by three to six months for the money laundering offending.
[26] Mr Gurnick submits that an uplift of no more than three months is warranted. I accept his submission. Your involvement was to help a family member, not for any benefit to you.
3 R v Andrews [2000] 2 NZLR 205.
4 R v Andrews, above n 3; and R v McGlip (2006) 23 CRNZ 526 (CA).
5 R v Lyall [2012] NZHC 3245; Houghton v R [2020] NZHC 2819; Olsen v Police [2019] NZHC 1259; and Hitchcock v Police [2021] NZHC 364.
6 R v Lyall, above n 5; and Houghton v R, above n 5.
[27]Overall, I adopt a starting point of two years’ imprisonment.
Mitigating factors
[28]That brings me to stage two which is to look at factors personal to you.
[29] Both Ms Lee and Mr Gurnick accept that there are no aggravating factors personal to you but that there are mitigating factors.
Previous good character
[30] The first of those which I propose to deal with is previous good character. Mr Gurnick submits that your good character is a factor to be taken into account in mitigation and warrants some reduction in sentence. Ms Lee accepts that some modest discount for this factor may be warranted.
[31] I agree that some discount is appropriate. This is not only because of your relatively unblemished criminal record but because of the considerable assistance that you have provided to others, and I single out particularly your parents and Ms Harte, over many years. Caring for parents would not usually be treated in this way but you have provided a great deal of assistance to them over many, many years, and continue to do so. As for Ms Harte, you gave her crucial assistance at an important stage in her life. I propose to allow a 10 per cent reduction for this.
Guilty pleas and remorse
[32] I then turn to your guilty pleas and remorse. A discount is also warranted for your guilty pleas. These were entered on 29 April 2022, just a matter of days before you were to go to trial on 2 May 2022, and even then it was not an unequivocal acceptance as there was some dispute in relation to elements of the summary of facts.
[33] Mr Gurnick, who has only come into this matter relatively recently, accepts that guilty pleas were not entered at the earliest opportunity. However, he cannot reconcile the delay with your clear instructions to him when he took over that you accepted responsibility and wished to “face the music” so to speak. So the only way
Mr Gurnick can explain it, and this may be unfair to prior counsel, is that she adopted a particular strategy which had the potential to be to your disadvantage.
[34] Ms Lee submits that, whatever the explanation for the delay, the Crown was still put to a lot of expense and trouble and I accept her point in that regard. She submits that a discount of 10 per cent is appropriate.
[35] I do propose to allow slightly more at 15 per cent for your guilty pleas. This is generous to you and so I do not propose to allow any separate discount for remorse.
End sentence
[36] The discounts to the two-year starting point equate to 25 per cent and brings the end sentence to 18 months imprisonment, and thus within range of a sentence of home detention.
[37] Ultimately, however, instead of home detention I have settled on a sentence of six months’ community detention as I consider that the least restrictive sentence appropriate in the circumstances. Important factors for me have been the absence of a profit making motive and the fact that there is little prospect of you ever offending again.
[38] It is clear from Corrections’ report that your address in Ngāruawāhia is suitable for electronic monitoring and that the occupants of the address, being your parents and a flatmate, are also considered suitable. I am conscious, of course, that is the place where the offending took place but it is your home address and that will be the curfew address.
[39] I do not propose to make an order for supervision, simply because the prospect of you ever offending again is remote. Nor do I impose any requirement for community work, as I am satisfied you are already essentially doing community work by supporting your parents and particularly your ailing father.
Sentence
[40]Please stand:
(a)on the charge of possession of cannabis for sale, I sentence you to six months’ community detention. You are to observe a curfew of 7 pm to 6 am, seven days a week, at the curfew address, for the duration of the sentence.
(b)on the charge of cultivating cannabis, I sentence you to six months’ community detention, to be served concurrently with the sentence on the charge of cultivating cannabis.
(c)on the representative charge of money laundering, I sentence you to three months’ community detention, to be served concurrently with the sentence on the charge of cultivating cannabis.
[41]That means your total sentence is six months’ community detention.
[42] I also make an order for forfeiture of the drugs, paraphernalia and any other articles used in the commission of the offence, this order being made pursuant to s 32(1) of the Misuse of Drugs Act 1975.
[43]Please stand down.
Peters J
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