R v Anderson

[2013] NZHC 3079

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-025-002416 [2013] NZHC 3079

THE QUEEN

v

BRODIE RAYMOND ANDERSON

Hearing:                   19 November 2013

Appearances:           M J Thomas for Crown

S Vidal for Prisoner

Judgment:                19 November 2013

JUDGMENT OF D GENDALL J

[1]      Brodie Raymond Anderson, you appear for sentence following guilty pleas to first, three charges of cultivation of cannabis under ss 9(1) and (2) of the Misuse of Drugs Act 1975; six charges of possession of cannabis for the purposes of sale under ss 6(1)(f) and 6(2)(c) of the Misuse of Drugs Act 1975; and 15 charges of offering to sell cannabis under ss 6(1)(e) and 6(2)(c) of the Misuse of Drugs Act 1975.

[2]      You  have  previously  pleaded  guilty  to  a  single  charge  of  possession  of cannabis for the purpose of sale and this charge is inter-related to the charges currently before the Court.

[3]      As to background facts, the charges all arise out of a lengthy and complex police  surveillance  operation   known   as   Operation   Canary.     The  defendant, Mr Anderson came within the purview of the operation as a result of surveillance carried out by the police primarily on his father and other persons.  The police also obtained warrants authorising them to intercept text messages sent to and by the

defendant and other persons suspected to be involved in a large scale cannabis

R v ANDERSON [2013] NZHC 3079 [19 November 2013]

cultivation operation.   These revealed that between June 2011 and April 2012 the defendant had offered to supply cannabis to associates on 42 separate occasions.  On seven of these he had actually been in possession of cannabis for the purpose of supplying it to others.

[4]      Although it is not specifically recorded in the summary, the defendant also accepts that he played a part in harvesting 64 cannabis plants at two separate sites in the 2010/2011 cannabis growing season.

[5]      The third cultivation charge arises as a result of events that occurred in April

2012.  From intercepted conversations, the police learnt that the defendant and his father proposed to harvest cannabis in a plot near a stream known as the Hump Burn Stream and to then hang it out to dry.  On the same day the defendant had a chance meeting in the bush with a police officer involved in the investigation.  This officer noticed a strong smell of cannabis emanating from the defendant.

[6]      On  16 April  2012  the  police  intercepted  a  further  conversation  between Mr Anderson and his father in which the defendant was to dry and manicure a quantity  of  cannabis  that  he  was  in  possession  of  at  his  home  address.    This prompted the police to obtain and execute a search warrant in respect of the defendant’s home address which occurred on 17 April 2012.  In the bedroom at that address the police located a large amount of cannabis that had been laid out to dry. In the hallway outside that room the police found a rubbish bin containing a quantity of cannabis and paraphernalia associated with preparing cannabis for sale.   This included scales, snap lock bags and scissors.   In total the police found 57.3 oz of cannabis at the defendant’s home address.  Of this approximately 49 oz was of good quality and would have had an approximate street value of $17,000.  The remaining

8 oz was of poor quality and would have had minimal value other than for manufacture of cannabis oil.

[7]      When the police spoke to the defendant, he told them that all of the cannabis at his address belonged to him.   He said he was in a lot of debt and thought this would be an “easy way out”.

[8]      Police officers executed a further search warrant when they terminated the overall Operation Canary operation on 28 June 2012.  On this occasion they found clothing, including a balaclava, similar to items worn by one of the persons who had been captured on camera harvesting cannabis at one of the plots on 1 and 2 April

2011.

[9]      I now turn to the sentence indication hearing in this Court.  On 21 October

2013 Lang J delivered a sentencing indication which indicated the following:

(a)      A starting point for the cultivation charges of two years and three months as being appropriate.

(b)      The starting point was to be uplifted by nine months to reflect the defendant’s culpability in the cannabis operation post-harvest.

(c)      If the defendant accepted the sentencing indication he was to receive a full 25% discount for the guilty plea; and

(d)      An end sentence of two years and three months imprisonment was seen as appropriate, with the potential for a further discount to reflect any further mitigating factors that might appear.

[10]     As I understand it, the defendant accepted the sentencing indication.   The Crown submits before me that the end sentence of two years and three months imprisonment is an appropriate one here.

[11]     I turn now to the personal circumstances of the defendant as outlined in the pre-sentence report.   This notes that Mr Anderson is a 25 year old male of Maori ancestry.  He is the eldest of six half brothers and sisters.  He lived with his mother since the age of three and had regular contact  with his father, step-mother and siblings over the years.  The defendant noted that current matters had unfortunately split his family.  However, he did state that he is supported by his partner and mother. He has been in a relationship with his partner for the last seven years.  They have

two children aged five and three years and they are expecting their third child in May

2014.

[12]     The defendant left school at the age of 15 to pursue employment within the dairy farming industry.   It is noted he has been employed for all but two months since  leaving  school.    The  pre-sentence  report  also  notes  that  Mr  Anderson’s previous employment as herd manager at Murray Hill Dairies might in fact re- engage, although he has left this employment at present, and this might possibly support him while subject to a sentence of home detention.  This is said, given that his employers at the time appeared willing to support the defendant and to supervise his whereabouts in order to comply with the conditions of any such sentence.  More on this aspect later.

[13]     In the meantime, the defendant has resigned from his job at Murray Hill Dairies because, he says, of the uncertainty around his case.  If he was imprisoned the defendant says he would have left his employers in the lurch and left his family homeless as the home they lived in was supplied as part of the defendant’s job.  The defendant has thus taken what I see as the responsible step of resigning, so his employers could find another herd manger in the meantime and he has also been able to set up his family in a home that they can continue to live in if indeed he is imprisoned.

[14]     On these aspects, an appendix for home detention has not been completed as there was no suitable address to offer at the time of the assessment.  There are also, as I see it, no social or cultural barriers identified as potential barriers to compliance with a community based sentence here.

[15]     In explanation for his offending, the defendant has stated that at the time of this offending he was facing financial problems and agreed to sell cannabis in order to pay off some of his debts.  He was reluctant to confirm other parties’ involvement even though he was aware others were charged with similar offences.  He stated that he accepts responsibility fully for his actions and decisions and understands the consequences his offending may have.

[16]     The pre-sentence report also notes that the defendant has a limited conviction history, mainly related to drink driving and other driving matters, between 2005 and

2008 when he would have been aged in his late teens.  It does not appear that he has any history of offending of this type before at all.

[17]     The defendant has admitted consuming cannabis a few times a year but also that he was subject to drug testing for his employment and returned clear tests.  He agreed that financial problems, friends and associates were the main factors he said, contributing to his offending.

[18]     As to the financial problems which the defendant says have driven him to this offending, these included his inability to properly manage his finances, coupled with the birth of his first child, and having to find new housing and furnishings.  He says he offended to remedy this situation.

[19]     It  is  noted  in  the  report  that  he  meets  the  criteria  for  departmental programmes and budgeting advice which will assist him to deal with his offending needs via parole or release conditions.

[20]     The  report  notes  also  that  the  defendant  has  expressed  a  willingness  to comply with any sentence imposed but notes that, based on his limited criminal history, his risk of re-offending and harm to others is considered to be at a low level. No other barriers to compliance with a community based sentence were identified, nor were any rehabilitative needs.

[21]     To repeat, as noted above, home detention was not considered to be currently available  as  a  sentencing  option,  as  Mr  Anderson’s  address  changed  when  he resigned from his employment.  The pre-sentence report states that the defendant did not want his current address used and had not forwarded any further addresses to be considered.  More on this aspect later.

[22]     I turn now to a reference provided for the defendant.  This reference has been provided by the defendant’s previous employers which essentially states that they continued to be happy to have him on the farm, provided he undertook random drug

tests and that those all came back negative.  It was made clear that if the tests were to come back positive his employment would then be terminated.  The reference goes on to note that the defendant has a very good work ethic.  He has been found at all times to be punctual and helpful.  In addition the reference indicates that his previous employers found the defendant to be reliable, honest, upfront and remorseful about the situation he has put his employers in with needing time both to see his lawyer and for court hearings.  It also notes that his previous employers were happy to keep the defendant in their employment as long as he would have wished to work for them but, as noted above, he has since resigned that job.

[23]     Counsel for the defendant has raised an issue of parity between the defendant and a Mr Frank Tainton, an Operation Canary co-offender who was sentenced to two years and nine months imprisonment on 25 September 2013.  Before me Ms Thomas for the Crown submitted that the issue of parity with Mr Tainton, however, is not particularly relevant here as first, whilst Mr Tainton’s offending involved greater quantities of cannabis, the charges were not the same as those the defendant faces sentence on.  Mr Tainton was sentenced for possession for supply and conspiracy to supply.    There  were  no  actual  offers,  nor  was  there  any  involvement  in  the cultivation of cannabis.

[24]     Next, Ms Thomas notes that whilst the defendant and Mr Tainton were both charged as a result of Operation Canary, the two were not involved in the offending together.  Operation Canary uncovered a cannabis network with distinct and separate parts.  The defendant’s and Mr Tainton’s offending were unconnected parts of that network.

[25]     Thirdly, Ms Thomas notes that the defendant and Mr Tainton have not been charged  as  parties  to  any of the same  charges  which  reflects  the disconnection between the two.

[26]     Finally, the Crown suggests that, as the defendant and Mr Tainton were not truly connected in their offending, and given that the nature of the charges each face were  different,  it  is  contended  that  Mr  Tainton’s  sentence  provides  no  greater

assistance than that of any other offender being sentenced in accordance with the principles set down in Terewi.

[27]     On all these matters I agree.

[28]     In  considering  my  analysis  in  this  matter,  a  starting  point  must  be  the sentencing indication issued by Lang J.  On this I am satisfied here that Lang J was correct in placing this offending in band 2 of Terewi which provides a starting point of between two and four years imprisonment.  While before me the Crown may at some point have sought a higher starting point, when I consider the role of the defendant overall in this matter, a starting point of around two  years and three months is appropriate here.   I reach this point considering the defendant’s much lesser role in Operation Canary compared to others involved.  It has been said that the defendant here was merely a “foot soldier” in relation to all the Operation Canary offending, and I take this matter into account.

[29]     In his sentencing indication Lang J imposed an uplift of nine months for the multiple occasions on which the defendant had been involved in the sale of harvested cannabis, taking the end starting point to a term of imprisonment of three years.  In my view this nine month uplift is appropriate as an aggravating factor here.

[30]     So far as mitigating factors are concerned, I consider in this case that a discount of 10 per cent can be given for a lack of previous drug offending on the part of  the  defendant,  for  his  remorse  and  his  relative  youth.    This  would  take  the sentence to one of 32.4 months imprisonment.

[31]     Next, in my view a full discount of 25 per cent is appropriately given for Mr Anderson’s guilty pleas.  There seems to be no objection to this from the Crown. That would take the imprisonment sentence down to an effective term of 24 months or two years.

[32]     Although before me Ms Vidal for the defendant indicated that he did not wish to seek leave to apply for home detention, in my view leave should nevertheless be granted, in case there is a reconsideration of this position.   If therefore a suitable

address can be provided and the defendant wishes to pursue this aspect I now grant leave to him to apply for home detention under s 80 I Sentencing Act 2002.

[33]     Mr Anderson, in conclusion I am accordingly now sentencing you to an end sentence of two years imprisonment on the charges before the Court.

[34]     The following release conditions are imposed:

(a)      You are to undertake and complete appropriate treatment/counselling to the satisfaction of the probation officer and treatment provider; details of the treatment or counselling are to be determined by your probation officer; and

(b)     You are to attend an assessment for an appropriate departmental programme, and to attend and complete an appropriate departmental programme as recommended by the assessment, to the satisfaction of your probation officer and programme provider; details of the appropriate  programme  are  to  be  determined  by  your  probation officer.

........................................................

D Gendall J

Solicitors:

Preston Russell Law, Invercargill

Southern Law, Arrowtown