R v Anderson HC Auckland CRI 2010-004-10143
[2011] NZHC 1251
•20 September 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2010-004-10143
THE QUEEN
v
MANUERA ANDERSON
Hearing: 20 September 2011
Appearances: M Harborow for Crown
R Mansfield for Anderson
Judgment: 20 September 2011
SENTENCING REMARKS OF ALLAN J
Solicitors/counsel :
Crown Solicitor Auckland [email protected]
R Mansfield [email protected]
R V MANUERA ANDERSON HC AK CRI 2010-004-10143 20 September 2011
[1] Mr Anderson, you appear for sentence this morning having pleaded guilty to separate charges of cultivating, selling and possessing cannabis for supply. Cultivating cannabis carries a seven year maximum, and on each of the other two charges the maximum penalty is eight years imprisonment. You appeared in the first instance in the District Court, but Judge Joyce declined jurisdiction and you were remanded to this court for sentence, pursuant to s 28G of the District Courts Act.
Factual background
[2] There is no dispute about the detail of your offending. On 9 June 2010, the police executed a search warrant at your home in Panmure. There they located a cannabis growing operation of some sophistication. Mr Mansfield has taken issue with the description of this operation as sophisticated, but I use the term simply to indicate that a great deal of work and effort had gone into what was found. You were cultivating cannabis in three separate areas of your property. In a walk-in wardrobe, part of the master bedroom, the police found 29 cannabis plants, approximately
40cm in height and weighing 682 grams. In a storage area behind the bed in the master bedroom, 26 plants about 1 metre in height were found, weighing in total
7080 grams. There were also two plastic pails containing dry cannabis heads, weighing 1009 grams. Finally, under a work bench in the garage, there were six plants, approximately 50cm in height and weighing in total about 260g.
[3] In the wardrobe, you had lined the floor with black polythene plastic and the walls with silver foil. Several heat lights were suspended from the ceiling and large air vents had been installed to funnel the smell of cannabis out of the house. The storage area behind the bed was also vented. You had installed in this area a large dehumidifier, heat lights and shades, temperature gauges and several large fans to regulate the heat. Growing operations in the garage were somewhat less sophisticated. Here, there was a small clear plastic incubator with a heat light suspended above it.
[4] In addition to these growing areas, a drying room had been set up under the staircase leading from the laundry to the garage. It was lined and furnished with heat lights. Again there was a large fan and other venting equipment.
[5] Additionally the police located spare light bulbs, fertilizer products, and growing equipment.
[6] At the time of the search, you cooperated with the police and assisted by advising them where the growing areas were located. You explained that you had been a long time cannabis user, that you started growing cannabis for your own use about two years ago but that gradually your growing operations expanded to the point at which you were supplying friends on a commercial basis. At that stage you took significant steps to modify your two-storeyed house to enable you to grow larger quantities of cannabis in several locations. You told the police that when harvested, the cannabis heads were dried and packaged into 1 ounce ziplock plastic bags. You took orders on your mobile phone from prospective buyers who you met in a designated area close to your home. No sales were made from the home itself. There was, it seems, an element of regularity about your operations. You sold cannabis to regular customers on Monday nights; you also gave cannabis to workmen at your address in lieu of payment.
Personal circumstances
[7] You are 31 years old, married with a two year old son. You have been employed on a full time basis for the past five years or so as a panel beater. Your employer has provided a reference which speaks very highly of you. The court is told that if a non-custodial sentence is imposed, your job will remain available to you.
[8] You advised the probation officer that you smoked cannabis throughout your teenage years. The pre-sentence report identifies a harmful pattern of drug and alcohol use. There seems also to be a history of depression.
[9] When your wife stopped working in the later stages of her pregnancy, you experienced financial problems. Your solution was to step up your cannabis operation by cultivating enough to derive additional income. Once you made some initial sales you became dependent on the extra money, and so your offending simply continued. You told the probation officer that your wife was opposed to your involvement with drugs, and indeed, that she took away your young son for a time and lived in Taupo. That seems to have led to a break down associated with your depression. Your emotional state has now stabilised somewhat following the prescription of appropriate medication.
[10] To your great credit you have done something about your predicament. It may be that your wife’s decision to leave had a good deal to do with that. You have taken extensive counselling courses associated with alcohol and drug difficulties, and also with respect to your relationships.
[11] At the time of the pre-sentence report you stated you had taken no drugs for five months. The probation officer was obviously impressed by you and the steps you were taking to avoid future offending. A sentence of intensive supervision is recommended, on the basis you continue to attend and successfully complete your current counselling initiatives. The probation officer notes also that your wife, who has resumed employment and has a responsible position, is sometimes away from home, and that on those occasions you assume responsibility for the care of your young son. Given your work and family commitments, the probation officer considers that an electronically monitored sentence of home detention might present problems. I have discussed that this morning with counsel and as I understand the position, there is no technical reason why you could not both work and remain on home detention, electronically monitored.
[12] You have seven prior convictions, between 1998 and 2006. They are principally for driving and minor criminal offences. There are no prior convictions for drug offences. In my opinion your previous record is not of sufficient seriousness to justify any increase in the sentence which it would otherwise be proper to impose.
Sentencing principles
[13] I am obliged to take into account in determining an appropriate sentence the harm which drug offending causes to the community. Of particular importance also is the need to denounce your conduct and to ensure that any sentence imposed sufficiently deters you and others from similar offending. At the same time, I must take into account also the desirability of assisting you, so far as I can, in the rehabilitation process that you have already begun.
Starting point
[14] Counsel are agreed that the guideline case of R v Terewi,1 applies. Counsel are agreed also that for sentencing purposes no distinction is to be drawn between the three offences to which you have pleaded guilty.
[15] I agree with counsel that this case falls into category 2 in Terewi, in that it involves relatively small scale cultivation of cannabis plants for a commercial purpose. A starting point of two-four years imprisonment is generally appropriate in category 2 cases, but a lower starting point may be taken if sales are infrequent and of a limited extent.
[16] The personal circumstances of cannabis offenders who fall within categories
2 or 3 are of only limited relevance, the need for deterrence being paramount. There is room for some small allowance to be made in deserving cases, which Mr Mansfield submits this is. I tend to agree with him and will come back to that point a little later.
[17] Counsel for the police submits this case falls somewhere above the mid-way point in category 2, and that a starting point of three years imprisonment is appropriate. On the other hand, Mr Mansfield suggests a starting point of two and a
half years imprisonment.
1 R v Terewi [1999] 3 NZLR 62 (CA).
[18] Only limited assistance can be derived from considering other cases; I do so only briefly. In R v Seymour,2 a starting point of three and a half years imprisonment was adopted. That case involved some 92 healthy cannabis plants, and 238 smaller plants found in a sophisticated indoor growing operation. In R v Delamore,3 a starting point of three and a half years imprisonment was also adopted. That case involved a sophisticated growing operation in the garage of the property; some 206 plants were located and a further seven kg of cannabis was found on the property.
[19] In R v Cook,4 50 cannabis plants were located in total, along with a number of dead plants, a substantial quantity of material associated with cultivation was also found. A starting point of between three and three and a half years imprisonment was adopted.
[20] Finally in R v Sharp,5 a starting point of three years imprisonment was taken in a case where 80 cannabis plants were found in the prisoner’s home. In addition, the police found 1.5 kg of cannabis and a significant quantity of cash.
[21] Cases such as these suggest to me that the appropriate starting point is three years imprisonment. The case is not quite as serious as Seymour or Delamore, but is similar to Cook and Sharp. That starting point takes into account all of the aggravating and mitigating factors related to the offence itself.
Aggravating or mitigating factors relevant to the offender
[22] The only identifiable aggravating factor relevant to you, is your previous criminal record, but I do not consider it to be sufficient to justify an uplift, and counsel for the police does not seek that.
[23] I turn therefore to mitigating factors. Mr Mansfield highlights the steps you have taken to address your addiction to cannabis, and to rehabilitate yourself. The
2 R v Seymour HC Whangarei CRI-2009-027-1356, 3 February 2010.
3 R v Delamore HC Auckland CRI-210-004-1934, 5 October 2010.
4 R v Cook HC Tauranga CRI-2008-087-320, 10 July 2008.5 R v Sharp HC Tauranga CRI-2010—63-4641, 22 July 2011.
court understands you have abstained from using cannabis for a significant period now (16 months), and that you remain drug free.
[24] I am not sure that that is a factor which mitigates this offending in the sense of affecting the starting point, but it can be taken into account in determining the type of sentence that ought ultimately to be imposed. I adopt the same approach in respect of your difficulties with clinical depression, but I am disposed to allow a small discount for your personal circumstances in the round, as identified by Mr Mansfield in his submissions.
[25] You are certainly entitled to an appropriate discount in respect of your early guilty plea, which was entered prior to committal. Discounts for guilty pleas will not ordinarily exceed 25%, and an early guilty plea entered where the prosecution has a very strong case will usually result in a slightly lower discount. The police case here was extremely strong, as you readily accepted. Although I have considered reducing the discount, in the end I will allow 25%, so that reduces the starting point by a quarter to three years two months.
[26] But it is appropriate also to add an additional discount to recognise your remorse. As has been observed more than once, Judges need to be sceptical of unsubstantiated claims of remorse, but I am satisfied here that you are genuine in your desire to redeem yourself, and that you are truly remorseful for what has occurred. I have read your letter to the court very carefully and I am certain from the way you expressed yourself that a lot of thought went into that letter. I have also noted the rehabilitative steps you have already engaged in. Likewise, I have considered the various letters from your employer and from friends. They suggest you are a man who makes a very positive and worthwhile contribution to the community, which shows me that your cannabis offending is really an anomaly which you have the capacity to put behind you. I allow a reduction of three months for remorse. I will also allow an additional two months for the group of positive personal factors that Mr Mansfield has identified in his submissions to me. They include such issues as the steps you have taken to rehabilitate yourself, your stable home life, your record in the community, your stable employment record and your health issues The starting point, already reduced to two years three months, is
reduced by a further five months by remorse and personal factors, down to one year and ten months.
[27] I need now to consider the effect of the forfeiture order made in respect of your interest in the Armein Road property. The Crown having sought forfeiture under s 10B of the Sentencing Act 2002, you ultimately accepted it was appropriate to consent to a forfeiture order, because your property had been used to facilitate the commission of a qualifying instrument forfeiture offence. You raised a mortgage on your house and funded thereby the payment of the sum of $60,000 to the Crown. That sum represented the agreed value of your interest in the equity of the property. Although you retain by way of equity a further $60,000 which represents your wife share in the property. Mr Harborow points out that in that respect the case is a little different from those in which a prisoner is entirely dispossessed following the complete sale of a property. I accept that is a factor to be considered as part of the overall circumstances.
[28] Under s 10B(2), this court must take into account on sentence the value of the property that is the subject of the instrument forfeiture order, or that is otherwise forfeited, and the nature of your interest in that property. The forfeiture agreement ultimately became the subject of a consent order made by Whata J.
[29] At this stage of the new forfeiture regime, relevant principles have yet to emerge clearly. In R v Brazendale,6 also a case involving cannabis offending, Cooper J discharged the accused in circumstances where the whole of the prisoner’s property, valued at $465,000, had been the subject of a forfeiture order. That decision is the subject of an appeal to the Court of Appeal.
[30] In R v Elliot,7 also a cannabis cultivation case, Heath J ordered forfeiture of the whole property and sentenced the prisoner to supervision for one year. He noted that had he been sentencing without reference to a forfeiture order he would have
taken a starting point of three and a half years imprisonment.
6 R v Brazendale HC Auckland CRI-2009-092-17133, 20 August 2010.
7 R v Elliot HC Gisborne CIV-2009-16-3799, 19 August 2010.
[31] On appeal, the Court of Appeal held that the court had jurisdiction to forfeit part only of an instrument of crime.8 The appeal was accordingly allowed, the forfeiture order set aside and the sentence quashed. Resentencing has yet to occur in this court.
[32] In R v Sharp.9 Woolford J noted that the extent to which a forfeiture order mitigates a sentence is a matter of discretion, and there is no need for a direct correlation between the value of the property forfeited and the amount of a discount. But as he observed, it is logical that the greater loss to an offender by reason of forfeiture, the greater the discount ought to be. In Sharp, which bears some similarity to the present case, Woolford J reduced the starting point by 12 months in order to take into account the forfeiture of the whole of the accused’s property, which involved the loss of an equity of about $80,000.
[33] In the present case, having listened carefully to what counsel have had to say, I have reached the conclusion that it is appropriate to allow a further discount from the reduced starting point of 22 months, of 50%. That reduces the starting point to
11 months. In adopting that figure, I have paid attention to Mr Harborow’s submissions, during which he pointed out that this is not a case in which you, Mr Anderson, have lost the whole of your property. You and your partner remain the owners. But for present purposes, it is proper to regard the equity remaining in the property as that of your partner, and not yours. Having reduced the finite sentence to
11 months imprisonment, I move on to consider the question of home detention. In doing so, I note Mr Harborow’s indication to the court that the police do not oppose home detention.
Home detention
[34] The Court of Appeal has explained several times, most recently in R v
Manikpersadh,10 that in determining whether a sentence of home detention is appropriate, the court must take into account all of the matters set out in s 8 of the
8 R v Elliot [2011] NZCA 386.
9 R v Sharp at [16].
10 R v Manikpersadh [2011] NZCA 452.
Sentencing Act. That section requires the court to have regard to the need to impose the least restrictive appropriate outcome, and to take account of the need to assist an offender in the task of rehabilitation and reintegration into the community.
[35] I am satisfied that home detention is the appropriate outcome here. You are able to point to your stable home life, your steady employment, the support of family and friends, the worthwhile contribution you make generally to the community, and to the steps you have already taken to move away from a dependence on cannabis with all of the offending temptations that entails. In my view, you are the sort of person upon whom the Court of Appeal focused in R v Hill,11 where the court emphasised that those who have already taken positive and genuine rehabilitative steps upon their own initiative, are prime candidates for home detention, rather than imprisonment.
[36] Generally speaking, sentences of home detention are imposed at a level of about one-half of the alternative sentence of imprisonment, in order to take into account the fact that those on home detention must serve the whole of the term imposed. But it is not a mere mathematical exercise.
[37] It is highly desirable of course that you maintain your employment. That may give rise to certain administrative and monitoring problems in the context of a sentence of home detention, but there is nothing to suggest that those problems cannot be resolved. An alternative sentence of community detention or intensive supervision, suggested by the probation officer, would not sufficiently respond to the gravity of this offending.
Sentence
[38] Mr Anderson, you are sentenced to six months home detention on each charge. I impose the following conditions:
(a) You are to travel forthwith, by the most direct route, to your residence at 32 Armein Road, Panmure, Auckland and are to remain there
11 R v Hill [2008] 2 NZLR 381.
pending the arrival of the probation officer and an officer of the security company;
(b) You are to reside throughout the period of home detention at
32 Armein Road, Panmure, Auckland;
(c) You are to continue attending and successfully complete the alcohol/drug programme and relationship counselling, in which you are presently participating;
(d)You are to attend such further alcohol/drug and relationship counselling programmes as may be deemed appropriate by the probation officer, to the satisfaction of the officer and the programme provider;
(e) You are to abstain from the consumption of alcohol and drugs, except prescription drugs.
C J Allan J
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