R v Baird HC Nelson CRI 2010-042-1994
[2010] NZHC 1436
•17 August 2010
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI-2010-042-1994
CRI-200-042-1488
THE QUEEN
v
CHARLES MICHAEL BAIRD AARON BRIAN RIORDAN
Appearances: J Bonifant for the Crown
A J Bamford for Mr Baird
J Standston for Mr Riordan
Sentence: 17 August 2010
SENTENCING REMARKS OF MALLON J
[1] Mr Riordan and Mr Baird, you appear for sentence, having each pleaded guilty to one charge of cultivating cannabis and one charge of possession of cannabis for the purpose of sale. Your co-offender, Mr Jefferson, is yet to be sentenced.
[2] The two offences carry maximum penalties of 7 and 8 years’ imprisonment respectively. You appear for sentence in this Court because the District Court declined jurisdiction, which it can do when the offending may attract a term of
imprisonment beyond the maximum that it can impose.
R V BAIRD AND ANOR HC NEL CRI-2010-042-1994 17 August 2010
[3] The offending relates to cannabis cultivated in dense bush in an isolated area controlled by the Department of Conservation. You two, together with Mr Jefferson who is a helicopter pilot, travelled by helicopter to the area in early October 2002 to prepare the land for planting the cannabis. The three of you went back to the area in late October 2009 with cannabis plants for planting. You made a third trip to the area by helicopter in late November 2009. Mr Jefferson was paid $18,000 by Mr Baird for the helicopter trips, that money having been borrowed by Mr Baird.
[4] At the end of December 2009 Mr Jefferson had crashed his helicopter and so this was not available to you. On 10 April 2010 the three of you trekked into the area by foot. You harvested cannabis head from some of the plants and carried it out with you. The three of you went back by foot on 15 April 2010 when you harvested some more of the cannabis and erected a drying rack. The three of you made a further trip on 21 April 2010 but this time the police were waiting for you, and you were arrested.
[5] In total there were three plots of cannabis. In these three plots were a total of
293 cannabis plants, which the police estimate have a value of approximately
$300,000. There was also various garden implements and fertilizer found in the area. The police also located two pounds of cannabis leaf at Mr Riordan’s address.
[6] In sentencing you I am required to take into account the principles and purposes of sentencing set out in the Sentencing Act. Of particular relevance in drug offending is deterrence. Consistency with other offenders convicted of similar offending is also important. Depending on the circumstances of the offender, a sentence may be aimed at rehabilitation.
[7] Here it is appropriate to consider the two charges together, because they are of a similar kind and are connected, and to impose concurrent sentences on the two charges. 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 aggravating and mitigating factors personal to each of you.
Starting point
[8] I consider that the same starting point should be applied to both of you because your involvement in the offending is essentially equal. I note Mr Baird that the summary of facts suggests that the idea came from you and that it was you who approached Mr Jefferson to use the helicopter. I note that you told the probation officer that it was Mr Jefferson who approached you. It is not necessary that I resolve this because it does not make any difference to your culpability in my view. The three of you equally participated, as is clear by the fact that the three of you made all the trips to the location together.
[9] The Court of Appeal’s decision in R v Terewi [[1999] 3 NZLR 62] is the guideline judgment for this offending. The Crown submits that this offending falls within, what is called, band 3, in the three bands of offending set out in that case. The Crown submits that I should adopt a starting point of 4 years’ imprisonment. Defence counsel submit that a three year starting point should be adopted, which would put this offending in the middle of band 2.
[10] I consider that a three year starting point is appropriate. That puts it at the middle of band 2 in R v Terewi. The offending was approaching “large-scale commercial growing” (ie band 3), because of the number of the plants, the police estimate of its value, and the use of the helicopter (which must have involved at least some organisation and cost). However, I have decided that the middle level of band
2 better reflects the culpability here for the following reasons:
a) First, the only sophistication involved is the choice of a remote location accessed by helicopter. Here that does not appear to have involved a great deal of planning because Mr Jefferson had a helicopter, and Mr Baird and Mr Jefferson knew each other before this plan was embarked on. And it became less sophisticated once the helicopter crashed and you all needed to trek into the area by foot.
b) Secondly, the number of plants is in the 100s rather than the 1000s.
As such it would not have been in the highest band before the Court
of Appeal moved away from setting the bands by reference to the number of plants. The Court of Appeal did that because the number of plants do not necessarily indicate yield where intensive cultivation methods are used. [R v Dutch [1981] 1 NZLR 304, discussed in R v Terewi at 71.] Here there is nothing to indicate that the number of plants understates the yield. In fact, as Mr Bamford submits, the remote location made it difficult for you to regularly tend to the plants once the helicopter crashed.
c) Thirdly, there were three of you involved. There is nothing to indicate that the three of you were to profit unequally from the venture. So working off the police estimate of value you would have each received $100,000 on the assumption that you would have sold all the cannabis.
d)Fourthly, that probably overstates the amount of cash you would have each received since it assumes you would have sold all of your share of the full crop. That seems unlikely because you have both been regular users of cannabis; according to Mr Baird, the crop was in pretty poor shape; and presumably the $18,000 borrowed for the helicopter would need to be repaid.
e) Finally although you must have been intending to profit from this venture, there is no evidence that actual sales occurred and therefore that you in fact made any money from this venture.
[11] I have checked that my starting point is consistent with a number of other cases involving a similar number of plants, with varying degrees of sophistication and commerciality: for example R v Cooper [HC Auckland CRI-2007-044-001261
15 July 2008]; R v Hampton [HC Tauranga CRI-2008-087-1752 and 1753
9 December 2008]; R v Wallace [HC Palmerston North CRI-2008-054-3581
13 March 2009]; R v Hertnon [HC Palmerston North CRI-2007-031-536
18 December 2009]; R v Morrison [HC Auckland CRI-2009-004-006524 28 July
2009]; and R v Seymour [HC Whangarei CRI-2009-027-001356 3 February 2010].
[12] Having determined a starting point I turn now to consider aggravating and personal factors personal to each of you.
Mr Baird
[13] I start with Mr Baird.
[14] You are 42 years old. You have a six year old son. Your wife, and the mother of your boy, died five years ago. Since her death, you have been the sole care-giver for your boy. You receive the Domestic Purposes Benefit and work part time – about 10 hours a week.
[15] You told the probation officer that you have had financial pressures and your house is to be sold via a mortgagee sale. You said that the reason you were involved in the offending was to help with your financial pressures. Not surprisingly, you are now concerned about how your offending will affect your son and the last thing you want is to lose him.
[16] You have no previous convictions. You are assessed as having a low risk of reoffending.
[17] As well as the probation report, I have a letter from you and a number of other letters which have been submitted on your behalf. One of those letters is from a counsellor you have been seeing regularly since June of this year. The counselling has focussed on such things as grief, decision making and life plans. There are also letters from family and friends. All of these have been submitted in support of a sentence of home detention rather than prison. The letters refer to the difficult time you have had since your wife’s death and attest to you being a good father to your son.
[18] In light of this information there are no aggravating factors personal to you that would increase your sentence above the three year starting point.
[19] As to mitigating factors, counsel are agreed that you entered your guilty plea at the first reasonable opportunity and that a discount of 33 per cent is available to you. I consider that you are also entitled to some credit because you have no prior convictions. Before considering the relevance of your role as a father, the sentence I would impose, putting aside that factor, would be a little under two years’ imprisonment. That qualifies as a short imprisonment term, which means I am to consider whether a sentence of home detention is appropriate.
[20] I do not propose to make any further discount for your remorse. The 33 per cent for your guilty plea allows for that already. However in considering whether a sentence of home detention is appropriate, it is relevant for me to consider the impact of a sentence of imprisonment on your role as a father. It would be unfortunate, for you and your son, if you were to be taken away from him. Of course you should have considered this before becoming involved in this venture because the starting point for this kind of offending is imprisonment, but I am sure that this will have been quite a wakeup call for you. Your son provides you with a very real incentive not to offend in this manner again. It seems that, as a result of this offending, you have already taken steps to assist you to make better decisions through your counselling sessions. These things are compelling reasons for imposing a community based sentence rather than sending you to prison.
[21] I consider that a sentence of 11 months’ home detention is appropriate. I have considered whether to impose community work with that. I note that you already do some part-time work and with that, as well as the demands of looking after your boy, I have decided that community work would serve no sufficiently useful purpose.
[22] Your sentence will therefore be one of 11 months’ home detention. The conditions will be as recommended in the report from the probation officer. This sentence applies to both charges and is to be served concurrently.
Mr Riordan
[23] I turn now to consider you Mr Riordan. You are 41 years old.
[24] You left school at a young age, having had learning difficulties which in turn led to behaviour issues. You worked for a period but since 1999 have been in receipt of a sickness benefit for back pain, which has been attributed to a car accident and a sports injury.
[25] Prior to your remand in custody, you lived alone in a hut accessed by a 20 minute walk through bush. You have convictions relating to the period 1988 to
1999. These are mostly alcohol related offences and the other offending of disorder, obstruction, wilful damage and wilful trespass and these are probably related to your alcohol use as well. You have a conviction in 1999 for possession of a cannabis plant and another conviction for possession of cannabis in 2003. For these two convictions small fines were imposed.
[26] You told the probation writer that you last drank alcohol in 1998, recognising that it was a problem for you. You have been using cannabis regularly since then, which you say has helped to alleviate the pain from your back. You are assessed as having a low risk of reoffending.
[27] The report from alcohol and drug assessment provides similar information to that in the probation report. You have agreed to attend alcohol and drug services to review alternative pain management.
[28] There are letters that have been written by people in the community who know you. They have some very positive things to say about you. For example, for some years you lived next to an elderly couple, Mr and Mrs Riley. Mr Riley is now deceased, but Mrs Riley has written in to say that you were a very kind, courteous and trustworthy man who always came to help them and others when needed.
[29] I do not regard your previous convictions as warranting an uplift to your sentence. They are mostly different in kind and relate to a different period in your life. The cannabis convictions are for possession and are relatively minor in the scheme of things. However, what it does mean is that unlike Mr Baird, you cannot call on the absence of previous convictions in mitigation.
[30] The Crown and your counsel are agreed that you are entitled to a 33 per cent discount for your guilty plea at the first available opportunity. Unlike Mr Baird you do not have the responsibility for a child. However I acknowledge that you have already spent over two months in custody. That I accept would not have been easy and will have served as some deterrence.
[31] I am of the view that you too should receive a community based sentence. You have in the past made a contribution to the community in which you live through the help you have provided to others. Your offending seems to have arisen out of your heavy cannabis use, during a lengthy period as a sickness beneficiary because of your back. If you are able to find some suitable light work and address your cannabis dependence, then you will better contribute to society. Your ability to address your alcohol dependence and your kind nature suggest that you have it in you to do this.
[32] I am therefore going to impose a sentence of home detention together with some community work. I consider that this is fair as between Mr Baird and yourself because of your different personal circumstances which I have discussed. The community work will need to be suitable for someone with your back problems. I hope that the community work will enable you to gain some work skills to assist you going forward. Taking into account that you have been in custody since early June 2010 I am going to impose a sentence of home detention of 10 months. Accordingly you are sentenced to a period of 10 months’ home detention, together with 150 hours community work. These sentences apply to each charge but are to be served concurrently.
[33] The conditions of your sentence of home detention will be as per the probation officer’s recommendation, which include the need to undertake and complete intervention to address drug abuse as directed by the probation officer.
[34] You may stand down now.
Mallon J
0
0
0