R v Bell
[2012] NZHC 1733
•17 July 2012
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2012-019-2716 [2012] NZHC 1733
THE QUEEN
v
MICHAEL JAMES BELL
Hearing: 17 July 2012
Counsel: S N Cameron for Crown
J Raleigh for Prisoner
Judgment: 17 July 2012
SENTENCING REMARKS OF LANG J
R V MICHAEL JAMES BELL HC HAM CRI-2012-019-2716 [17 July 2012]
[1] Mr Bell, you appear for sentence today having pleaded guilty in the District Court to charges of producing the Class B controlled drug cannabis oil, being in possession of the Class C controlled drug cannabis for the purpose of sale or supply and cultivating the Class C controlled drug cannabis. The maximum penalties for those offences are sentences of 14 years, eight years and seven years imprisonment respectively.
[2] The District Court committed you to this Court for sentence.
The facts
[3] The facts that gave rise to the charges against you are contained in a summary of facts with which you take no issue.
[4] The police executed a search warrant on a rural property near Cambridge on
19 April 2012. The property comprised a 60 acre farmlet that had a number of buildings on it. One of the buildings towards the rear of the property was a large stables. It transpires that you had access to those stables through an arrangement with the owner of the property.
[5] When the police searched the stables, they found a sophisticated security and locking system in place. When they went inside, they found large quantities of cannabis plant. They found more than 10 kilograms of cannabis head material. They also found approximately five kilograms of much lower grade cannabis cabbage material.
[6] There is no evidence before me as to the likely value of the cannabis that the police found. Nevertheless, ten kilograms of cannabis head is a significant quantity of cannabis.
[7] The police also found a saucepan that contained traces of cannabis oil, together with a cooker that had obviously been used to heat the mixture. Nearby
were three empty, or partly empty, containers of isopropyl alcohol, a key ingredient in producing cannabis oil from cannabis plant. The cannabis cabbage material that the police found would also be ideal for use in manufacturing cannabis oil.
[8] When the police spoke to you about what they had found, you readily acknowledged your involvement in the cultivation of the cannabis. You said that you needed the money for your father.
[9] The police went back to the property approximately five days later, and searched around the back of the stables. There they found the remains of a reasonably large cannabis plot. Three cannabis plants remained growing, and the police found approximately 100 holes where other plants had been dug out. This would be broadly consistent, in my view, with the quantity of cannabis plant material the police found inside the shed. The cannabis plot had a watering system installed, but was otherwise reasonably rudimentary in nature.
The circumstances in which guilty pleas were entered
[10] It is necessary to say something about the circumstances that led to you being before this Court for sentence.
[11] You appeared for the first time in the District Court on 26 April 2012, when you were remanded through to 27 April 2012. On that date you were granted bail and remanded to appear on 25 May 2012. When you appeared then, the presiding Judge made the following notations on the file:
S.I. 3Y less 25% discount
Stood down
G Jurisdiction declined
FRBTC HC Hamilton 17/7/12 9 am. PSR (EMS).
- S.I. notes to be transcribed.
[12] I take this notation to record the fact that, presumably at the request of your counsel, the Judge gave a sentence indication. This was to the effect that he would take a starting point of three years imprisonment on all charges, and would apply a
25 per cent discount, presumably to reflect guilty pleas. After standing the matter down so that your counsel could discuss the sentence indication with you, you entered guilty pleas to all charges. The Judge then declined jurisdiction to sentence you, because he only had the power at that stage to sentence you to 12 months imprisonment. For that reason he remanded you to appear in this Court for sentence. He also directed that his sentence indication marks were to be transcribed.
[13] Unfortunately, however, the Judge’s sentence indication notes have not been transcribed. For that reason I have not had the benefit of the reasoning process by which he concluded that a starting point of three years imprisonment on all charges was appropriate.
[14] I record, also, that counsel for the Crown sought to have me revisit the Judge’s sentence indication. It asked me to consider a starting point of three years imprisonment in relation to the charge relating to possession and cultivation of the cannabis plant, with an uplift of six months to reflect the offending relating to the cannabis oil. Counsel for the Crown submitted that the prosecution had not had an opportunity to make submissions at the sentence indication hearing in the District Court, and for that reason this Court should revisit the issue of the starting point to be selected in respect of Mr Bell’s offending.
[15] Difficulties would arise if I adopted that suggestion. Mr Bell entered guilty pleas in the District Court on the basis of the Judge’s sentence indication. It would be wrong in principle for this Court to revisit that issue at this point. At the very least, the Court would be required to vacate the guilty pleas if Mr Bell sought that, and to allow him to enter pleas of not guilty should he wish to do so.
[16] As matters transpire, it is not necessary for me to adopt that approach, because I agree with the starting point and level of discount the Judge selected.
Sentencing Act 2002
[17] In any case involving commercial drug cultivation and dealing, and your offending falls within that description because the quantity of plants involved could not possibly be for personal use, issues of deterrence and denunciation are to the forefront. People who cultivate and then on-sell, or supply, large quantities of cannabis must know that imprisonment is a likely outcome if they are caught. That is especially so when the production of cannabis oil is carried on as well.
Starting point
[18] Although the Judge in the District Court has already set the starting point, it is worthwhile recording the basis on which I consider that is likely he did so.
[19] The starting point to be selected in any case involving commercial cultivation and dealing in cannabis is governed by a decision of the Court of Appeal known as R v Terewi.[1] In that case the Court of Appeal identified a band of offending involving low-level cultivation of cannabis but that nevertheless has a commercial flavour. In such cases, a starting point of between two and four years imprisonment will be selected.
[1] R v Terewi [1999] 3 NZLR 62 (CA).
[20] I take your offending to fall within that band, because it related to the cultivation of 100 plants for commercial gain. That is a reasonably significant quantity of plants but, nevertheless, it is not nearly as large as this Court often sees.
[21] In addition, I accept your counsel’s submission that the cannabis plot can be properly categorised as being reasonably rudimentary in nature. The only artificial growing aid was the watering system. It was not nearly as sophisticated as, say, an indoor growing operation containing sophisticated elements such as automated watering, lighting, and heating equipment.
[22] That said, your offending is certainly not at the bottom level of this category. For that reason, if I was starting afresh, I would select a starting point of around two
years six months imprisonment to reflect the offending relating to the cultivation and possession of cannabis plant for supply. To that, an uplift needs to be applied to reflect the offending relating to the cannabis oil.
[23] Any offending relating to the manufacture of cannabis oil would attract a sentence of at least around 12 months imprisonment. Having regard to totality principles, I consider an appropriate uplift to reflect that factor in your case is six months, thereby producing the end starting point of three years imprisonment that the Judge selected.
Aggravating factors
[24] Although you have previous convictions for cannabis-related offending, the Crown does not seek an uplift to reflect that fact. Although that may be regarded as somewhat generous, it no doubt reflects the fact that you have never been convicted in the past on any charge relating to the commercial cultivation of, or dealing in, cannabis.
[25] You need to know, however, Mr Bell, that you are now viewed by the courts as a drug dealer and commercial drug cultivator. If you appear again on charges such as this, I have no doubt that an uplift will be applied to reflect the fact that you have not learnt a lesson from the sentence that I am proposing today.
Mitigating factors
[26] There is no dispute that a reduction of 25 per cent is warranted to reflect your guilty pleas, which came at an early stage. Your counsel submits, however, that I should also apply a discount to reflect other factors personal to you.
[27] First, she points out that you have never been involved in this type of commercial drug dealing activity before. I accept that fact, but it really amounts to the absence of an aggravating factor rather than a mitigating factor.
[28] Secondly, she points out that you have been a long-term user of cannabis yourself, and that you would be a good candidate for rehabilitation. You also say
through her that you would be keen to participate in some form of drug rehabilitation programme.
[29] Thirdly, you have recently discovered that your partner is pregnant. The fact that a sentence of imprisonment will keep you away from your home will be an added burden for you.
[30] Fourthly, she points out that you did not make any profit from the growing of the cannabis. That submission is correct as far as it goes, in the sense that I accept you may not have received any of the sale proceeds for your personal benefit. Nevertheless, you were obliged to sell the cannabis, so there were distinct aspects of commerciality to your activities.
[31] The most important factor your counsel relies on is that your father suffers from very real health difficulties. He relies on you to assist him with his medical equipment, and also to transport him to medical appointments.
[32] Your counsel submits that a further reduction of the sentence is warranted to reflect these factors, and thereby to bring your end sentence down to two years so that a sentence of home detention can be considered.
[33] The Court of Appeal has said on many occasions that in cases involving commercial dealing in drugs, very little account can be taken of factors personal to the offender.
[34] I am prepared to make a modest adjustment to reflect the factors to which your counsel has referred. I therefore propose to reduce your sentence by two months to reflect them. This leaves me with an end sentence of two years one month imprisonment. For that reason, the issue of home detention does not arise.
[35] I record, however, that even if your sentence had been one of two years or less, I would not have imposed a sentence of home detention. You have a very long list of previous convictions. Many of these are for breaching Court orders, such as breaches of the terms of sentences of periodic detention.
[36] Secondly, your counsel has advised me this morning that you are to appear later today for sentence in the District Court on charges of being in possession of cannabis and methamphetamine. You will also be sentenced on a charge of driving with excess breath alcohol. This is your third, or subsequent, conviction on such a charge.
[37] These charges apparently arose out of an incident that occurred on 17 June
2012, when the police stopped a vehicle in which you were travelling and found cannabis and methamphetamine in your possession. They also found that you were driving whilst under the influence of alcohol.
[38] Those offences occurred, of course, whilst you were on bail awaiting sentence in this Court. You committed the offences in the knowledge that your counsel was going to advance a submission that you should receive a sentence of home detention. Any chance you might have had, Mr Bell, of receiving a sentence of home detention would have disappeared once you breached your bail conditions by consuming alcohol and being in possession of drugs just weeks before you were due to be sentenced on the present charges. For those reasons, home detention would simply not have been an option.
Sentence
[39] On each of the charges to which you have pleaded guilty you are sentenced to two years one month imprisonment. Those sentences are to be served concurrently.
Order
[40] I make an order for destruction of the drug-related paraphernalia that the police found in and around the shed in which they found the cannabis. In the event that there is any dispute as to which items may be drug-related, I reserve leave to
both parties to ask the Court to determine the matter.
Lang J
Solicitors:
Crown Solicitor, Hamilton
Counsel:
J Raleigh, Morrinsville
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