R v Bright

[2013] NZHC 582

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2012-019-003826 [2013] NZHC 582

THE QUEEN

v

ROGER DAVID BRIGHT

Hearing:         25 March 2013

Counsel:         P Cornegé for the Crown

M Talbot for the Prisoner

Judgment:      25 March 2013

SENTENCING NOTES OF WYLIE J

Distribution:

P Cornegé: [email protected]

M Talbot: [email protected]

R V BRIGHT HC HAM CRI 2012-019-003826 [25 March 2013]

[2]      Mr Bright, you appear for sentence today having entered guilty pleas to five charges in the District Court at Huntly on 10 July 2012.  The details of the charges are as follows:

(a)      Cultivating cannabis.   That is an offence pursuant to the Misuse of Drugs Act 1975.    It is punishable by a maximum term of imprisonment of seven years.

(b)Possession of equipment and materials with intent to use the same to cultivate cannabis.  This is also an offence pursuant to the Misuse of Drugs Act.  It is punishable by a maximum term of imprisonment of five years.

(c)       Theft of electricity.   This is an offence in terms of the Crimes Act

1961, and it is also subject to a maximum term of imprisonment of seven years.

(d)Unlawful  possession  of  a  firearm.    This  is  an  offence  under  the Arms Act 1983, and it is subject to a maximum term of imprisonment of four years, and/or a $5,000 fine.

(e)      Unlawful possession of ammunition. This is also an offence under the Arms Act, again subject to a maximum term of imprisonment of four years, and/or a fine of $5,000.

[3]      Following your guilty pleas in the Huntly District Court, you did not seek bail, and you have been remanded in custody since 10 July 2012.  You were due to be sentenced on 14 September 2012, but the District Court declined to sentence you, and remitted you to this Court for sentence.

[4]      On 7 June 2012, the police executed a search warrant on a property owned by you  at  Smith  Avenue  in  Huntly.    They  found  an  elaborate  cannabis  growing operation.  The three bedrooms inside the house had been set up as growing rooms, with dedicated lighting and air filtration systems, both controlled by timers.  There were 116 mature cannabis plants and 26 cannabis seedlings.

[5]      A line tap had been installed to divert electricity from the mains power cable to the address.   Power was then fed to the three growing rooms via a secondary switchboard.  The power usage was not being registered on the main switchboard. The amount of power being used to run the three growing rooms was estimated at approximately nine kilowatts per day, worth approximately $30 per day.  The total amount of power stolen is estimated to be worth $4,500.   The power belonged to Genesis Energy.

[6]      The police found a black semi-automatic 12-guage sawn off shotgun in the ceiling space above the laundry.   There was a box beside the shotgun containing

11 rounds of 12-guage ammunition. You do not hold a firearms licence.

[7]      The police also found a cannabis bong and a small amount of cannabis in the lounge, as well as a large array of equipment in the garage.  The equipment included lighting systems, air filters, ballasts, ducting, electrical cables and switchboards, all intended to be used for cultivating cannabis.

[8]      Cannabis grown indoors can  achieve three to four cycles per  year.   The expected yield of a single plant ranges from one ounce to one and a half ounces of cannabis per plant.  An ounce of dried cannabis sells for somewhere between $300 and $350.   Based upon the 116 mature plants found, the gross return would have been at least $34,800 per cycle, if the cannabis head was sold in ounce form.  If three cycles had been grown in the course of a year, the operation would have returned at least $104,400.

[9]      You are now 62 years old.  You live alone, and have no fixed abode.  You have five adult children from three partners.   Four of your grandchildren live in Australia, and you told the the probation officer who interviewed you that you were motivated in your present offending to secure the necessary funds to reconnect with them.

[10]     Your attitude to your overall offending was regarded by the probation officer as being “antisocial”.  He noted that you appear to have learnt little from your past convictions and considered that you have an attitude of entitlement.

[11]     You have a number of drug-related convictions, ranging from 1976 through to 1996.  These include a conviction for the cultivation of cannabis.  You also have a conviction for operating a vehicle carelessly, convictions for violence-related offending, a conviction for dishonesty, and convictions for various property-related offences.  You started offending in the late 1960s, and you have been a consistent offender ever since.

[12]     Your risk of re-offending and of causing harm to others was assessed as being high, given your criminal history.

[13]     You have a cannabis habit of some 40 years standing.  You admitted to the probation officer that you smoke some seven to eight cannabis joints a day.   You were assessed as being unmotivated to relinquish this habit; rather, it was noted that you referred positively to your enjoyment of cannabis.   You did however express some remorse, and said that you regretted what you had done to your community. You added that you had lost the friendship of your co-offender as a result.

[14]     The probation officer recommended a sentence of imprisonment.  You have responsibly accepted that such a sentence is appropriate.

[15]     The Crown sought forfeiture of the Smith Street property, and also another property owned by you at Paki Street in Huntly.   It said that both properties were used as “instruments of crime”, as defined in the Sentencing Act 2000.  It noted that the offences committed by you are qualifying instrument forfeiture offences.   It recorded that the Smith Street property was used for the cultivation of cannabis, and that it is therefore an instrument of crime.  It was purchased by a trust which you had settled in November 2011.  The offending for which you are before the Court today commenced approximately a month after you acquired the Smith Street property. The  Crown  says  that  given  the  sophistication  of  the  operation,  it  is  plain  that Smith Street was always intended to be used to cultivate cannabis.

[16]     The   Smith   Street   property   is   subject   to   mortgages   in   favour   of Westpac New Zealand Limited.   The lending by Westpac was made partly on the basis  of a security over  the Smith  Street  property,  but  also  a security over the Paki Street  property.    The  Crown  says  that  Smith  Street  could  not  have  been purchased unless security was available to Westpac over the Paki Street property, and that therefore Paki Street was also used to facilitate the commission of the crime.

[17]     Both properties are owned by the family trust which you settled, but you have effective control over both properties.  You are the only trustee and/or beneficiary. You are in a position to appoint or remove any final discretionary beneficiary, and you have the ability to appoint or remove a trustee.  Indeed, you have done so in this case.  Your son was also a trustee.   He opposed the grant of the forfeiture orders. However, you removed him as a trustee, with the effect that you are now the sole trustee. You do not oppose the making of the forfeiture orders.

[18]     As  at  18  June  2012,  the  Paki  Street  property  had  a  rating  valuation  of

$142,000.   The Smith Street property had a rating valuation of $100,000.   The balance owing under the mortgages to Westpac New Zealand Limited is $85,693.55. Consequently, the Crown has sought, and you do not oppose, forfeiture of the two properties, with a net value of $156,306.45.  I have, by consent, made a forfeiture order in respect of your interest in the properties today.

[19]     Mr  Cornegé  for  the  Crown  submits  that  your  cannabis  operation  was  a mid-level, relatively sophisticated commercial cannabis-growing operation, which had been operative for approximately 150 days.  He argued that the likely yield from the cannabis plants found on the property was worth at least $34,800 per cycle, and that the 26 seedlings found would have inevitably matured, and also have been of commercial value.  He argued that your offending falls into the mid to upper range of

category 2 in R v Terewi.1   He referred me to other similar cases, and submitted that

an appropriate starting point should be in the range of three years nine months to four years’ imprisonment.   He submitted that your offending is aggravated by the theft of the electricity and by the presence of the firearms and ammunition.  He noted your previous history, but also accepted that it has been some time since your last serious drug-related conviction.   No uplift for your previous criminal record was sought.  The Crown also accepted that you are entitled to a full credit for your early guilty pleas.  He submitted that a nominal end point in the range of two years nine months to three years’ imprisonment is appropriate.  He also acknowledged that you are entitled to a discount given the instrument forfeiture order that has been made, and accepted that a discount in the range of 18 months’ imprisonment is appropriate in that regard.

[20]     Mr Talbot, on your behalf, submitted that your offending falls into the low to middle range in band 2 in Terewi. He accepted that the number of plants, the sophistication of the growing operation, and the potential commercial value of the crop suggested a significant commercial enterprise, but noted that there was no indication of any commercial activity, and that there was nothing to suggest that any selling had occurred.  He argued that your primary motivation was to avoid having to spend money to purchase cannabis, given your chronic long-term marijuana addiction.  He also noted that you have stated that you had not really decided what to do with any surplus, and that the amount of electricity stolen added up to around 100 days’ usage, consistent with the period you claimed to have been growing cannabis.

He submitted that the starting point should be in the range of two and a half years to

1      R v Terewi [1999] 3 NZLR 62 (CA).

three  years’  imprisonment.    He  acknowledged  that  an  uplift  of  approximately

12 months is appropriate, to reflect the four additional charges and your previous relevant convictions.   He went on to argue that there are a number of mitigating factors, including your early guilty plea.  He also asked me to take into account your personal circumstances.   He noted that at the age of 13 you were involved in a serious  accident  that  fractured  your  skull,  and  that  this  has  caused  you  acute long-term pain, and resulted in permanent short-term memory loss.  He also noted that you have a minor form of epilepsy, and that since the 1970s, you have been using marijuana, for medicinal purposes.  He argued that you have been remorseful in a consistent and general sense, given not only your prompt guilty plea, but also evidenced  by  your  decision  not  to  apply  for  bail,  and  your  acceptance  of  the forfeiture of both properties.  He noted that you have expressed the desire to address your life-long addiction, and that you have been gainfully employed in the past.

Principles of Sentencing

[21]     In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act.  In particular, I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgement of your offending, and the need to denounce the conduct in which you were involved.  I am also mindful of the need to deter others from committing the same or similar offences.  This is a primary factor in offending of this kind.  I have also taken into account the gravity of the offending with which you were involved, including your degree of culpability.  I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels with similar offenders committing similar offences.   I am also mindful that I must impose the least restrictive outcome that is appropriate in the circumstances and I need to consider your rehabilitation in the circumstances which have arisen.

Analysis

[22]     The lead offence is the cultivation of cannabis.

[23]     The guideline judgment for sentencing in this area is the judgment of the Court of Appeal in R v Terewi.  It dealt expressly with the cultivation of cannabis, and identified three different categories of offending.  Both counsel accept that your offending falls within category 2 as discussed in Terewi.

[24]     Category 2 involves relatively small-scale cultivation for commercial ends. Within this category, a starting point of between two and four years’ imprisonment is normal, unless there were infrequent sales of a very limited extent, where a lower starting point may be appropriate.

[25]     Your offending was relatively sophisticated.   The growing operation was elaborate.  It involved light and infiltration systems, controlled by timers.  The police found 116 mature plants and 26 seedlings.  The estimated profit was at least $34,800 per cycle.  If three cycles had been grown, the operation would have returned at least

$104,400.  While the police did not find any paraphernalia associated with selling at the premises, it is clear that you were intending to sell at least some of the cannabis. You in effect accepted this in your discussions with the probation officer.  I accept that you have a cannabis addiction, and that it is probable that you were intending to consume part of the cannabis.  However, the scale and sophistication of the operation was such that it compels the conclusion that you were intending to sell a significant part of the cannabis which would have been produced.

[26]     I have considered comparable cases, involving similar operations, with a more or less similar number of plants.2   While each case turns on its own facts, they are all helpful in a broad sense.

[27]     I adopt as my initial starting point a sentence of three years and three months’

imprisonment in respect of your conviction for cultivating cannabis.

[28]     In my view, an uplift is required to reflect the related offending:

2        R v Karetai HC Invercargill CRI 2010-025-2751, 13 December 2010 – 100 plants – starting point of three and a half years’ imprisonment; R v Brammall [2012] NZHC 3374 – 183 plants – two years nine months’ imprisonment; R v Profner HC Hamilton CRI 2010-419-47, 15 July

2010 – three years’ imprisonment upheld on appeal; Hockly v Police [2012] NZHC 2938 – 863 plants – three years’ imprisonment; R v Kyle HC Auckland CRI 2010-044-002940, 27 July 2010

– 110 plants – starting point three and a half years’ imprisonment; R v Wallace HC Whangarei
CRI 2009-027-3138, 18 March 2010 – 139 plants – three years’ imprisonment.

(a)      First, there is the possession of equipment and materials for the cultivation of cannabis.

(b)Secondly, there is the theft of the electricity.   The total amount of power stolen from Genesis Energy is estimated to be worth approximately $4,500.  The trouble you went to to steal the electricity is concerning, and reflects the sense of entitlement which was discussed in the pre-sentence report.

(c)      Thirdly, and most significantly, there is the presence of the firearm and the ammunition.  The presence of a firearm and ammunition is a seriously aggravating factor in drug-related offending.3      The possession of firearms without a licence and in association with other drug-related offending is an anathema within our community.   The Courts have a clear obligation to impose sentences which express

society’s condemnation of the unlawful possession of firearms and

ammunition because of their potential for public danger.

[29]    Taking into the account the totality of your offending, in my view, the appropriate starting point in relation to all of your offending is one of four years’ imprisonment.

Aggravating/Mitigating Circumstances

[30]     You have an appalling criminal record.   Normally, I would treat that as an aggravating  feature.    However,  I  note  that  you  have  had  no  convictions  for drug-related offending since 1996.  Further, you have no other serious convictions over the last 15 or so years.  The Crown does not seek an uplift for your previous criminal history, and in the circumstances, I do not impose an uplift because of it.

[31]     On the other hand, I am not prepared to allow you any additional credit over and  above  your  guilty  plea,  for  the  remorse  and  personal  circumstances  which

Mr Talbot  has  referred  me  to.   Allowing  a  discount  for  an  early guilty  plea  is

3      R v McLean [2009] NZCA 465 at [24].

generally seen to encapsulate the remorse normally inherent in that plea, and only something further or exceptional can lead to a further discount.  Here, the various matters  which  Mr Talbot  has  referred  me  to  are  not,  in  my  view,  exceptional. Further, the claims made on your behalf by Mr Talbot are inconsistent with some of the comments you made to the probation officer.   Generally, the personal circumstances of a category 2 offender are not to be given much significance in the

sentencing process.4  The fundamental requirement is the deterrence of others.

[32]     I accept that you are entitled to a full discount of 25 percent for your early guilty pleas.5

[33]     Ordinarily,  that  would  take  the  end  sentence  to  one  of  three  years’

imprisonment.

[34]     I do, however, recognise the forfeiture orders which you have consented to. [35]     The Courts have accepted in a number of cases that it is appropriate to

discount a sentence where forfeiture orders are made.6   The most helpful decision is

that of the Court of Appeal in Macpherson v R.7    In that case, the Court of Appeal revisited a decision of this Court.  The High Court had adopted a starting point of four years and nine months’ imprisonment, but reduced that sentence on the basis of an instrument forfeiture order of approximately $380,000 equity in a residential property owned by the appellant.   The Court of Appeal reduced the instrument forfeiture order to $160,000.   There were no other mitigating features.   The end result was that the Court of Appeal allowed a deduction of two years from the starting point because of the instrument forfeiture order.

[36]     The  amount  the  subject  of  the   instrument   forfeiture  order  made  in

Macpherson was similar to that made in your case.

4      R v Terewi, above n 1, at [13].

5      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

6      R v Elliot HC Gisborne CRI 2010-416-65, 28 October 2011; R v Brazendale HC Auckland CRI

2009-092-17133, 20 August 2010 upheld on appeal [2011] NZCA 494, (2011) 25 CRNZ 580.

7      Macpherson v R [2012] NZCA 552 at [58]–[61].

[37]     Although there need not be any direct correlation between the value of the property forfeited and the amount of any discount given, in general terms, I accept that it is logical that the greater the loss to an offender from forfeiture, the greater should be the discount.8   The circumstances of the offending may also be relevant, as may the end sentence which will be imposed after a discount for the forfeiture orders has been made. As a general principle, offenders should not be able to, in effect, buy

their way out of a custodial sentence imposed in the public’s interests by agreeing to a forfeiture order.

[38]     In the present case, the instrument forfeiture order has not been challenged by you.    Indeed,  you  have  cooperated  in  making  the  same.    You  removed  your co-trustee who opposed the making of the order.  The instrument forfeiture order will result in the forfeiture of your total equity in the two properties — a sum of just over

$156,000. You have not argued hardship, notwithstanding that the effect of the order will be that you no longer have any interest in real estate. As a consequence, on your release from prison, you will be 62 years old.  You will have a limited working life ahead of you, and you will be in the position of having to start again in terms of property ownership if you wish to do so.  Mr Talbot tells me that you are happy to proceed down this path in order to get out of prison as soon as possible, and to return to gainful employment.

[39]     In the circumstances, I allow you a further discount of 18 months from the sentence I would otherwise have imposed to recognise the instrument forfeiture orders that have been made.

[40]     You  have  also,  through  Mr  Talbot  today,  consented  to  the  making  of  a reparation order in favour of Genesis Energy.  I am told that there is a bank account which is currently frozen which will be available to you when you are released from prison.  You do not know the precise amount in the bank account, but you anticipate that there should be sufficient funds in that account to allow for the prompt payment of the amount owing to Genesis Energy.   If there are not sufficient funds in the account  to  pay  that  amount,  you  have  agreed  to  pay  the  sum  outstanding  by

instalment payments.

8      R v Sharp HC Auckland CRI 2010-063-004641, 22 July 2011.

[41]     I allow  you a further discount of one month from the sentence I would otherwise  have  imposed  to  recognise  your  cooperation  in  paying  reparation  to Genesis Energy.

Sentence

[42]     Mr Bright, will you please stand.

[43]     In respect of the charge of cultivating cannabis, I sentence you to a term of imprisonment of 17 months.

[44]     In respect of the charge of possession of equipment and materials for the cultivation of cannabis, I sentence you to a term of imprisonment of nine months, to be served concurrently.

[45]     In respect of the charge of theft of electricity, I sentence you to a term of imprisonment of nine months, to be served concurrently.

[46]     In respect of the charge of possession of a firearm, I sentence you to a term of imprisonment of 12 months, to be served concurrently.

[47]     In respect of the charge of possession of ammunition, I sentence you to a term of imprisonment of six months, to be served concurrently.

[48]     I  am  satisfied  that  concurrent  sentences  are  appropriate,  given  that  the offending is part of a connected series of offences, occurring at the same time.  The end result is that the final sentence imposed is one of 17 months’ imprisonment. Notwithstanding the end term of imprisonment I have imposed, home detention is clearly inappropriate.  Both you and Mr Talbot have accepted that.

[49]     In regard to reparation, I make an order that the sum of $4,500 is to be paid to Genesis Energy within 14 days of the date of your release from prison if there are sufficient funds in your account to make that payment.  If there are insufficient funds available to make that payment, you are to pay to Genesis Energy such sum as is

available and to pay the balance by instalments of not less than $20 per week, such instalments to commence 21 days after the date that you are released from custody.

[50]     I make an order for the forfeiture of all drugs and drug-related equipment found in  the property at  Smith  Street.   That  is  an  automatic consequence of  a conviction pursuant to s 32 of the Misuse of Drugs Act.   The items are to be destroyed or otherwise disposed of pursuant to that section.

[51]     Mr Bright, you may stand down.

Wylie J