R v Brown HC Whangarei CRI 2010-019-2895

[2010] NZHC 1876

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2010-019-2895

THE QUEEN

v

ASHLEY NATHAN BROWN

Hearing:         21 October 2010

Appearances: Mr M B Smith for Crown

Mr A M Dooney for Prisoner

Judgment:      21 October 2010

SENTENCING REMARKS OF LANG J

Solicitors/CounselL

Crown Solicitor, Whangarei

Mr A M Dooney, Whangarei

R V BROWN HC WHA CRI-2010-019-2895  21 October 2010

[1]      Mr Brown, you appear for sentence having pleaded guilty in the District Court to a charge of cultivating cannabis.  The maximum sentence for that charge is a term of imprisonment for seven years.  The District Court declined to sentence you because it had the jurisdiction only to impose a sentence of two years imprisonment. It committed you to this Court for sentence.

The facts

[2]      The charge to which you have pleaded guilty arises out of a police operation targeting a wide variety of drug-related activity in the Northland area.  You were not initially a target of the operation but, through intercepted communications, the police came to learn that you were involved in an operation in which cannabis was being cultivated.  Your role within that operation was to tend to the plants, in the sense of visiting the address where they were being grown and watering them and tending to their needs generally.  The Crown has described you as the “grower”.

[3]      The police did not initially know where the operation was being carried out. Ultimately, however, the police discovered an indoor cannabis growing operation in a derelict bach.  This consisted of a total of 491 cannabis plants.  Of these, 280 were cloned seedlings and 211 were mature female plants.  The plants ranged in height from between one metre and 1.5 metres.  All of them were in individual pots of soil in a healthy condition and in the early stages of flowering.  To assist in their growth pattern, high density lights had been suspended above the plants and set on 12 hour cycles.

[4]      The police estimate that the plants would have yielded, on average, four ounces of saleable cannabis per plant.  This means that approximately 122 pounds of cannabis could have been produced by the operation.  The current street value of a pound of cannabis is $3,200.   As a result, taken at street value, the cannabis was worth about $390,000.

[5]      The crop had not been the subject of previous growing cycles.  This appears to have been the first time in which a crop had been brought to fruition.  It is clear, however, from the intercepted conversations that clones were being used and that

cuttings were being taken to increase the number of plants in the crop.  The sheer number of plants alone demonstrates the scale of the operation.

[6]      Your  fingerprints  were  located  inside  the  bach  and  on  equipment  in  the vicinity of the growing operation.

[7]      It is necessary for me to make a determination as to where you fit within the people who were involved in this operation.  The police intercepted communications between yourself and other persons.   In total, five persons were involved in the operation.  The Crown accepts that you were not an instigator.

[8]      It is evident to me from the intercepted communications that are referred to in the summary of facts that other persons were treating the operation as their own.  To the extent that you were involved in these communications, it was on the basis that you were being sent, or were agreeing to go, to the house to tend to the plants.  I therefore  accept  that  yours  was  very much  a  “hands-on”  role  in  the  operation. Others were responsible for organising it and, I am satisfied, were also going to receive the lion’s share of any profits.   Nevertheless, this was a substantial commercial growing operation and there must have been some expectation on your part that you would receive something once the crop was harvested.

Sentencing Act 2002

[9]      In sentencing you, I have to bear in mind the purposes and principles of sentencing set out in the Sentencing Act 2002.  As you probably know, in any case involving cannabis growing or drug-dealing, issues of deterrence and denunciation come to the forefront.  People who grow substantial quantities of cannabis routinely go to jail because that is the only way in which the purposes and principles of sentencing can properly be applied.

[10]     The real issue to be determined in sentencing you is the need to select a sentence that is consistent with those imposed in other broadly similar cases and that properly reflects your role in this particular cannabis-growing operation.

Starting point

[11]     The first step in the sentencing process is to select a starting point for your offending.  This means the sentence that your offending would attract having regard to all its features, but putting to one side factors that are personal to you.

[12]     Counsel agree that the leading authority in this area is a decision of the Court of Appeal in R v Terewi [1999] 3 NZLR 62. In that case the Court of Appeal identified three bands of offending in relation to the cultivation of cannabis. Counsel agree that your offending fits within the third category identified in Terewi.   This relates  to  large  scale  commercial  operations  that  have  degrees  of  sophistication within them.  The operation in which you were engaged clearly has those features. The Court of Appeal said offending within this category will attract a starting point of around four years imprisonment.

[13]     The only dispute in the present case is where, in relation to that starting point, your offending fits.   The Crown says that a starting point of five to six years is warranted.  Your counsel submits that your offending falls towards the very bottom of Category 3.

[14]     I accept that, overall, the Crown may be correct in saying that those primarily responsible for the operation should face a starting point of around five years imprisonment.   I am satisfied, however, that your role was significantly less than those who instigated the operation.

[15]     Counsel have referred me to a number of cases.  I consider the most relevant to be a case called R v Hati HC Tauranga CRI 2003-470-005743, 3 March 2004.  In that case the police had uncovered a reasonably sophisticated growing operation comprising a greater number of seedlings than was found in your possession, but a lesser number of mature plants.  The Judge in that case adopted a starting point of four years imprisonment.

[16]     The fact that there were a greater number of mature plants in this case means that the starting point that I select is a little higher than that in Hati.  I consider that a

starting point of four years two months imprisonment is appropriate having regard to all of the factors relevant to the offending.

Aggravating factors

[17]   The Crown has pointed out that you have a large number of previous convictions.   As you probably know, previous convictions can amount to an aggravating factor.   That means a factor that makes your current offending more serious.  It can have that effect because it demonstrates that you have been prepared to offending again, notwithstanding your knowledge that offending such as this can produce serious consequences if you are detected.

[18]     Although you do have a large number of previous convictions you have no drug-related convictions  and, in particular, nothing relating to the cultivation of cannabis.  For that reason I do not propose to increase the starting point that I have selected to take into account your previous convictions.

[19]     I now need to determine the extent to which I should reduce the starting point that I have selected to reflect mitigating factors.

Mitigating factors

[20]     You appear for sentence at 42 years of age.  You have clearly had difficulties in your life and this has led you to the path of offending that has produced the convictions to which I have referred.

[21]     Quite  clearly,  you  had  a  serious  pattern  of  alcohol  use  until  relatively recently.   To your credit, however, you have virtually always remained in employment.

[22]     I consider that the only mitigating factor that I can realistically take into account is your guilty plea.  As the Crown acknowledges, this came at a relatively early stage.  You were initially charged on 7 April 2010 and appeared for the first time in the District Court on that date.   You were then remanded on two further occasions  whilst  your  counsel  obtained  disclosure.    By this  stage  a  depositions

hearing had been set.   You pleaded guilty shortly before the committal hearing, although by that stage briefs of evidence had been prepared.   The fact that your guilty plea was eventually entered on 3 June 2010 means, however, that it was entered within two months of the date of your first appearance.  Whilst I cannot give you a credit of one-third, as would be appropriate for a guilty plea entered at the first opportunity, I propose to give you a credit of more than 25 per cent to reflect your early guilty pleas.

[23]     I propose to deduct 14 months, one year two months, from your sentence to reflect your guilty plea.

Sentence

[24]     On the charge to which you pleaded guilty you are sentenced to three years imprisonment.

Order

[25]     I reserve leave to the Crown to apply for an order for the destruction of the equipment and material found at the drug growing premises in the event that that should be necessary.

Lang J