R v C HC Greymouth CRI 2010-018-530

[2010] NZHC 1477

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI 2010-018-000530

REGINA

v

C

Hearing:         24 August 2010

Counsel:         M G Robinson for Crown

S J Hembrow for Prisoner

Judgment:      24 August 2010

SENTENCING REMARKS OF FOGARTY J

[1]      Mr C   you appear for sentence having pleaded guilty to one charge of possession of cannabis for supply laid pursuant to s 6(1)(f) of the Misuse of Drugs Act 1975.

[2]      In April last two police officers  entered  a property conducting a routine enquiry on another matter and detected a strong smell of cannabis from a garage. Invoking their powers of entry in those circumstances under the Act they went inside the garage and found a large amount of cannabis material in various stages of the drying process.  I have seen both the black and white and coloured photos of what they found and there is no doubt that this was an organised process designed to produce commercial quantities of cannabis.  The cannabis was in various stages of

preparation.   But it is common ground that if the process had been allowed to

R V C HC GRY CRI 2010-018-000530  24 August 2010

complete it would have produced in the order of ten kilograms of cannabis which has a street value of $100,000.

[3]      You have cooperated with the police from the outset, which is to your credit. The police, however, doubt your proposition that you found the cannabis while out hunting.  However, for the purposes of sentencing you get the benefit of the doubt and I am sentencing you on the basis of what has been proved, namely, the finding of a large amount of cannabis in the shed being prepared for commercial supply.

[4]      I have had helpful submissions from both counsel analysing recent decisions. I have been impressed by recent decisions of my brother and sister Judges, Mallon J earlier  this  year  in  R  v  Baird  and  Riordan  HC  Nelson  CRI  2010-042-1994,

17 August  2010;    White  J,  also  earlier  this  year,  in  R  v  Yates  HC  Whangarei CRI 2009-044-2520, 7 May 2010;  and to some extent Hugh Williams J, again this year, in   R v Merton HC Auckland CRI 2009-044-2520, 7 May 2010.   Based on those cases I think your level of offending falls within what we call category 2 set out in the Court of Appeal decision R v Terewi [1999] 3 NZLR 62. I think the offending in this case is slightly less serious than the offending in Baird  and Riordan.

[5]      There is a principle Mr C   of treating, as far as we can, offenders equally and that is what I am doing comparing the cases.  On that basis the starting point for sentencing you cannot be higher than three years and arguably should be slightly less than three years given that Baird and Riordan seems to have been slightly different and more serious.  It involved a cannabis plot worth some $300,000 with three offenders involved.

[6]      Looking at your personal circumstances there is no basis for lifting from three years.  You do not have a previous drug offence history.  You have had some small run-ins with the law, of no great significance, and should not have held you back from becoming a productive member of the community, probably more relating to being a bit wild as a young man.

[7]      So, I am then, staying with the proposition that a prison sentence of no more than three years could be applied to you, perhaps slightly less.   I then take into account that you are entitled to a full one-third discount on that because you cooperated with the police and you admitted guilt and took responsibility right from the outset.  That reduces your maximum sentence to two years or slightly less.

[8]      In  2007  Parliament  amended  the  Sentencing  Act  2002  reinforcing  the importance of the least restrictive sentencing.  As the Court of Appeal has pointed out this also was for the purpose, quite consciously, of Parliament to reduce the number of people in prisons.   You get the benefit of that shift in policy and particularly it is appropriate for you to be considered for home detention because you have never been to jail before.

[9]      The  Crown  have  asked  for  a  prison  sentence  on  the  basis  that  cannabis growing is a regional problem here on the Coast and a strong signal has to be sent out.   However, you get, as I said the benefit of the doubt as to whether you grew this crop at all and your statement to the police from the outset was that you were just overwhelmed by temptation, having found this crop, to turn it into money.  You may have been, and I am speculating here, tempted to do that because of the rather large bank debt that you had at the time.  I am pleased to hear that you have reduced that by the sale of land.

[10]     As I said to Mr Hembrow, I think it is a judgment call by me.   I have considered seriously sending you to prison.   I have been influenced though by the references that have come from the community.  So in the end I have decided that I will sentence you to home detention.

[11]     Then, turning my mind to the question of home detention, it seems to me that if you were sentenced to two years imprisonment you would actually serve one year in prison.  That is how it works in the normal course.  I think there is a case for you getting less than two years because of the comparison with the Baird and Riordan case.  If you were sentenced to about 18 months in prison you would serve nine, and I am using that as a formula.  Part of my reasoning is that although home detention, Mr Robinson argued, is less than a prison sentence, there is quite a lot of evidence

that offenders find home detention an extremely difficult sentence to serve.  Indeed there are some cases where offenders prefer to go to prison rather than have home detention.  They prefer a short spell in prison.

[12]     I am also impressed by the fact that  you are  a carpenter and a talented member of the community and Mr Hembrow has rightly suggested that community work would be an appropriate way to constructively respond to the community as a result of this offending.

[13]     Therefore,  I  have  built  up  a  sentence  which  is  intended  to  be  at  least equivalent to nine months in prison, on the assumption that home detention is actually, with the stigma associated with it, and with the difficult conditions such as sitting at  home every evening  and  not  able to  participate in  normal  life in  the community,  a hard sentence to perform.

[14]     For these reasons, I am sentencing you to seven months home detention plus

300 hours of community work, and I am heartened that the probation officers think that they can find suitable community work taking advantage of your skills.  I just want to reiterate again I am sentencing you on the basis and in the very real hope that this will be the last time that you will appear in Court.  The probation officers are of the view that you are at very low risk of reoffending and I hope that this will mark a turning point in your life.

[15]     The details of the home detention sentence are:

•The start date will be deferred until Thursday, 26 August 2010.  You will remain on bail on the same terms until that date.   I defer the sentence to start on that date.

•You  are  to  reside  at  23B  Palmerston  Street,  Greymouth,  for  the duration of the sentence.

•You are to undertake an alcohol and drug assessment as directed by the probation officer.

•You are to undertake any alcohol and drug counselling program as directed by and to the satisfaction of the probation officer and service provider.

•You are to abstain from the consumption of alcohol and illegal drugs for the duration of the sentence.

•You are to maintain an alcohol and drug free property for the duration of the sentence.

•You are directed to be present at 23B Palmerston Street, Greymouth, on  Thursday,  26  August  2010,  and  to  await  the  arrival  of  the probation officer and security officer who will be installing the monitoring equipment.

•There will be the usual order for destruction of all the cannabis plant material.

Solicitors:

Raymond Donnelly & Co, Christchurch, for Crown

S J Hembrow, Christchurch, for Prisoner