R v Chadwick

[2013] NZHC 1591

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2013-043-320 [2013] NZHC 1591

THE QUEEN

v

ALTEN SIMON CHADWICK

Hearing:                   27 June 2013

Counsel:                  J I Mooney for Crown

B Henderson for Prisoner

Sentence:                 27 June 2013

SENTENCING NOTES OF THE HON JUSTICE KÓS

[1]      Mr Chadwick, you have pleaded guilty to the following charges: (a)  possession of cannabis for supply;1

(b)      cultivating cannabis;2

(c)       stealing electricity (over $1,000);3 and

(d)      receiving stolen property.4

[2]      You appear for sentence in this Court after a District Court Judge declined jurisdiction.

1      Misuse of Drugs Act 1975, s 6.

2      Misuse of Drugs Act 1975, s 9(1).

3      Crimes Act 1961, ss 219, 223(b).

4      Crimes Act 1961, ss 246, 247.

R v CHADWICK [2013] NZHC 1591 [27 June 2013]

Summary of offending

[3]      A search warrant was executed at your address on 13 February 2013. The police found 17 tinnies (each containing approximately 0.8 grams of cannabis head), a box containing 1.1 grams of dried cannabis material, a jar containing 6.7 grams of dried cannabis material, 71 plants 30 – 40 cm tall, four dried plants 60 – 70 cm tall, two mature plants 120 cm tall, $3,420 cash inside a wooden clock, and garden mix, rooting hormone and other materials for propagation.

[4]      One of the two bedrooms in the house was set aside for cultivation. There were also two rooms underneath the house set up for cultivation.   The estimated harvest value of this operation is $99,400.

[5]      A power meter box had been bypassed.  Electricity worth $1,073 had been stolen.

[6]      The police also found a bag of tools worth $800 that had been reported stolen from a building site. These had been given to you in exchange for cannabis. This forms the basis of the receiving charge.

Your circumstances

[7]      You are 40 years old, and a heavy cannabis user. You were convicted of cultivation in May 1997, possession in 2000, and cultivation and possession for supply in December 2007.  You have 14 dishonesty convictions, including three for receiving.

Submissions

[8]      Counsel are agreed this case falls into category 2 in the guideline decision in

R v Terewi.5

[9]      The Crown submits aggravating features present include premeditation (this being an ongoing and sophisticated set up), the commercial element of the offending, and, particularly, your previous convictions for both cannabis offending and dishonesty.   Ms Mooney submits an appropriate starting point is three years imprisonment, with an uplift for the receiving, an uplift for the prior cannabis convictions of three months, reparation of $1073.10 for the theft, and then a 25% guilty plea discount.

[10]     Your  counsel,  Mr  Henderson,  submits  you  are  “hopelessly  addicted”  to cannabis.  You use one and a half tinnies – or 1.2 grams of cannabis – a day.  You started out cultivating for your own use which then intensified into operating your own tinnie house.   It is said that you use cannabis heavily as an emotional block against the memory of you killing your cousin Richard Waru in 1998.   You were charged with murder, but acquitted on the basis of self-defence.   Mr Henderson submits a finite sentence of around 2 years would be appropriate.  Reparation for the electricity is not practical as you have no disposable income or assets that could be sold. No challenge is made to the forfeiture of the $3,420.  Home detention is neither recommended nor sought. You accept that you will be imprisoned.

Starting point

[11]     This offending falls into category 2 in Terewi, in terms both of the cultivation and possession for supply charges.6   The Court of Appeal emphasised in Terewi that the paramount consideration in cannabis offending is the deterrence of others.

[12]     In terms of relativity, I find the offending in your case:

(a)      less serious than that in R v Butler,7  R v Collings,8  R v Elliot,9  R v Lloyd,10  R v Hawke,11  and R v Wallace12  - in which 36 to 48 month starting points were adopted;

(b)proximate in seriousness to the offending in R v Pearce,13 R v Middleton,14  R v Johanson15    and R v Connolly16  - in which starting points of 32 or 33 months were adopted;

(c)      more serious than that in R v White,17  R v Warren,18  R v Ellis19  and Police v Clothier20  - in which 27 to 30 month starting points were adopted.

[13]     This was clearly a commercial operation and not just for your personal use. I adopt a starting point of two years, eight months’ imprisonment (i.e. 32 months) for the two Misuse of Drugs charges, taken together.

[14]     Sentences of three months for each of the theft of electricity and receiving charges will apply.   They will be served concurrently with the Misuse of Drugs sentences.  However to reflect adequately the totality of your offending an overall uplift of three months will apply to reflect the additional impact of this offending.

[15]     The starting point for your offending is, therefore, two years and eleven

months’ imprisonment.

7      R v Butler CA221/04, 4 October 2004.

8      R v Collings [2008] NZCA 30.

9      R v Elliot HC Gisborne CRI 2009-016-3799, 27 August 2010.

10     R v Lloyd HC Dunedin CRI-2009-012-1521, 23 September 2009.

11     R v Hawke HC Auckland CRI 2009-044-010006, 24 August 2010.

12     R v Wallace HC Palmerston North CRI 2008- 054-3581, 13 March 2009.

13     R v Pearce HC Whangarei CRI 2008-088-2980, 9 December 2008.

14     R v Middleton [2012] NZHC 2869.

15     R v Johanson HC Palmerston North CRI-2011-054-2800, 13 December 2011.

16     R v Connolly [2012] NZHC 1950.

17     R v White HC Christchurch CRI 2010-009-7016, 23 September 2010.

18     R v Warren HC Hamilton CRI-2011-073-184, 13 September 2011.

19     R v Ellis HC Dunedin CRI-2010-012-786, 27 October 2010.

20     Police v Clothier [2012] NZHC 2348.

Aggravating and mitigating features

Aggravating features

[16]     As  I said  an  uplift  of  three  months  will  apply,  to  reflect  your  previous cannabis convictions, particularly those in 2007.  It is clear that you have not been deterred by prior imprisonment for cannabis offending.

Mitigating features

[17]     There is no argument that you are entitled to the full available discount for your guilty plea, of 25 per cent. That is, a discount of ten months.

[18]     It is not submitted that any other mitigating considerations apply.

Sentence

[19]     Stand please.

[20]     You are sentenced as follows:

(a)       possession  of  cannabis  for  supply:     two  years,  four  months’

imprisonment;

(b)      cultivating cannabis:  two years, four months’ imprisonment;

(c)       stealing electricity (over $1,000):  three months’ imprisonment; and

(d)      receiving stolen property:  three months’ imprisonment.

[21]     All those sentences are to be concurrent.  You will therefore serve a total of

two years, four months’ imprisonment.

[22]     I order forfeiture of the $3,420 found in the clock.    I make no order for reparation given your personal circumstances.

[23]     Stand down.

Stephen Kós J

Solicitors:

Crown Solicitor, New Plymouth