R v Connolly
[2012] NZHC 1950
•6 August 2012
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI 2012-021-706 [2012] NZHC 1950
THE QUEEN
v
JAMES FRANCIS CONNOLLY
Hearing: 6 August 2012
Counsel: S A Law for Crown
K M Marriner for Prisoner
Sentence: 6 August 2012
SENTENCING NOTES OF DOBSON J
[1] You are appearing for sentencing this morning on three charges to which you have pleaded guilty. You were charged with possessing cannabis plant material for supply, cultivating cannabis and possessing equipment for the cultivation of cannabis. The maximum penalties for those offences are eight, seven and five years’ imprisonment respectively.
[2] Your case began in the District Court at Hawera. On sentencing for these convictions, the District Court could not sentence you to more than two years’ imprisonment. The District Court Judge accepted a submission on behalf of the Police that there ought to be consideration given to a more severe penalty than that, and accordingly he declined to deal with the matter, and the result is that it has come
before me today in this Court.
R v CONNOLLY HC NWP CRI 2012-021-706 [6 August 2012]
[3] Your present offending was revealed when, as a consequence of other, unrelated, offending, the Police conducted a search of the house you occupy early on
1 April this year. They discovered a relatively sophisticated cannabis growing operation in both a garden shed erected within the garage at the property, and a tent also erected within the garage. Both growing operations were assisted by lights, and in one case a fan. There were 26 cannabis seedlings in the garden shed, and
45 plants of up to 50 centimetres tall in the tent.
[4] The Police also located a substantial amount of dried cannabis, some of it divided into smaller quantities and stored in various places in the house. But there was a grand total of about 4.5 kilos of dried material and some 205 grams of cannabis head material.
[5] Your explanation for the plants growing at the property was that it was a small amount for your personal use. As to the large volume of some 4.5 kilos of dried material, you told the Police you had stolen it from an outdoor plot some
12 months before the Police search, and did not destroy it, knowing that it had some value. As to the use of the cannabis, you deny that you have been actively selling it to anyone, but acknowledged that you would occasionally share cannabis with your friends and not reject offers they made to pay for the cannabis they used.
[6] My approach to sentencing has to have regard to the purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act 2002. Of the purposes in s 7, in this case it is relevant to hold you accountable for the harm done to the community by this offending, to promote in you a sense of responsibility for, and an acknowledgement of, the harm that such offending causes, to denounce the conduct involved in this offending and to deter you and others from committing the same or similar types of offence.
[7] In terms of the principles of sentencing in s 8, I am mindful of the need to take into account the relative gravity of this offending and the degree of your culpability for it, the seriousness of this offending in comparison with other types of offences, and the relativity to the maximum penalties that are prescribed. I have to recognise the desirability of a measure of consistency between the sentencing levels
for comparable offending, and ultimately I must impose the least restrictive outcome that is appropriate in the circumstances with a view to your rehabilitation.
[8] You will have heard counsel refer to the tariff guidelines from R v Terewi, 1 which was a 1999 Court of Appeal decision that prescribed bands of offending that involve cultivation and dealing in cannabis. It is accepted that in your case you come within category two from that case, which covers small-scale cultivation for a commercial purpose. There is generally a starting point of between two and four years’ imprisonment for this category, but infrequent or limited sales could point to a lower starting point. In your case, there is no evidence of sales of cannabis in the usual way. The law deems you to have had possession of this quantity for the purposes of supply because you had many, many times more than the amount of cannabis at which the law applies that presumption. In circumstances like yours, the amount of cannabis is itself one indicator of the seriousness of your offending.
[9] I have had regard to other cases where the offending was similar, to identify a starting point for your sentence. The oldest of the cases referred to me was R v Broughton which is the one I was discussing with Ms Law morning.2 It is from
2005. That is a Court of Appeal decision that involved growing involving 50 plants,
24 seedlings and some 250 grams of dried leaf. The Police valued the cannabis taken in that case at $130,000. There were circumstances that inferred a relatively high degree of commerciality and the Court of Appeal accepted four years as a starting point as being within the available range. As you have heard me say to Ms Law, I treat that as a bit of an out-lier, but it is a relevant point of reference certainly at the top of this band.
[10] Then there is R v Rakatau, where the Police found a total of 4.8 kilograms of
cannabis at the offender’s property.3 So the amount quite similar to the
4.5 kilograms in your case. In Rakatau, the Police also found a set of scales and
72 plastic snaplock bags, which supported the inference of commercial dealing. The
Court accepted some of the cannabis would have been for the offender’s own use but
that a significant portion would remain for supply. The sentencing judge there
1 R v Terewi [1999] 3 NZLR 62 (CA).
2 R v Broughton CA18/05, 9 June 2005.
3 R v Rakatau [2007] NZCA 21.
adopted two years and 10 months as the starting point, and the Court of Appeal upheld that, although it did observe that it was at the top of the available range.
[11] Then in R v Gray, which is another case counsel have referred me to, the offender had possession of 3.5 kilograms of dried cannabis which had been hidden in various forms throughout his house.4 There, the Court of Appeal accepted a starting point of two years and six months’ imprisonment as being well within the range that was treated as a Terewi band two offence.
[12] In your case, Mr Connolly, nothing was found at the property that would indicate you were, for instance, packaging the cannabis for sale or weighing it. You have denied making regular sales and instead suggest that the only money received is from friends who may volunteer to pay for cannabis you supply them. Otherwise, you claim the cannabis is for your own use.
[13] Given the amount of cannabis discovered, I am highly sceptical that it was all intended for your own use. Beyond relying on the presumption in the Misuse of Drugs Act 1975 that you had cannabis for the purposes of supply, it is inherently unlikely that there was not some extent of supply being undertaken.
[14] The growing operation was relatively sophisticated, but you deny that it had been going on for long because an earlier visit by the Police to the premises some four months earlier would, on your analysis, have revealed the apparatus in the garage, but none was discovered.
[15] In your circumstances, the Crown has urged a starting point initially of three and a half years and then, in fairness to Ms Law this morning, three years as the starting point. On your behalf, Mrs Marriner says two and a half years is enough as a starting point.
[16] In your case, the large amount of dried cannabis material, together with the sophistication of the growing operation, is somewhat offset by the absence of any evidence of commercial selling, and that the Police cannot establish it had been
on-going for any length of time, in the face of your denial of that. You had materially more dried material than in R v Gray which I have referred to, and slightly less than in Rakatau, and there is not the evidence of commerciality in your case that there was in Rakatau.
[17] So, on balance, I set a starting point for this offending of two years and eight months. The nature of the offences and the connection in time makes it appropriate to sentence you on all of the three convictions on a concurrent basis – that is, one sentence served at the same time - and that starting point is sufficient to reflect the totality of that offending.
[18] As to aggravating or mitigating factors in relation to you as the offender, I am troubled by the extent of your previous convictions, and in particular those that are drug-related. You were sentenced to two years’ imprisonment for cultivating cannabis in December 2000, and then in April 2005 you were sentenced to two months’ imprisonment on a further conviction for cultivating cannabis. There is therefore something of a pattern and this sentencing ought to send a strong signal that it is a pattern you should certainly not repeat again.
[19] The Crown also urges that there was an element of pre-meditation in the planning, apparent from the design and equipment used in growing the cannabis, and the combination of your offending, together with the volume of cannabis plant seized. As to the volume, I have taken full account of that in grading the relative seriousness, and it would be double-counting to treat that as an aggravating factor. Overall, I consider that these aggravating factors justify an additional five months, making the total sentence, before any mitigating factors, one of three years and one month or 37 months.
[20] As to the mitigating factors that might reduce that sentence, the important one is your early guilty pleas. Counsel are agreed that that entitles you to the full extent of a 25 per cent discount in accordance with the Supreme Court decision in Hessell v R.5
[21] As to your personal circumstances, the Probation Officer’s pre-sentence report describes you as a single man without family or other support in the community in which you have been living. You are dependent on an unemployment benefit which you have subsidised by selling firewood and possum fur. The Corrections Department screening assessment for alcohol and drugs suggests a harmful pattern of drug use, presumably reflecting your own acknowledgement of the extent of your consumption of cannabis. You are assessed as having medium to high risk of re-offending, disclosing to the Probation Officer a liking, and apparently an entrenched habit, of smoking cannabis. You have a peer group who shares that view, which is also a worry. There is nothing in these personal circumstances that could justify any further reduction.
[22] I have read the relatively lengthy letter you have asked me to that was produced this morning. Your letter suggests that you do still have connections with your family, although you are concerned that this lot of offending might have alienated them. I will send to them by this sentencing that I hope they will not give up on you. That letter records remorse, and that you want to address your addiction, and those are matters I urge you to take forward.
[23] The end sentence I settle on is two years and four months’ imprisonment.
[24] Your counsel has not asked the Court to consider home detention, and I
consider that was realistic.
[25] Now, the pre-sentence report recommends special release conditions, and given the thoughtful assessment of your needs, I accept those as appropriate and I will impose those conditions.6 I will read them out but you may have gone through them yourself in the pre-sentence report. They are:
(a) you are to attend an assessment for a departmental rehabilitative programme and, if found suitable, to attend and complete the programme to the satisfaction of the Probation Officer and the programme provider, subject to programme availability;
(b)second, you are to attend a maintenance programme on the completion of a departmental programme to the satisfaction of, and as directed by, the Probation Officer;
(c) thirdly, you are to attend an alcohol and other drug assessment and attend and complete any treatment or counselling, including residential treatment programmes, as recommended by the assessment to the satisfaction of the Probation Officer and treatment provider.
[26] The Crown has also sought an order for destruction of the cannabis confiscated and the equipment seized by the Police under s 32 of the Misuse of Drugs Act, and I make that order.
[27] You may stand down.
Dobson J Postscript:
In light of the length of final sentence, the Court does not have jurisdiction to impose such conditions, and they therefore cannot form a lawful component of my sentencing. It is unnecessary to recall my sentencing. I simply confirm that those conditions are not, in fact, imposed. It will be for others to consider and impose conditions that they consider appropriate.
Solicitors:
Crown Solicitor, New Plymouth
Parker & Marriner, Hawera for prisoner
3