R v Constable

[2013] NZHC 1658

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2013-054-603 [2013] NZHC 1658

THE QUEEN

v

ALEX EDWARD CONSTABLE

Hearing:                   2 July 2013

Counsel:                  D J Flinn for Crown

R A Bedford for Defendant

Sentencing               2 July 2013

SENTENCING REMARKS OF MACKENZIE J

[1]      Alex Edward Constable you appear for sentence on one count of cultivation of cannabis.  You pleaded guilty in the District Court and were referred to this Court for sentence.

[2]      The facts are that on 3 March 2013 the police called to your home making enquiries on an unrelated matter.   Police detected a strong smell of cannabis and invoked search powers.  In the dining room and kitchen area they found 27 grams of dry cannabis head and knives for spotting.  In the three bedrooms of the house there was an extensive growing operation in progress.  A total of 70 cannabis plants was found  in  three  stages  of  growth.    There  were  29 cannabis  seedlings  or  clones,

30 plants in a vegetative growth state, and 11 mature flowering plants.  A substantial

amount of growing equipment was also found.

R v CONSTABLE  [2013] NZHC 1658 [2 July 2013]

[3]      Your personal circumstances are that you are 39 years of age.  At the time of your arrest you were living alone at the property.  You have a partner and a young son. Your partner supports you and has written a letter of support.

[4]      You  have  an  extensive  criminal  history  spanning  22 years.    You  have

61 convictions for a wide range of offences.  Eleven of those are drug related, arising from five separate appearances before the Court for drug offending.  While your rate of offending has dropped significantly in more recent years, there have been since

2001 three separate appearances for cannabis offences involving eight convictions. You have previously served sentences of imprisonment, home detention, supervision, community work, and fines. You are assessed as at a medium risk of reoffending and at medium risk of harm to others.

[5]      I must fix a starting point for your offending.  Both counsel submit that your offending falls within band 2 of R v Terewi.1   I agree with that assessment.  The size of this operation clearly indicates a considerable degree of commerciality.   The potential yield is estimated to be in the range between 140 ounces and 700 ounces. The estimated street values which have been put forward by police range between

$1,250 and $4,000 per pound, or $300 to $600 per ounce.  Your counsel submits that I should use the per pound values in assessing the likely value.  He submits there is no evidence of a sophisticated sales network, or any actual sales.   I consider it is reasonable to adopt that approach.   Taking the midpoint of the per pound price ranges, the street value would have been between about $20,000 to about $100,000. That is a very crude estimate of the scale of the operation and I do take into acct that there were no overt signs of commerciality apart from the growing operation itself. Starting points for band 2 are in the range of two to four years.   Counsel for the Crown submits that a starting point of two and a half years would be appropriate. Your counsel submits that a starting point of two years and three months would be appropriate.  On my assessment, the starting point which I fix is two and a half years.

[6]      I must adjust that starting point to reflect aggravating and mitigating personal factors.  A significant aggravating factor is your previous history.  Your two most

recent convictions for cultivation of cannabis have been in 2006 and 2010.  In 2006

1      R v Terewi [1999] 3 NZLR 62; (1999) 16 CRNZ 429.

you received a sentence of community work and for the 2010 offending you received a sentence of three months home detention.  Previously in 2001 you were sentenced to one and a half years imprisonment.   I take into account that, as your counsel submits, your most serious offending is now quite some time ago.  Overall, to reflect the totality of your previous offending, I consider that an uplift of three months is appropriate.

[7]      The only factor requiring a deduction is your guilty plea.  This was entered promptly at the first opportunity and it should attract a full 25 per cent discount. That amounts to eight months.

[8]      That leaves an end sentence of two years and one month.  That is close to the range where home detention would be a possibility but it is just above that range.  I should say that had I reached the conclusion that the sentence could have been two years or less I would not, in light of your previous history, have been prepared to consider a sentence of home detention.

[9]      You are accordingly sentenced to imprisonment for a term of two years and one month.  There will be an order for the destruction of all the drugs, drug utensils and growing equipment seized.

“A D MacKenzie J”

Solicitors:         Crown Solicitor’s office, Palmerston North

Richard Bedford, Barrister and Solicitor, Palmerston North