R v Coombes
[2013] NZHC 70
•5 February 2013
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI 2012-020-3125 [2013] NZHC 70
QUEEN
v
GARETH NIGEL COOMBES
Hearing: 5 February 2013
Counsel: N M Graham for Crown
M Phelps for Prisoner
Sentence: 5 February 2013
REVISED SENTENCING NOTES OF THE HON JUSTICE KÓS
Introduction
[1] Mr Coombes, you pleaded guilty on 27 November 2012, in the District Court, to one charge of cultivation of cannabis,1 one of possession of cannabis for the purpose of sale,2 and one of sale of cannabis.3
[2] The District Court declined jurisdiction to sentence you. It therefore falls to me to do so.
1 Misuse of Drugs Act 1975, s 9(1).
2 Misuse of Drugs Act 1975, s 6(1)(f).
3 Misuse of Drugs Act 1975, s 6(1)(e).
R v COOMBES HC NAP CRI 2012-020-3125 [5 February 2013]
Details of offending
[3] I will summarise, briefly, your offending.
[4] On Thursday 1 November 2012 the Police executed a search warrant at your home in Flaxmere. The garage on the property contained 250 individually potted cannabis plants in two insulated tents and a room lined with reflective paper. Each was equipped with a system of lights with timing switches, ventilation fans and filters. Another brand new tent had been set up with the intention of expanding the operation.
[5] The specific amounts of cannabis found were as follows: (a) 64 cannabis plants – approximately 1m in height; (b) 30 cannabis plants – 30cm to 1m in height;
(c) 25 cannabis plants – 40cm to 50cm in height; (d) 51 cannabis plants – 20cm to 30cm in height; (e) 80 cannabis plants – seedlings;
(f) 30 grams of cannabis head which was found on a drying board in the garage.
[6] You admit to selling up to 25 ounces of cannabis since you began cultivation in January 2012, at $300 per ounce. Much of this money may have been reinvested in your start-up growing operation. Your explanation to the police, when apprehended, was that you were trying to make some money to fund home improvements. Your counsel characterised all this as a gross error of judgment.
[7] Counsel for the Crown put it in these terms “a conscious and deliberate
decision to grow cannabis which you knew to be illegal to sell to others, to put it into
the community to make money”. I agree with the Crown’s characterisation of your
conduct.
[8] A Police expert estimates your operation could have produced an annual turnover of around $80,000.
[9] Police located $4,020 in cash in your bedroom. You admit that sum was derived from the sale of cannabis.
Personal circumstances, Pre-sentence Report and prior offending
[10] I turn now to your personal circumstances. You are 29 years of age. Together with your partner of four years, you own a house in Flaxmere. You live there with your six month old child. You are a qualified butcher. You now work as an operations manager at an insulation business. You have 12 staff members working to you.
[11] You have support from your employer. He states that you are a “valuable and important part” of his business. It is clear that in your present occupation, and in your former occupation as a butcher, you have been a real achiever. You have been described by a former work colleague as “honest, reliable, self-motivated, polite, well presented and energetic”. You also have the support of your partner and mother. They report your devotion to them, and to your grandmother. She you help twice weekly with lawns and property maintenance, following the death of your grandfather three years ago.
[12] You have no previous convictions. Your pre-sentence report assesses your risk of reoffending as low. You state that you do not use drugs and you appear not to have any addiction issues. You have been assessed as likely to comply with any community-based sentence imposed. The report also states that you present as “remorseful”, stating that you had no idea that your actions were so serious or the impact that it would have had on you and your family.
Purposes and principles of sentencing
[13] I am required to keep be mindful of the purposes and principles of sentencing according to the Sentencing Act 2002. Section 7 requires me to have regard to the need to hold you accountable for the harm you have done to victims of your offending, which includes the community, and the need to promote a sense of responsibility for, and acknowledgement of that harm. I need to denounce your conduct and I do so in open Court today, and I need to deter you and others like you from committing the same or similar offense in the future. I am also required to take into account the need to assist in your rehabilitation and reintegration into society in due course.
[14] In terms of s 8 principles, I must take into account the gravity of your offending, including your degree of culpability. I must have regard to the seriousness of the types of offence committed by comparison to other types of offending, as indicated by the maximum penalty prescribed. I must also consider the general desirability of consistency of sentencing. And then I need to impose the least restrictive outcome that is appropriate to your circumstances. That is what the law requires.
Starting point
[15] In determining a starting point I draw no distinction between the sale, possession for sale and cultivation offences you have committed. The Court of Appeal approved that approach in R v Gray. That Court recognised that cultivation and possession for supply of cannabis are frequently “interrelated”4 offences, as is the actual sale of the cannabis product.
[16] The guideline judgment for cannabis offending is R v Terewi.5 Both counsel agree that your offending falls within category two of Terewi. That encompasses small-scale cultivation of cannabis plants for a commercial purpose, and it generally
warrants a starting point of between two and four years’ imprisonment. You admit to
4 R v Gray [2008] NZCA 224 at [12].
5 R v Terewi [1999] 3 NZLR 62 (CA).
having sold up to 25 ounces of the cannabis you cultivated which clearly demonstrates the intended and realisable commerciality of your venture. In R v Andrews6 it was held that any commercial element, no matter how small, warrants a minimum starting point of two years except in truly exceptional circumstances.
Submissions
[17] Counsel for the Crown, Ms Graham, submits that a starting point of three and a half years’ imprisonment is appropriate to reflect the sophisticated nature of your operation, the quantity of cannabis grown and the large potential returns. She relies on five precedent cases: White v R;7 R v Harris;8 R v Scott;9 R v Yates;10 and R v Hertnon.11
[18] Your counsel, Mr Phelps, submits that a starting point of two to two and half years would be appropriate having regard to the fact that the operation lacked some of the hallmarks of sophistication such as irrigation, hydroponics, thermostats and nutrients. Counsel notes two cases in support this starting point: R v Salisbury12 and R v Didham.13
[19] Having considered the authorities cited by both counsel, I consider a starting point of three years’ imprisonment is appropriate, having regard to the quantities of cannabis you admit to selling, projected potential annual turnover, the moderate sophistication of the operation and the number of plants found. The number of plants located and turnover projection are close to those in R v White, while the volume of dried cannabis you admit selling (around 700 grams) is less than the 1.6kg of dried cannabis awaiting sale at Mr White’s house and closer to the amounts found
in Didham.
6 R v Andrews [2000] 2 NZLR 205 (CA) at [9].
7 White v R [2010] NZCA 565.
8 R v Harris [2009] NZCA 471.
9 R v Scott CA170/05, 09/11/05.
10 R v Yates HC Whangarei, CRI-2009-029-1220, 22 April 2010.
11 R v Hertnon HC Palmerston North, CRI-2007-031-536, 18 December 2009.
12 R v Salisbury HC Napier, CRI-2010-020-2856, 13 December 2010.
13 R v Didham HC Dunedin, CRI-2010-012-5871, 3 August 2011.
[20] Therefore the starting point for sentencing purposes, for the totality of your offending, will be three years’ imprisonment.
Personal aggravating and mitigating features
[21] Having set out the appropriate starting point, I next consider whether that sentence should be altered having regard to aggravating and mitigating factors personal to you.
Aggravating features
[22] No personal aggravating features have been identified. There is therefore no basis to increase the starting point.
Mitigating features
[23] There are however, three relevant mitigating factors.
[24] First, your lack of previous convictions. Counsel for the Crown submit that any discount for your family circumstances and lack of previous convictions should be diminished because of the position taken by the Supreme Court in Jarden v R.14
While consideration of your personal circumstances is secondary in importance to the principles of denunciation and deterrence when it comes to sentencing for commercial drug dealing, Jarden explicitly recognises that personal circumstances may yet be relevant on compassionate grounds.15 In any case, it would be wrong in my view not to acknowledge and allow for your otherwise unblemished record. Those factors warrants a 10 per cent discount on the starting point.
[25] Secondly, your expressed remorse. I am wary of giving you a discount for remorse when you have not taken any concrete actions to express it. As the Supreme Court recognised in R v Hessell,16 genuine remorse is less commonly expressed by
defendants than self-pity. There is some of that here, I think. But I am satisfied that
14 Jarden v R [2008] 3 NZLR 612 (SC).
15 At [14]
16 R v Hessell [2010] NZSC 135 at [64].
your pre-sentence report, and the letter from your partner demonstrate a degree of remorse justifying 5 per cent discount on the starting point.
[26] It follows that a discount of 15 per cent on the three year starting point will be given, before considering the effect of your early guilty pleas. The result, before considering that issue is therefore a sentence of two years and six months’ imprisonment.
[27] Thirdly, your guilty plea. Your house was searched on the 1 November 2012. You pleaded guilty at your second appearance date on 27 November 2012. Counsel for the Crown submits that the case against you was strong, the plea was made upon second appearance and only saved police witnesses from giving evidence at trial. Your counsel takes the point that part of the strength of the case against you, particularly on the secondary charges, comes from your cooperation and frank admissions. In all the circumstances I do consider the full 25 per cent discount to be appropriate.
[28] The end sentence therefore is 22 months’ imprisonment.
Community or Home Detention?
[29] Because your sentence is a short-term length of imprisonment, that is 24 months or less, you are eligible for a sentence of home detention.17 A report prepared to assess the suitability of your address in Flaxmere for home detention notes that it is suitable. I therefore have a discretion to impose home detention at that address. That is the address of course at which you committed the offences. The Courts are generally reluctant to sentence an offender to home detention where the address at which they will serve their sentence is the same as the one in which
they offended.18 But that is not a rule without exception.19
17 Section 15A Sentencing Act 2002.
18 R v Hakiwai CA 19/03, 30 May 2003.
19 R v Husband & Heath (2000) 18 CRNZ 229 (CA).
[30] I consider that the purposes of sentencing, which include denunciation and deterrence, can be met by a sentence of home detention.20 The real question in this case is whether I should go further and impose an arguably less restrictive sentence of Community Detention and Community Work as recommended in your pre- sentence report.
[31] Section 69C(1) of the Sentencing Act 2002 provides:
Guidance on use of sentence of community detention
(1) A court may impose a sentence of community detention if the court is satisfied—
(a) that a sentence of community detention—
(i) would reduce the likelihood of further offending by restricting the offender's movements during specified periods, including, but not limited to, offending of a particular type or at a particular time; or
(ii) would achieve 1 or more of the purposes set out in section
7(1)(a), (b), (e), or (f); and
(b) that an electronically monitored curfew is appropriate, taking into account the nature and the seriousness of the offence and the circumstances and the background of the offender.
[32] The relevant purposes referred to in s69C(1A)(ii) are the need to hold you accountable for harm you have done to the community, to promote a sense of responsibility for and an acknowledgment of that harm, to denounce your criminal conduct and to deter you and others from committing the same or similar offences.
[33] I note that community detention has been imposed in other cases involving serious offending, for instance blackmail,21 supply of methamphetamine and conspiracy to supply ecstasy,22 and attempted murder (an attempted mercy killing
case).23
20 R v Iosefa [2008] NZCA 453 at [41].
21 R v DJA HC Wellington CRI 2007-032-477, 3 October 2008.
22 R v Messenger, HC Auckland CRI 2006-044-5462, 18 July 2008; R v Radick HC Hamilton CRI
2007-075-295, 6 May 2008.
23 R v Crutchley HC Hamilton CRI 2007-069-83, 9 July 2008.
[34] Secondly, I am satisfied that the proposed curfew address is in an area in which a community detention scheme is currently being operated.
[35] Thirdly, the conditions applicable to community detention in this case would be as follows:
(a) You are to reside at 19 Stonehaven Street, Flaxmere and not to move from that address without the prior written approval of your probation officer.
(b)You will be subject to curfew at that address from 2000 hours to 0600 hours daily, as from the commencement of sentencing.
(c) You are not to possess or consume alcohol or illicit drugs at that address.
(d)You are to be subject to electronic monitoring, to ensure curfew compliance, on such conditions as are directed by your probation officer.
[36] I am satisfied from your pre-sentence report that you have been made aware of and understand the conditions that will apply during the sentence and that you agree to comply with those conditions. Is that the case? I note that you say you do.
[37] Fourthly, I am satisfied, also, that the other occupants of the proposed curfew address, relevantly being your partner understand the conditions of the curfew will apply to you, consent to your remaining at the address in accordance with that curfew, and that she has been informed that she may withdraw her consent, at any time, to your serving a sentence at the curfew address.
[38] It follows, therefore, that the essential prerequisites for the imposition of a community detention sentence apply here. The question then becomes whether I should now impose that sentence, or instead impose a sentence of home detention.
[39] I am satisfied in this case it is appropriate to impose a sentence of community detention and a period of community work. I agree, respectfully, with the observation of Harrison J in R v Radick24 that there is not a great deal of difference between imposing a sentence of home detention, and one of community detention together with community work. Both sentences are significantly restrictive of freedom. But the difference is that one is materially preferable in terms of rehabilitation.
[40] A sentence of community detention where possible, is in my view preferable in the particular circumstances of this case.
(a) a first offender;
(b) a person with a strong established work record and
(c) a person with strong community support.
In these three circumstances a stronger case for community detention can be made. It is preferable, if at all possible, that a person in that situation be able to continue in employment. That is a far better means to your ultimate rehabilitation than either sentencing you, for the first time in your life, to prison – or else making you fritter away your time at home without performing gainful employment which will in part assist you to repay directly your debt to society. I say that noting Ms Graham’s submission that in certain circumstances a home detainee may be released for employment. But I am cutting to the chase here and imposing instead a sentence which recognises the importance of your continuing your strong work record because that will achieve, as I must look for, greater rehabilitation of you as you transition back fully into society.
[41] By convicting you, denouncing you in the Court today as a criminal – and let us not mince words about that, Mr Coombes; that is what you are, a criminal - imposing a sentence of community detention and a substantial period of community
work, that will in my view sufficiently meet the needs of ss 7 and 69C(1) of the Act.
24 R v Radick HC Hamilton CRI 2007-075-295, 6 May 2008, at [15].
In this case it is denunciation, and the deterrence of others that are most important. In my judgment and that of your probation officer, you are most unlikely to offend again in this manner.
Sentence
[42] Stand please.
[43] Mr Coombes, you are sentenced to six months’ community detention. That is the maximum permissible term.
[44] You are:
(a) To travel immediately from Napier High Court to 19 Stonehaven Street, Flaxmere and there await the arrival of a probation officer and a representative of the monitoring company.
(b)To reside at 19 Stonehaven Street, Flaxmere for the duration of your sentence of community detention.
(c) You will be subject to curfew at that address from 2000 hours to 0600 hours daily, as from the commencement of sentencing.
(d)You are not to possess or consume alcohol or illicit drugs at that address.
(e) You are to be subject to electronic monitoring, to ensure curfew compliance, on such conditions as are directed by your probation officer.
[45] You are also sentenced to complete 300 hours community work. That is to occur under the control and supervision of the Flaxmere office of the Department of Corrections. Had it been possible to sentence you to twelve months community detention, a lesser term of 200 hours would have been imposed.
[46] An order is made for the forfeiture of the $4,020 cash found at your address.
[47] This is a merciful sentence Mr Coombes. It is not aberrant, in terms of prior sentencing principles or authorities, but it does involve the Court placing considerable trust in you. Given the choice between home detention on the one hand and community detention on the other, I am satisfied that the interests of rehabilitation of a first offender with your work record and community support are substantially improved by taking the community detention course. Those outweigh any perceived diminution in denunciation. The trust resting in you now is one shared with your family, your employer and your friends. Do not let us down again. A sentence like this will only happen once in your life.
[48] Stand down.
Stephen Kós J
Solicitors:
Solicitor-General, New Zealand
Tony Snell Barrister, Hastings
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