R v Crawford-Flett

[2012] NZHC 2273

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-044-004528 [2012] NZHC 2273

THE QUEEN

v

ROURKE PETER GREGORY CRAWFORD-FLETT

Hearing:         4 September 2012

Counsel:         Z Johnston for the Crown

M Mann for Mr Crawford-Flett

Judgment:      4 September 2012

SENTENCE OF WOODHOUSE J

Solicitors:

Ms Z Johnston, Meredith Connell, Office of the Crown Solicitor, Auckland

Mr M Mann, Public Defence Service, North Shore

R V CRAWFORD-FLETT HC AK CRI-2010-044-004528 [4 September 2012]

[1]      Mr Crawford-Flett, you may remain seated until I come to impose the formal sentence.   I need to explain the sentence I am going to impose because I need to explain it not just to you and to Mrs Crawford-Flett but to the community as a whole.

[2]      I do wish to state at the outset that I am going to impose a period of imprisonment.  This is not a case in my judgment where home detention could be imposed.  However, I do intend to impose what I regard as the absolute minimum, and that is 2 years imprisonment.  I will explain how I arrive at that sentence.

[3]      You appear for sentence having pleaded guilty to three charges.  These are possession of cannabis for supply – the maximum penalty is 8 years imprisonment. There is a second charge of cultivating cannabis, and that has a maximum penalty of

7 years imprisonment.  And there is the third offence of unlawful possession of the firearm, with a maximum penalty of 4 years imprisonment.

Facts

[4]      An outline of the facts is as follows.  On 21 April 2010 Police went to your property.  They went for reasons quite unrelated to investigation of the matters that you are now before the Court for.  They searched the property when they got there. They found approximately 200 cannabis plants growing outside – it was just under

200.  These were at various stages of maturity.  In a shed there were two rooms set up for drying cannabis, including drying racks and dehumidifiers.  There were 9.3 kilograms of dried cannabis head.   There was a pump action shotgun in your bedroom. You do not have a firearms license and never have had a firearms licence.

[5]      You told Police that the cannabis was for personal use and that you grow a

year’s supply at a time. You said the shotgun was for your protection.

[6]      There is evidence from a police officer with the necessary experience that each of the plants growing outside could have produced between 1 to 3 ounces of cannabis.  There is evidence that the street level price is $300 an ounce.  Taking the lower yield estimate for the plants that were growing, on that basis it could have

been sold in ounce lots for around $60,000.  On the same basis the 9.3 kilograms of dried cannabis could have been sold for around $98,000.  I do emphasise that those are estimates of sale and sale in particular weights on the street.  There is in fact no direct  evidence  of  your  involvement  in  selling  cannabis  at  all,  other  than  the inference that can be drawn from the quantity.   And, of course, you denied commercial sales.

Personal circumstances

[7]      I come to your personal circumstances.  You are now aged 53.  You have six previous convictions for cultivating or possessing cannabis.  Five of these are minor offences.  They occurred between 1980 and 1999 and I do not intend to take those into account.   However, in February 2002 you were sentenced to 5 years imprisonment for cultivating cannabis.

[8]      You have a number of serious health problems.  I will come back to this. You have been receiving accident compensation since 1997.

[9]      The pre-sentence reports indicate harmful patterns of alcohol and drug use. You say that you have been a long term user of cannabis and that you use it as a form of self-medication.  I accept that.

[10]     You continue to live on the rural property.  Your former wife occupies the house and you live in a converted barn.  Mrs Crawford-Flett, who is in Court today, remains supportive.   And that is a matter that I can take into account as far as possible.

[11]     A home detention report was sought and has been provided.  The proposed home detention address is the rural property.  It would not be possible to maintain effective electronic monitoring.   In addition, the first pre-sentence report records that, although you consented to electronic monitoring, you were concerned that it would impose undue restrictions on you, including in relation to management of your health problems.  You are looking puzzled as I say that Mr Crawford-Flett.  I simply record what is recorded there.  The critical matter in relation to this is that the

property is not technically feasible for home detention.  Mr Mann, on your behalf, has indicated that there is no – at this point – available alternative.

[12]     On this question of home detention it is also my judgment that it would be quite unsuitable to sentence you to home detention to the property where you were growing cannabis.

Sentence – starting point

[13]     A starting point is to be fixed in relation to the possession of cannabis for supply.  This is to be fixed in accordance with the guidelines set out in a Court of Appeal decision called Terewi.[1]   Mr Mann, on your behalf, and Ms Johnston, for the Crown, submit that this offence comes within category 2 of Terewi.   This has a starting point of between 2 to 4 years imprisonment.   I agree that it comes within category 2.  My task is to set the starting point within that range.

[1] R v Terewi [1999] 3 NZLR 62 (CA).

[14]     The Crown has submitted that the starting point, with an increase to take account of the cannabis cultivation and the firearms charge, should be around 4 years imprisonment.

[15]     Mr Mann submits that the starting point, as I understood it for the cannabis offences combined, should be in the vicinity of 2 years imprisonment.  This is on the basis, in essence, that you denied growing for commercial purposes, the inferences of commerciality are limited and the system was unsophisticated.

[16]     I accept that you will have grown for your own use, and I accept – as I have indicated – that you probably consume a lot of cannabis.  But the quantity is vastly more than you could have consumed in a year.   And you have pleaded guilty to possession of 9.3 kilograms for supply.  On the other hand – and I have touched on

this earlier – the operation was not a sophisticated one.

[17]     I have been referred to cases with some broad factual similarities.  These are

– and I will simply note the names: Collings,[2]  Edmonds,[3]  Knowsley,[4]  McDonald,[5]

Harris[6] and Weir.[7]

[2] R v Collings [2008] NZCA 30; CA571/07, 26 February 2008.

[3] R v Edmonds [2009] NZCA 152; CA576/08, 29 April 2009.

[4] R v Knowsley HC Auckland CRI-2010-057-1249, 14 September 2010, Lang J.

[5] McDonald v R [2011] NZCA 97; CA581/10, 25 March 2011.

[6] R v Harris [2009] NZCA 471; CA574/09, 13 October 2009.

[7] R v Weir HC Auckland CRI- 2011-057-1203, 18 October 2011, White J.

[18]     Having regard to the relevant provisions of the Sentencing Act, the Terewi decision, the cases I have just referred to, and the submissions I have received in relation to the facts of your offending, I consider that the starting point for the possession of 9.3 kilograms of cannabis for supply, with an uplift for cultivating cannabis, should be 3 years 3 months imprisonment.  Mr Crawford-Flett, that could be the starting point for the possession for supply by itself and there are numbers of other cases indicating that that would be within range.  I am giving you substantial benefit of the doubt as to the quantity for personal use and in respect of the lack of sophistication in the operation and the absence of any direct evidence of dealing.

[19]     This sentence needs to be increased to take account of the firearms offence because the sentences to be imposed will be concurrent – that is to say, the final sentence for the firearms offence is not to be added to the cannabis sentences.  There also  needs  to  be an  increase because of the previous  conviction  for  cultivating cannabis for which you received a sentence of 5 years imprisonment.  This is not to sentence you again, in part, for that offending.   The reason is that the previous conviction and the sentence makes this offending worse in itself.  Mr Mann submits that the increase for the previous offending should be 6 months, but there should be no increase for the firearm.  The firearm offence cannot be ignored.  I recognise that it was a firearm on a rural property.  But, of course, you have admitted the statement Police say you made that it was for your protection.

[20]     The increase I propose to impose for these matters is a total of 6 months, and effectively that is less than Mr Mann’s submission because I have taken into account the firearms offence.   That takes the sentence at this point to 3 years 9 months

imprisonment.

[21]     There are personal factors justifying a reduction.  Apart from the guilty pleas

– which I deal with at the very end – the most significant consideration is your health.  Section 8(h) of the Sentencing Act applies.  I am satisfied that the length of a sentence of imprisonment that would otherwise be appropriate in your case would be disproportionately severe because of a number of serious health problems and disabilities.

[22]     There is a body of evidence about your health and associated disabilities.  I

will note these in barest outline:

(a)      You have received multiple and severe orthopaedic injuries on four separate occasions, as I understand it, since the age of 15.

(b)You now suffer from chronic and severe pain and, amongst other things, methadone was properly prescribed to deal with that but you found it was unhelpful or caused other problems.

(c)       You are blind in one eye.

(d)      You have severe dermatitis. (e) You have hepatitis C.

(f)       You have coeliac disease.

(g)      Your mobility and range of bodily movements are restricted.

[23]     Mr Mann submitted that there should be a reduction of 6 months for these matters.   The Court of Appeal decision in Harris – one of the cases Mr Mann referred to – is authority for that submission in broad terms.

[24]     I am satisfied that there should be a reduction of around 6 months in respect of the health aspects.  I am going to increase that to 9 months at this point.  This is mainly to give you some hope and encouragement within the limits of the law.

[25]   That would produce an end sentence, Mr Crawford-Flett, of 3 years imprisonment.

[26]     You are entitled to a reduction for the guilty pleas.  The Crown submits 20% and Mr Mann has submitted 25%.  The guilty pleas were entered, to all intents and purposes, at an early stage. And you have acknowledged the offending from an early point. The reduction I will allow is 25% and that works out at 9 months.

[27]     This  would  produce  an  end  sentence  of  27  months.    I  indicated  at  the beginning of my sentencing remarks the sentence I am going to impose is 2 years imprisonment.  I am reducing it to an end sentence of 2 years imprisonment as an exercise of mercy and to do the best I can, Mr Crawford-Flett, to encourage you on your release from prison to sort these problems out.   I am not talking about your health, but your resort to cultivating cannabis.  I do hope you can make the most of that.

Home detention

[28]     For  the  reasons  I  have  already  indicated,  home  detention  is  neither  an available sentence, technically, nor is it one that I consider should be imposed in this case.

Formal sentence

[29]     You should now stand.

[30]     For the offence of possession of cannabis for supply you are sentenced to 2 years imprisonment.

[31]     For cultivating cannabis you are sentenced to imprisonment for 1 year 6 months.

[32]   For unlawful possession of the firearm you are sentenced to 1 years imprisonment.

[33]     All of those sentences are to be served together, so the total is 2 years.

[34]     I make an order for destruction of the firearm and the cannabis equipment. [35]       You should now stand down.

Woodhouse J