R v Delamore HC Auckland CRI 2010-004-1934

[2010] NZHC 1772

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-004-1934

THE QUEEN

v

NICHOLAS EDWARD DELAMORE

Charge:          Cultivation of cannabis; Possession of cannabis for supply

Plea:               Guilty

Appearances: B R Northwood for Crown

P J B Winter for Prisoner

Sentenced:     5 October 2010

12 months home detention (with special conditions) and 300 hours community work on each count

SENTENCING NOTES OF BREWER J

SOLICITORS

Meredith Connell (Auckland) for Crown

Peter Winter (Auckland) for Prisoner

R V DELAMORE HC AK CRI-2010-004-1934  5 October 2010

[1]      Mr Delamore, you have pleaded guilty to two offences under the Misuse of Drugs Act 1975, namely cultivation of a Class C controlled drug cannabis, the maximum  penalty for  which  is  seven  years' imprisonment,  and  possession  of  a Class C controlled drug cannabis for supply, the maximum penalty for which is eight years' imprisonment.

[2]      The District Court declined jurisdiction following the entry of guilty pleas because of the extent of your drug offending and so you are now for sentence in this Court.

Facts

[3]      In October 2009 police searched your home on Waiheke Island and located in the  garage around  206  cannabis  plants  of  various  varieties  in  various  stages  of growth.   The garage had been subdivided into four separate areas for propagating and growing cannabis.  As I have said, I accept that there was at least a moderate degree of sophistication in the cannabis growing setup.

[4]      One of the areas in the garage, I understand, was serviced by extraction fans, circulation fans and a 400 watt lamp set on a timer system for the purpose of propagating  cuttings.    98  plants  were  contained  within  this  space  and  were  of different varieties, each one of them labelled.

[5]      There were three other areas containing full grown cannabis plants, or rather plants which were approximately three or four weeks away from harvesting.  These plants totalled 108 in number.  Each area had its own carbon filtering and extraction unit as well as fresh air input and a timing-controlled high-powered lighting unit.  A manual water unit was set up in one of the rooms with a pump from a large outdoor concrete water tank, with a spray head and enough garden hose to reach the entire crop.  I record those details, Mr Delamore, simply to put on the record that this was not an amateur attempt to grow cannabis but an operation of somebody who knew what he was doing and how to achieve the outcome.

[6]      2.4 kilograms of manicured cannabis was located at your address having been packaged and stored in resealable plastic bags.  The quantities in these bags weighed each between 28 grams and 150 grams.   Other resealable plastic bags contained

401 grams.

[7]      Other cannabis was found hanging inside the garage to dry.  The weight of this cannabis was over 4.75 kilos and would have been manicured and packaged once it was fully dry.  The police estimated that this cannabis came from about 40 recently harvested cannabis plants.

[8]      Cannabis seeds were found in different locations in the garage and inside your house in the kitchen drawer was a packet containing 11 cannabis seeds.

[9]      The 2.4 kilograms of manicured cannabis alone, according to the police, had a street value of between $25,000 to $34,000.  Now, Mr Delamore, I am very well aware  from  my  own  experience  of  the  widely  differing  estimates  of  value  of cannabis and almost invariably the submissions on behalf of somebody in  your situation  is  that  the value of  the cannabis  found was  very much  less  than  that estimated by the police, and so it is I know in your case.  But, obviously, the value of all of the cannabis found by the police was considerable.  The Crown submits that the 206 plants had a potential street value of between $82,400 and $247,200.  The

4.75 kilograms of drying cannabis was estimated to be worth between $21,000 and

$28,000.   In all, the police estimated that the cannabis found was worth between

$128,400 and $309,200.

[10]     Your explanation to the police for your offending was that you grew the cannabis for your own use but that you also on occasions gave cannabis to your friends.  However, in the pre-sentence report it is recorded that you accepted that you sold cannabis to your close friends, although it was more about growing it for your own use.  I understand that your lawyer accepts that.

[11]     You are 57 years old.  For the past 43 years you have been living on Waiheke Island.  At the time of the police search you had living with you your 19 year old daughter and her 16 month old baby.  Your granddaughter suffers from a debilitating disease known as Crieduchat Syndrome and requires intensive 24-hour help with all day-to-day tasks.  You assisted with those.  You have worked at a variety of jobs in your lifetime and you currently have a computer/café business on Waiheke Island which the pre-sentence report says generates a meagre income.

[12]     You have had a harmful pattern of drug and alcohol use and you accept that you are addicted to cannabis.   I accept that as a result of your arrest you were motivated to try to change.  You have attended and completed the Salvation Army eight week residential alcohol and drug rehabilitation programme  and  you have apparently gained awareness and insight into the circumstances in your life history which have contributed to your misuse of drugs.  Your counsel advises me and the pre-sentence materials I have read confirm that you are committed to abstinence and that you see that as necessary for your full rehabilitation.  I have noted the medical reports provided by your lawyer which show that you have been testing negative for drug use in recent months.

[13]     The pre-sentence report update which was prepared on 23 September 2010 assesses your motivation to change your behaviour as high and your current risk of re-offending has been given a downgraded assessment.  You are considered to be a suitable candidate for home detention.

[14]     You have a number of references in your support and I acknowledge that those giving you the references generally regard you as kind, generous and honourable.

[15]     You have a number of previous convictions but, as you have heard, I accept that, given the length of time that has passed, they are irrelevant for the purposes of today's sentencing and I disregard them, save that they prevent you from claiming credit for good character.

[16]     The Sentencing Act requires that in sentencing you I bear in mind a number of purposes and principles.  In your case I have regard to the following purposes:

•The need to hold you accountable for the harm done to the community by the presence of and the availability of illegal drugs;

•The    need   to    promote    in    you    a    sense    of   responsibility    for    and acknowledgement of that harm;

•    The need to denounce your conduct;

•The need to deter you and others like you from committing the same or similar offences;

•Finally,  I  have  regard  to  the  need  to  assist  in  your  rehabilitation  and particularly to impose the least restrictive sentence appropriate.

[17]     I must also take into account the principles of sentencing including:

•The need to take into account the gravity of your offending, including the degree of culpability;

•    The seriousness of this type of offending in comparison with other types;

•The need to consider the general desirability of consistency with appropriate sentencing levels;

•The  particular  circumstances  of  you,  the  offender,  that  would  mean  an ordinarily appropriate sentence would be disproportionately severe; and

•    The need to consider the least restrictive outcome, as I have said.

[18]     The Crown submits that the cultivation charge and the possession for supply charge are interchangeable and should be treated equally as lead offences.  I agree with that.   Emphasis was placed in the Crown's submissions on the premeditation associated with  your offending,  its degree of sophistication and the commercial element  of  it.    The  Crown  suggests  that  your  offending  falls  squarely  within

category 3 of R v Terewi1 which is the leading authority for sentencing in this area.

The Crown suggests a start point of five to six years' imprisonment is appropriate.

[19]     Mr Winter submits that your offending falls more properly within category 2 of  Terewi  and  submits  that  a  start  point  of  two-and-a-half  to  three  years' imprisonment is appropriate.

[20]     Both the Crown and Mr Winter have referred me to quite a large number of cases which show quite a diversity of sentences due, no doubt, to the diversity of factual situations even within broadly similar cases.

[21]     In your case, Mr Delamore, I take a start point of three-and-a-half years' imprisonment taking into account both the cultivation charge and the supply charge. If the commercial element were stronger then I would have adopted the Crown's starting point.

[22]     There are no other personal aggravating factors.

Mitigation

[23]     I now turn to look at the mitigating factors.

[24]     Personal circumstances of an offender, as is said frequently, do not count for much in cases such as this.  However, your attempts at rehabilitation are significant

and, in my view, worth supporting - particularly given your long history of addiction to cannabis.

[25]     In my view, given your age, the introduction into your life of a granddaughter with special needs and the efforts you are making to overcome your addiction, I can give greater effect to the sentencing purpose of rehabilitation than would generally be the case.  I will allow a reduction of six months for this factor.

[26]     As to other mitigating factors, given your previous history I cannot take good character into account.  I can, however, take into account the major mitigating factor which was your early guilty plea.  That early guilty plea is a tangible recognition of your acceptance of responsibility and remorse.   Technically it did not come at the earliest possible stage but it did come at a stage which was well prior to committal for trial, and so I am going to be lenient and give you the discount of one third for that.

Sentence

[27]     On each of the charges of cultivating cannabis and possession of cannabis for supply, I have arrived at two years' imprisonment.

[28]     I have jurisdiction to sentence you to home detention because I have reached the view that in your case a determinate sentence of not more than two years is appropriate.

[29]     I can only impose a sentence of home detention if I am satisfied that the purpose or purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences.

[30]     My discretion as to whether or not to sentence you to home detention falls to be exercised in accordance with the principles set out in ss 7, 8 and 9 Sentencing Act

2002.  I have been referred to the decision of the Court of Appeal in R v Hill2 and I

have regard to it.  But, as I have said, I believe that in your case I can give greater effect to the sentencing purpose of rehabilitation than would generally be the case. Where an offender is motivated to change, and where there is a realistic prospect that he will be able to change, then there are obvious community benefits to a sentence of home detention.

[31]     The writer of the pre-sentence report assesses your motivation to change your behaviour as high and expresses the hope that given the progress you have already achieved - along with your ongoing involvement in abstinence support groups - you are well on the way to a full recovery.  I hope so.

[32]     Accordingly, on each charge, I sentence you to 12 months' home detention with the following special conditions:

(1)To travel directly from this Court to the address of Unit 9/6 Sarsfield Street, Herne Bay, Auckland and there await the arrival of the probation officer and the monitoring company.

(2)To  reside  at  the  address of  Unit  9/6  Sarsfield  Street,  Herne  Bay, Auckland for the duration of your home detention sentence and not to leave that address without prior approval of a probation officer.

(3)To not consume, purchase or possess alcohol or illicit drugs for the duration of your home detention sentence.

(4)To attend any rehabilitative or reintegrative programme as may be directed by your probation officer.

[33]     I also impose the following special post-detention conditions for a period of six months to run from the expiry of your 12 months' home detention:

(1)To reside at Unit 9/6 Sarsfield Street, Herne Bay, Auckland and not to move from the address without the prior written approval of a probation officer.

(2)      To abstain from the consumption of alcohol and illicit drugs.

(3)To  notify  your  probation  officer  prior  to  starting,  terminating  or changing your position or place of employment.

(4)To undertake such counselling or rehabilitative programmes including residential programmes as may be directed by your probation officer.

[34]     Your entitlement to a sentence of home detention is not a permanent one.  If you  do  not  comply  with  the  terms  then  the  alternative  is  a  fulltime  custodial sentence.

[35]     The  sentence  of  home  detention  in  the  circumstances  of  this  case  is  a particularly lenient sentence and, in my view, there is also a need to balance that somewhat with a sentence which requires you to put something back into the community.  Accordingly, you are also sentenced to 300 hours' community work.

[36]     There will be an order for forfeiture and destruction of the cannabis.  Stand down.

Brewer J