R v Dixon HC Rotorua CRI 2011-069-000282

[2011] NZHC 1619

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2011-069-000282

THE QUEEN

v

JOHN EDWARD DIXON

Hearing:         20 September 2011 (Heard at Hamilton)

Appearances: N Tahana for Crown

I Farquhar for Prisoner

Judgment:      20 September 2011

SENTENCING NOTES OF KEANE J

Solicitors:           Gordon Pilditch, PO Box 740, Rotorua 3040 (N Tahana) Ian Farquhar, PO Box 1239, Taupo 3351

R V JOHN EDWARD DIXON HC ROT CRI 2011-069-000282 20 September 2011

[1]      John  Dixon,  you  appear  for  sentence  for  two  offences  at  Taupo  on  14

December  2010,  cultivating  the  prohibited  plant,  cannabis,  and  possessing  that class C controlled drug for the purpose of sale or supply.

[2]      You are for sentence in this Court as a result of jurisdiction having been declined in the District Court and in order to sentence you I have had first to resolve a disputed issue of fact.  I shall refer to the nature of that dispute in setting out the context of your offending.

Context

[3]      On the morning of 14 December 2010, as you accept, the Police spoke to you at the industrial shed in which you were then living in Matai Street, Taupo.  As a result they invoked their power to search without warrant both you and the shed for drugs. As to that, there is no issue.

[4]      The  Police  discovered,  as  you  accept,  that  you  were  then  living  on  a mezzanine floor within the shed, that you had a video monitoring system enabling you to check who was coming and going, and that you both possessed and were cultivating cannabis.

[5]      In  a  kitchen  drawer  the  Police  found  40  small  plastic  snaplock  bags  of cannabis and also 70 tinfoil wraps.  Also, a number of others at the front door.  All these contained on average one gram of cannabis.  They also discovered a snaplock bag containing 11.9 grams of cannabis, five capsules of cannabis oil, and 1.5 kilograms of leaf and stalk, and some 2,000 seeds.  The street worth of the cannabis found, principally of not exclusively, the packaged cannabis was $2,500.

[6]      You do not dispute any of that, nor do you dispute that in two of the three portable cabins within the shed, you were growing cannabis hydroponically.  You do dispute the harvest you could have anticipated and the commercial return.

[7]      The first cabin was equipped, as you accept, with lighting, watering and fertilising systems, and that the fertilising systems were computer controlled.  There

were dehumidifiers, fans, and plant growth material and other items necessary to control growth.   In that cabin also, as you accept, there were three mature plants being grown in separate pots, irrigated and fertilised automatically and under fluorescent lights.

[8]      The  Crown’s  case  is  that  these  were  female  “mother  plants”  kept  in  a vegetative state to supply continuously cannabis cuttings or “clones”.  You accept that ideally they should have been female plants, but you deny that you actually knew that they were. At the time of the search that had still to be established.

[9]      In that first cabin also, as you accept, there were 60 cuttings growing in a tray.  The Crown contends that these too, necessarily, were female plants but as with the “mother plants”, so called, you say that was still an unknown. As to those plants, it has been your position that at most perhaps 50 percent were female and even that was not established.

[10]     In the second cabin, also, you accept that there were lighting, irrigation and fertilising systems, equally controlled.  This room contained 62 cannabis seedlings and a further 56 juvenile cannabis plants perhaps, 50-60cm in height.  Again there is the debate about whether these plans were female plants.

[11]     The issue that I had to resolve, as a matter of aggravating fact under s 24 of the Sentencing Act 2002, was therefore, in face of your denial, what sex the plants had and whether it could safely be assumed, as the Crown said, that all were female because that was consistent with the set up.

[12]     I found, as you have heard, that while I was satisfied that you had set up on a commercial basis with sophistication and that you hoped that all the plants were female, I could not discount your assertion that you did not actually know; that you had grown some, at least, including the mother plants, from seeds from Amsterdam; that you were hoping that they would prove female but that as with the first cycle you had cultivated  you could not exclude the possibility that even some of the “mother plants” might have been male.

[13]     Accordingly, the most that I was able to say was that, ideally, the system that you had set up might be capable, on the most optimistic forecasts, of producing the level of cannabis the Crown contended for annually, between 540 and 1,080 ounces with a cash value of between $135,000 and $324,000.   I could not discount the possibility you spoke of relying on Mr Creser, that the yield might have been significantly less.

[14]     Mr Creser went so far as to say that you might have ended up with 65–70 plants, yielding perhaps 16 to 35 ounces of cannabis and, assuming three growth cycles within a year, a commercial return between $16,000–$26,000.   But his evidence, like that of Detective Sergeant Verry, I held, at most went to what the possibilities were.

[15]     The likelihood in my view is that both the harvests, and the financial returns, would have sat somewhere between these two extremes.   But, as I then said to counsel, that in the end did not determine, as it seemed to me, the ultimate issue where you lay for sentence within Terewi category 2.  The sophistication of your set up and your plain intent seem to me to be more compelling.

Pre-sentence report

[16]     You  are,  your  pre-sentence  report  says,  aged  55  years.   You  have  eight children,  most  of whom  are,  it  seems,  adults,  some  in Australia,  some  in  New Zealand.  Your two youngest children, two daughters, live with their mother, your report says, but visit you very frequently on weekends.  That was certainly so when you were interviewed.  Whether that has been so more recently is less than clear.

[17]     You have, your report confirms, been employed in the engineering sector for most of your life and been self-employed. You are an engineer and boiler maker, and that you have also been a heavy cannabis user is surprising. You clearly have a great level of skill, and the ability to do work in a sustained way.  At the time when your report was prepared you were on the sickness benefit, because you had suffered a shoulder injury, but I gather that was atypical.

[18]     Your report says that you do not, on the face of it, have any issue with alcohol but   you   did   say,   and   it   has   been   part   of   your   case   in   disputing   the Crown’s argument as to fact today, that you have been a very heavy user of cannabis; that you have been using daily since you were 13.   You said then, as you say now, that you cultivated largely for yourself.

[19]     On whatever basis you may have offended, your report says, you show little insight or remorse.   Relevant also to sentence, you report says, is that you have related convictions for cultivation, although it points out that you have not been convicted of any cultivation offence since 2003.

[20]     Your  report  recommends  that  you  be  sentenced  to  imprisonment.    That sentence, in the report writer’s opinion is consistent with the amount of cannabis found in your possession.  Community based sanctions it says, for various reasons, are either not suitable or could not begin to suffice.

Sentencing purposes and principles

[21]     In sentencing you I must hold you accountable for the harm you have done, promote in you a sense of responsibility, denounce your conduct, deter you and others from acting in this way, protect the community and provide for the interests of any conceivable victim.  This was very far from victimless offending, even if you do not appreciate it.  I must also, so far as it is possible, assist you in your rehabilitation and reintegration.

[22]     I must have regard to the following sentencing principles: the gravity of your offending, the need to be consistent in sentence with other cases, the need to impose a sentence near to the maximum, should that be warranted.  Equally, I must take into account the contrasting principles:   the need to adopt the least restrictive outcome appropriate; the need to take account of anything that would make any otherwise proper sentence disproportionately severe; and the need to recognise  you in the context of your family and community.

[23]     Where drug offending is as significant as yours is, I have to say, personal circumstances and the more positive purposes and principles of sentencing normally have little part to play.  Denunciation and deterrence are what is principally called for.

Starting point

[24]     The Crown contends, as I have said, that your offending lies at the upper end of band 2 R v Terewi,[1]  which for small scale commercial cultivation for profit, sets starting points in the range 2-4 years imprisonment.  Your counsel contends that you lie rather at the mid or lower end of the category.

[1] R v Terewi [1999] 3 NZLR 62, (CA) paras [5]-[8].

[25]     The Crown contends also that that category accommodates, as well, your related  offence,  possession  for  sale  or  supply  of  the  cannabis  discovered,  and, because a concurrent sentence will be proper for your possession offence, contends for a starting point of four years for the cultivation offence.  Your counsel contends for a starting point that lies between two and a half – three years.

[26]     The issue with which we have been concerned today, to what extent the crop, found at the time of the search was capable of yielding the commercial return the Crown speaks of, or is more consistent with your own need to meet your habit, is answered, it seems to me, by what the Court of Appeal says in Terewi itself.

[27]     In distinguishing between the three categories it identified, the Court spoke about the capacity that indoor growing systems have to accelerate growth cycles and produce cannabis of a higher potency.   That, in itself, the Court said, has to be a principal consideration.  As to the actual or likely yields, the Court said, they should not be seen as guides.  Rather they should alert sentencing Judges to the potential yields and profits.

[28]   The same theme recurs in the later case relating to methamphetamine manufacture, R v Fatu.[2]    A principled approach, the Court said, is to recognise

criminality at two levels; the possession of the equipment for the purpose, and then the use of it.  And, as to actual use and projected yields, the Court there emphasised the role of a disputed fact hearing.  Even then, the Court said, the capacity of the equipment must go to whether the set up was commercial.  I sentence you on that basis.

[2] R v Fatu [2006] 2 NZLR 72 (CA), paras [37]-[42].

[29]     The quantities, as I found, could not be established on the evidence, but the capacity of the equipment certainly could be, and it was sophisticated and capable of commercial function.  I take into account also, in this respect, three cases to which the Crown refers, each involving indoor cultivation, where the starting points taken

ranged between three and a half – four and a half years imprisonment.[3]

[3] R v Butler CA221/04, 4 October 2004; R v Broughton CA18/05, 9 June 2005; Vernon v R CA130/10, 19 July 2010.

[30]     I conclude, notwithstanding the question about how much you were actually cultivating at the time and what it was worth, that especially when your possession offence is taken into account, a starting point of four years imprisonment is appropriate for the cultivation offence.

Aggravating and mitigating factors

[31]     That then brings me to whether there should be any increase in that starting point to take account of your previous related offending. You do have three previous convictions for cultivating cannabis in 1987, 1989 and 2002, and you had one in

2003 for producing a class B drug.

[32]     I have decided that although that shows a consistent pattern over time, the earlier offences are too early to be taken into account and you should receive some credit, at least, for the absence of any such convictions since 2002 or 2003.  I intend therefore, with some hesitation, not to impose any uplift on that account.  There is no issue that you pleaded at the earliest opportunity and that this entitles you to the 25

percent credit recently endorsed by the Supreme Court.

[33]     The upshot is that, for the cultivation offence you will be sentenced to three years imprisonment, and I sentence you concurrently for the possession or sale or supply offence to 18 months imprisonment.   Your actual sentence is three years

imprisonment.

P.J. Keane J