R v F HC Wanganui CRI-2010-083-980
[2010] NZHC 1908
•26 October 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY
CRI-2010-083-980
THE QUEEN
v
F
Appearances: J Woodcock for the Crown
D Goodlet for Mr F
Date: 26 October 2010
SENTENCING REMARKS OF MALLON J
[1] Mr F , you appear for sentencing on one count of cultivating cannabis, two counts of possession of cannabis and one count of possession of cannabis oil. The cultivation charge carries a maximum penalty of seven years’ imprisonment. The other counts carry a maximum penalty of three months’ imprisonment and/or a
$500 fine. You pleaded guilty to these charges in the District Court, but are here for sentencing in the High Court because the District Court declined jurisdiction. Jurisdiction was declined on the basis that a sentence of imprisonment exceeding two years might be imposed.
[2] The offending arises out of two incidents. The first incident, which gave rise to one of the possession charges, arose on 22 April 2010. On that day you were in Taihape. The police saw you and another man in a picnic area and when they spoke
to you they smelt cannabis. You showed the police a small container containing
R V F HC WANG CRI-2010-083-980 26 October 2010
cannabis head that had been in your pocket. This led to a search of the other man’s car in which the two of you had been travelling. Under blankets in the boot of the car, inside an ammunition container with your name on it, the police found 528 grams (1 pound) of cannabis head. The cannabis was divided into two small zip lock plastic bags and one large plastic shopping bag. You admitted that all the cannabis was yours.
[3] The second incident, which gave rise to the remaining charges, relates to a search of your residence in Fielding on 28 May 2010. Next to your bed the police found 87 recently cut cannabis clones growing hydroponically. The plants were in a healthy condition. The hydroponics operation consisted of a large fluorescent light, three troughs, and a pump pumping heated water and nutrients through the troughs. The police also found in the bedroom a plastic bag with 450 grams of dried cannabis leaf, three quantities of cannabis head in other containers or bags which together totalled 40 grams, and a pill bottle with about 3-4 grams of cannabis oil. You admitted that the cannabis belonged to you.
[4] For this offending the Crown submits that a starting point of between three to four years’ imprisonment is appropriate. The Crown submits that a conservative value of all the cannabis is just under $140,000 (based on a value of $3,500 per pound). It submits that it can be inferred that there was a commercial element to your offending. It submits that the cultivation operation falls at the higher end of category 2 as discussed in the Court of Appeal’s guideline judgment: R v Terewi [1999] 3 NZLR 62 at [4]. Your counsel emphasises that the plants were only at the clone stage and so the attrition rate may have been greater than that allowed by the Crown’s figures. She also suggests that the dollar value attributed is likely to be towards the top end. She submits that the offending falls on the border line of category one and two discussed in the Terewi judgment. A starting point of two years’ imprisonment for the cultivation is suggested, with an uplift of eight months’ imprisonment for the other possession charges.
[5] A difference between the Crown and your counsel is whether there is a commercial element to your offending. This is potentially important because any commercial element to the offending puts the offending into category two, rather
than category one [R v Andrews [2000] 2 NZLR 205, 29 March 2000 at [9]]. A commercial element exists if there is any object of deriving profit, whereas there is no commercial element if no sale to another has occurred or is intended as per the description of the categories in R v Terewi.
[6] The Crown says that a commercial element can be inferred because of the number of plants found; the size, nature and sophistication of the cannabis operation; the inference that the plants were to be relocated to an outdoor operation; the evidence of a perpetual operation given the large amount of cannabis leaf located; and the inference of dealing in light of the head material found in the car and the way it was packaged and concealed.
[7] Your counsel notes that you were initially charged with possession for supply but this was later amended to possession simpliciter. She relies on R v Latham [2007] NZCA 552 as providing relevant guidance as to where this offending falls. In that case over 200 cannabis plants at various stages of growth were found. The Court of Appeal noted the difference between evidence of sale and evidence of supply. In that case there was evidence of some of the cultivation being for supply rather than sale. That put the offending on the border-line of category one and two.
[8] If there was a commercial element to the offending that would be an aggravating factor. It is therefore for the Crown to prove. The number of plants and the fact that you were travelling with a reasonably large amount of cannabis head when you were apprehended in Taihape makes me suspicious, but suspicion is not the test. There is no other paraphernalia of dealing, such as scales or cash and insofar as any of the cannabis in the car or in your bedroom was packaged (and most of it was not), that is just as consistent with personal use as it is for sale.
[9] The hydroponic operation in and of itself does not indicate commerciality. The operation was apparently working sufficiently well for the plants to be in a healthy state although they were at a young stage and it is unclear whether the cannabis leaf came from the same operation or an earlier cycle or from somewhere else all together. All of this is consistent with a hydroponics operation for personal
use. It is unclear if the operation was to be moved outdoors but even if it was I do not see how this indicates commerciality.
[10] The information before me is that you are a heavy user of cannabis. It is reasonably possible that the cannabis was grown principally for yourself, although given the size of the crop, it is unreasonable to think that none of it would have been supplied to others, albeit not necessarily for very much profit.
[11] The Court of Appeal has made it clear that deterrence is important in this kind of offending. Also important is consistency with other offenders. Useful comparisons with the offending here in my view are provided by the following cases R v Timoti [HC Tauranga CRI 2004-087-02197, 17 March 2005]; R v Suthridge [HC Auckland CRI-2007-404-254, 6 November 2009]; R v Fenton [CA 247/99,
11 October 1999]; and R v McGlip [(2006) 23 CRNZ 526].
[12] I consider the lead charge to be the cultivation charge with all the other offending connected to that offending. In light of the number of plants and their potential yield I consider that a starting point of 18 months’ imprisonment is appropriate on the cultivation charge. I uplift this by four months for the possession charges giving an overall starting point for the totality of the offending of 22 months’ imprisonment. I uplift this by a further two months for the aggravating feature that the cannabis cultivation occurred when you were on bail for the earlier April incident.
[13] The Crown does not seek a further uplift for your previous convictions. I agree that they should not be treated as aggravating. You have a number of convictions for various matters, most recently shoplifting. You have cannabis possession convictions in 2008, 2007 and 1997. All of this could be described as low level offending and you have not been before the Court on a charge serious as the present cultivation charge.
[14] That leaves me to consider mitigating factors. You are 30 years old. You are currently a sickness beneficiary and have not worked in paid employment since
2008. You are a heavy user of cannabis which you have put down to parts of your
life that have caused you grief. There is nothing in any of this though that counts as mitigating.
[15] Your guilty plea is however mitigating. Your counsel submits that a discount of 33% is appropriate, whereas the Crown submits that a 25% discount is appropriate. The discount that is appropriate depends on whether your guilty plea was entered at the first reasonable opportunity. Your guilty plea was entered at around the time of committal. It was raised as a possibility earlier in the context of a discussion about whether other charges should be withdrawn. On the basis of Hessel I consider a 25% discount is appropriate.
[16] That gives an end sentence of 18 months’ imprisonment. As that is a short term imprisonment sentence, home detention would normally be considered. The Crown emphasises the size and sophistication of the operation, that you have breached Court orders before and that there are no real signs of motivation to address your addiction. It also notes that the cultivation occurred in your home at the time. Your counsel notes that you have complied with your bail terms and that, although you have a conviction for non-compliance with a sentence of community work, that was back in 2008 and there does not appear to be any other difficulties of compliance with Court orders as disclosed by your record.
[17] I would have considered home detention to be an appropriate sentence if you had a suitable address. Home detention is a deterrent sentence and would in my view be consistent with other cases for offending of the level involved here. I accept the point that your record of compliance with Court orders is not such as to cause me concern that you would not comply with a sentence of home detention if I could order it. Unfortunately you do not have a suitable address. You have had time to find one and so I am not going to adjourn the matter now to allow you further time to find an address. I will however make an order granting you leave to apply for home detention if you do find a suitable address.
[18] So what all of this means is that on the cultivation charge I sentence you to
18 months’ imprisonment. On each of the possession charges I sentence you to three months’ imprisonment, each of those being concurrent on the sentence on the
cultivation charge. I make an order granting you leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if you are able to find a suitable address at a later date.
[19] That is all. You can stand down now.
Mallon J
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