R v Foreman
[2012] NZHC 1954
•6 August 2012
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI 2012-021-462 [2012] NZHC 1954
THE QUEEN
v
NORMAN JAMES FOREMAN
Hearing: 6 August 2012
Counsel: S A Law for Crown
K Marriner for Prisoner
Sentence: 6 August 2012
SENTENCING NOTES OF DOBSON J
[1] You are one of three sentencings for cannabis offending that I have to do today. In each of them, the Police have persuaded the District Court that an appropriate sentence for the convictions is likely to exceed the District Court’s jurisdiction. You are for sentence on convictions for cultivation of cannabis and possession of equipment for cultivation of cannabis, which carry maximum penalties of seven and five years’ imprisonment respectively. The maximum that the District Court could impose would have been a sentence of two years’ imprisonment and District Court Judge Roberts declined jurisdiction because he considered that he would have difficulty fashioning a sentence of less than two years.
[2] Your offending involved converting two of the bedrooms of your home into cannabis growing nurseries. After a tip-off, the Police executed a search warrant on
R v FOREMAN HC NWP CRI 2012-021-462 [6 August 2012]
2 May this year and located 97 mature cannabis plants, together with equipment for growing cannabis, and 856 grams of dried cannabis leaf. There were also 49 grams of dried cannabis bud. You admitted growing the cannabis and said that you did not use cannabis yourself at all. You pursued cannabis growing in an attempt to make a bit of money in hard times. Your partner has already been sentenced on a charge of allowing the premises to be used for these illegal activities.
[3] In your case, you have not been charged with possession of cannabis for sale. The Misuse of Drugs Act 1975 presumes that the quantity of cannabis found in your house was in your possession for the purposes of supply, but that presumption only applies directly where it relates to a charge of possession of cannabis. The law distinguishes between cultivating cannabis as a prohibited plant, and possession of
cannabis material harvested from such plants, as a prohibited class C drug.[1] In your
case, I have regard to the amount of dried cannabis plant material as an indicator of the scale of your cultivating activities, but do not treat it as reflecting the additional criminality that would arise if you were also charged with possession of the dried material, weighing about 850 grams, for the purposes of sale.
[1] R v Gillan (2006) 22 CRNZ 882.
[4] My approach to sentencing has to have regard to the purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act 2002. Of the purposes in s 7, in this case it is relevant to hold you accountable for the harm done to the community by this offending, to promote in you a sense of responsibility for, and acknowledgement of, the harm that such offending causes, to denounce the conduct involved in this offending and to deter you and to deter others from committing the same or similar types of offence.
[5] In terms of the principles of sentencing in s 8, I am mindful of the need to take into account the relative gravity of this offending and the degree of your culpability for it, the seriousness of this offending in comparison with other types of offences, and the relativity to the maximum penalties that are prescribed. I have to recognise the desirability of a measure of consistency between the sentencing levels for comparable offending, and ultimately I must impose the least restrictive outcome
that is appropriate in the circumstances.
.
[6] The Court of Appeal has set out tariffs for the level of sentencing for cannabis offending in R v Terewi.[2] There, the Court defined three broad bands of the types of offending involved in cultivation of cannabis and its supply. Your offending is squarely within category two that covers small-scale cultivation for a commercial purpose. Within that category, the Court of Appeal has suggested starting points generally between two and four years’ imprisonment. If there have only been
infrequent or limited sales of cannabis cited by the Police, that could justify a lower starting point.
[2] R v Terewi [1999] 3 NZLR 62 (CA).
[7] In your case, there is no evidence of the extent or circumstances of any selling of cannabis. What I have to deal with is the relative sophistication and scale of your activity in growing cannabis plants, where I am bound to infer that the purpose for doing so was with the intention that you would make money by selling the harvested product.
[8] You are still to be dealt with within category two of R v Terewi. The relative sophistication and scale of the growing operation with 97 mature plants makes it a moderately large operation with a commercial objective. The absence of any evidence on the nature or extent of sales takes your offending more towards the bottom of the band for sentencing purposes.
[9] In addition to the scale and sophistication of the growing operation, the Crown cites the evident pre-meditation as an aggravating factor. There is certainly a point that this was planned and on-going, so that in addition to the level of sophistication, there is an aspect that it was calculated offending. You knew the risk you were taking.
[10] The Crown has contended for a starting point, initially in Ms Law’s written submissions, in the vicinity of four years’ imprisonment, and as matters have developed this morning she has acknowledged a reduction to three and a half years as the appropriate starting point. She still contends that would end up with an end
sentence in the vicinity of three years’ imprisonment.
[11] On your behalf, Mrs Marriner has argued on the basis of a number of factors, many of them particular to you, that a starting point lower than two years and six months should be adopted.
[12] I have considered a number of comparable cases where the scale of the growing operation influenced the starting point. First, there are two Court of Appeal decisions. One is R v McMullan where Mr McMullan was sentenced in the High Court to five years’ imprisonment.[3] He had 48 mature plants and 160 seedlings. There was a sophistication in the growing operation and if the existing crop had been grown to maturity, the potential value would have been in the range between
$250,000 and $380,000. On appeal to the Court of Appeal, the Court considered an appropriate starting point would have been five years, but found that the appropriate end sentence was four years.
[3] R v McMullan CA234/01, 20 June 2002.
[13] Then there is another Court of Appeal decision in R v Butler.[4] There, there was a total of 106 plants, 76 seedlings and 30 larger plants. The Court of Appeal there considered a starting point of three and a half to four years’ imprisonment.
[4] R v Butler CA221/04, 4 October 2004.
[14] I then had regard to two comparable High Court sentencings. The first is R v Sharp.[5] In that case, the growing activity involved 80 plants and Mr Sharp was found with 55 ounces of cannabis and a substantial amount of money. There, a starting point of three years’ imprisonment was adopted.
[5] R v Sharp HC Rotorua CRI 2010-063-4641, 22 July 2011.
[15] Finally, in the case that Mrs Marriner has urged is the closest comparator is the High Court decision in R v White.[6] There, there were 90 cannabis plants, so it is comparable to the scale of your operation. There were 150 seedlings and 1.6 kilos of dried material. There, a starting point of two years and six months was adopted, so
that is at the bottom of the range.
[6] R v White HC Christchurch CRI 2010-009-7016, 23 September 2010.
[16] Before having regard to any aggravating and mitigating circumstances that are personal to you, I settle on a starting point for your offending of two years and eight months’ imprisonment.
[17] There are a number of mitigating factors personal to you. The first is your early guilty plea and what appears to have been complete co-operation with the Police. That co-operation has occurred in circumstances where you have demonstrated remorse for the poor judgement involved in setting up the cannabis growing operation. On the basis of the Supreme Court decision in Hessell v R,[7] this clearly entitles you to a 25 per cent discount cent, with the prospect of genuine remorse adding somewhat to that.
[7] Hessell v R [2010] NZSC 135.
[18] Now this is your first drug offending. You did have a spate of drink driving convictions, which are worrying to me in the sense that their repetition suggests poor decision-making and a weakness to temptation. Hopefully you are, Mr Foreman, learning your lesson and you will not be tempted in relation to any repetition of the present offending.
[19] At 63, you have prostate cancer that requires on-going treatment, but which, in the view of the writer of the pre-sentence report, is not sufficient to preclude your serving any form of appropriate sentence.
[20] The report writer assesses you at being medium to high risk of re-offending unless you address your financial difficulties, and the report proposes a condition of any sentence that would be designed to help you in that respect.
[21] The ultimate recommendation of the pre-sentence report writer was a sentence of imprisonment.
[22] Overall, I treat the demonstration of remorse, and your age and health condition, as justifying an additional 10 per cent discount, beyond the principal mitigating factor of your early guilty plea. So starting from a point of 32 months –
two years and eight months - the first 10 per cent reduction would reduce it to
29 months, and reducing that by a further 25 per cent reduces it to a little more than
21 months, or one year and nine months’ imprisonment.
[23] So the next issue is whether it is appropriate to transform a prison sentence of that length into a sentence of home detention.
[24] The Police oppose home detention, Mr Foreman, first suggesting it would not represent a sufficient deterrent signal. Secondly, that any home detention would necessarily be to the property at which the offending occurred, and where your partner is serving a community sentence for her part in allowing the premises to be used for cannabis offending.
[25] The Police also have concerns at the risk of your re-offending at the property, when the electronic monitoring of a home detention sentence would not constitute an effective constraint. And Ms Law has emphasised this morning that from the Crown’s perspective, this is not a case for home detention because it simply does not send a sufficient deterrent signal to you and to others.
[26] As against that, I have a real concern that, at 63, and given the nature of your present employment, a prison sentence of any length will disrupt your employment opportunities within the area where you live, to an extent that alternatives on your release from prison would be slim to non-existent.
[27] You enjoy the support of your present employer, who has provided a letter of support as to your work qualities, and indicated that it is the wish of the employer that you remain employed there.
[28] I must have regard to the prospects for your rehabilitation. Clearly, that is much better served by keeping you in the community than will be the case in many sentencings for cultivating cannabis, having regard to your age, health and that current employment arrangement.
[29] I am not deterred from that view by the risk of re-offending. You and your partner must know that you will be vulnerable to monitoring by the Police from now
on, to say nothing of whoever it was who dobbed you in. Any future offending of this type would be likely to be dealt with by way of a far, far harsher sentence. Given your circumstances, whether the opportunity to re-offend at your home arises in the near future, or is deferred until you achieve parole after a prison sentence, does not, in my view, make a great deal of difference. But it is a risk you must not take.
[30] So that leaves the concern of the adequacy of a deterrent signal. I am satisfied that that can be accommodated by imposing a period of home detention somewhat longer than might otherwise have been the usual transformation of a sentence of 21 months’ imprisonment. Usually we halve it, and you should know, and I warn you, that longer sentences of home detention are no picnic. The data coming through is that people do have real difficulty completing without breach periods of home detention of any longer than six or eight months.
[31] In your case, I am going to sentence you to 11 months’ home detention, which is just one short of the maximum that you can be required to serve. I am going to make it on terms that those monitoring your sentence permit your absences from home to continue your job. You are a shift worker and you will, every week, have to advise those who are monitoring your sentence of the hours that you are working and your entitlement to leave your home will be dovetailed to permit just that, and I am afraid nothing else.
[32] So having regard to all those circumstances, I am sentencing you, concurrently on both convictions, to a term of 11 months’ home detention. I do so on all the terms recommended in the pre-sentence report and I will go through those:
(a) first, you are to travel directly from here to 958 South Road, Mokoia and await the arrival of the Probation Officer and the monitoring company representative;
(b)you are to remain at that address for the duration of home detention unless given the written approval of a Probation Officer;
(c) you are not to possess or consume alcohol or non-prescription drugs for the duration of home detention – so no drinking for 11 months;
(d)you are to attend an assessment for budgeting advice and, if found suitable, to attend and complete any programme as may be recommended to the satisfaction of the Probation Officer and programme provider; and
(e) you are to attend substance abuse education as directed by the
Probation Officer.
[33] You and your type sometimes consider that growing cannabis is a victimless crime. Believe me it is not, and the last of those conditions is intended to educate you to the harm that the offending causes.
[34] I will also impose a condition, as I foreshadowed, that that those monitoring your sentence are directed to permit absences from your home address sufficient to permit shift work with your present employer, for shifts that you are to advise each week in advance to those responsible for monitoring your sentence.
[35] In accordance with the Police application, I order destruction of the cannabis plant material and the equipment seized by the Police under s 32 of the Misuse of Drugs Act 1975.
[36] You may stand down.
Dobson J
Solicitors:
Crown Solicitor, New Plymouth
Parker & Marriner, Hawera for prisoner