R v Hartley HC Gisborne CRI 2006-016-3469

[2007] NZHC 1635

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2006-016-3469

THE QUEEN

v

WAYNE MAURICE HARTLEY

Hearing:         16 February 2007

Appearances: R J Collins for Crown

N Wright for Prisoner

Judgment:      16 February 2007

SENTENCING REMARKS OF ANDREWS J

Solicitors:

Crown Solicitor, Napier Fax [phone]

R V W M HARTLEY HC GIS CRI 2006-016-3469  16 February 2007

Rishworth, Wall & Mathieson, Gisborne Fax [phone]

Introduction

[1]      Wayne Maurice Hartley, you appear for sentence today having pleaded guilty to one charge of cultivating cannabis and one charge of possessing cannabis oil.  The maximum penalty for cultivating cannabis is seven years imprisonment.

[2]      Today I am sentencing you solely in respect of the cultivation charge.

Relevant facts

[3]      The  Police  executed  a  search  warrant  on  your  home  at  7  Miro  Street, Gisborne on 12 November 2006.  They found a bowl containing cannabis oil residue in the kitchen, they then found   142 cannabis plants (as counted by the Police) growing under lights in the ceiling cavity of the house.  The plants were at various stages of growth but none were at maturity.

[4]      The Police found another seven cannabis plants growing amongst vegetables in a garden at the rear of the house.  The Police calculated the commercial value of the potential crop from the plants as being in the vicinity of $112,500 for the ceiling plants and $17,500 for the outdoor plants.

[5]      You maintained that you grew the cannabis for your own use and not for any commercial purpose.  I will return to this point later.

Sentencing principles

[6]      I now come to consider what sentence is appropriate.  The process I follow is to decide what sentence would be appropriate had you gone through a trial and then been convicted.   This will be the starting point and you will have heard both Ms Wright and Mr Collins referring to this term, the starting point.

[7]      Then I take into account any aggravating or mitigating features that relate to your offending that is, things that make it more or less serious and mean that the starting point should be increased or decreased.  Then I go on to consider matters

that relate to you personally to determine the appropriate sentence.   That is the procedure that has been set by the Court of Appeal in R v Taueki[1].

[1] R v Taueki [2005] 3 NZLR 372 (CA)

[8]      In sentencing you I have to take into account what the law has set out as the purposes of sentencing in s 7 of the Sentencing Act 2002.    Particularly, I have to hold you accountable, to make you responsible for what you have done.  I have to consider deterrence and protection of the community.  I also have to express the fact that society in general does not approve of commercial growing of cannabis.  At the same time the purpose is to help you with getting back into the community as a useful member of it.

[9]      Section 8 of the Sentencing Act sets out general principles of sentencing that must be considered.  In your case, I consider that the following are relevant:

a)        The gravity of your offending, including your culpability.

b)The seriousness of your offending in comparison with other types of offences.

c)        The general desirability of consistency in sentencing levels.

[10]     I am directed to impose the least restrictive outcome that is appropriate in the circumstances and I also have to consider the aggravating and mitigating factors that I have talked about.   Once those are considered I can establish the starting point which  is  the  sentence  that  is  appropriate  for  your  offending  before  I  go  on  to consider your personal factors.

[11]     I do note that s 15 of the Sentencing Act provides that I should have regard to the desirability of keeping offenders in the community as far as that is practicable with regard to the safety of the community.    However, the Courts can impose a sentence of imprisonment in order to achieve the purpose of the sentencing that are relevant to your case.

Discussion

[12]     With respect that the offence to which you have pleaded guilty I am satisfied that having regard to the matters in ss 7 and 8 of the Sentencing Act, a sentence of imprisonment must be imposed.

[13]     I look now at the features of your offending.   This is the significance of whether you grew the cannabis as a commercial operation.   If you did, then the starting point of your sentence is higher than it would be if the cannabis was solely for your own use.   As you know, having heard evidence on Wednesday, I have decided that the plants were grown for a commercial purpose.  That is the logical and reasonable inference taken from the number of plants found and from the Police evidence that the crop from both plants, even in leaf form, would vastly exceed the amount you would consume yourself.  However, I am also satisfied that you did not gain financially from the operation other than to the extent of having cannabis for your own use.

Pre-sentence report

[14]     I turn now to consider the pre-sentence report prepared by the Probation Officer.  You told the Probation Officer you have suffered from pain, stiffness and depression since your accident in 1989.  Traditional medicines had left you, you said, feeling inactive and only cannabis has eased your pain without that negative side effect.   However, it is noted that you have recently been able to address your pain issues in a more structured and legitimate manner.  The Probation Officer expressed the view that you may be sufficiently motivated to stop offending but the report also records your being considered to be at a high risk of reoffending.

[15]     I note that you have a lengthy list of convictions.    However, you have no convictions since 2001, but that was for cannabis selling offences.  You also have an offence earlier than that for cannabis possession.

[16]     So now I turn to consider what the two counsel here have said today about your offending and you personally.   Ms Wright submitted on your behalf that the crop, when the Police found it, was a long way off  maturity and she noted that you were intending to smoke at least half of that crop.  She also notes that your guilty plea came at an early stage, it was at the first possible opportunity.  On that basis she submits you should be given the maximum discount available.  As to your previous convictions, she notes that this is the first time you  have been involved in cultivation on any commercial scale.   Ms Wright referred to your accident and the severe pain you  have  suffered  and  she  specifically  referred  me  to  the  letters  from  the Psychiatrist, Dr Immelman who confirmed that you are addressing your pain issues by legal means.

[17]     On behalf of the Crown, Mr Collins submitted that the number of plants involved pointed to the commerciality of your operation.   He submitted that your version of events as wanting to harvest the plants early or to harvest only immature leaves would place you in a unique position compared with other cannabis growers. He  noted  that  you  have  six  previous  convictions  involving  cannabis,  there  are charges of dealing which were to an undercover Police Officer, but they were preceded by charges of possession.  He noted your previous convictions.  The list, as you know, is lengthy and wide ranging.

Starting point

[18]     I come to set the starting point for your sentence.  You have heard counsel and myself talking about a decision called Terewi[2].  It is a decision of the Court of Appeal where they described three levels for sentences for cannabis cultivation.

[2] R v Terewi [1999] 3 NZLR 62

[19]     The first level is where a small number of plants are grown for personal use only, without any sales occurring or being intended.   Having found that the cannabis

plants found in your property were grown for a commercial purpose I cannot place you in that category.

[20]     The second category is described as small-scale cultivation for a commercial purpose.    The  Court  of  Appeal  said  that  for  this  category the  starting  point  is imprisonment for two to four years, although if the sales are infrequent or of a limited extent a lower starting point may be justified. As I indicated at the end of my decision on Wednesday, in my view, your offending is in category 2 but at the lower end.

[21]     In light of there being no evidence of sales having occurred, or of your having disposed of the cannabis crop for other consideration, albeit that this may have been fortuitous given the time of the Police search, I have concluded in your case that the starting point should be at the lowest end of the Terewi band 2 and the starting point is therefore two years imprisonment.

[22]     I turn then to factors relating to you personally.  I note that you entered guilty pleas at a very early stage having had the matters brought before the Court under s 153A Summary Proceedings Act 1957.   For that   early plea you are entitled to receive a substantial discount on the starting point.  However, that must be balanced against your having disputed the commerciality of the operation which has involved a further Court hearing.

[23]     Accordingly,  I have  determined  that  the  appropriate  discount  to  be  one- quarter  rather  than  one-third.      Beyond  that  I cannot  see  any basis  for  further deduction.

[24]     I have considered whether your previous convictions should be considered grounds for increasing the length of term of imprisonment but have decided that I will not do that.

[25]     Accordingly, on the charge of cultivation of cannabis you are sentenced to 18 months imprisonment.

Home detention

[26]     As your sentence is less than two years imprisonment I am required by s 97

Sentencing Act 2002 to consider  whether to  give  you leave to  apply for  home detention.  Leave can only be given if I am satisfied that it would be appropriate to do so taking into account the nature and seriousness of your offending, your circumstances and your background.   Ms Wright has submitted strongly on your behalf that you should be given leave to apply for home detention and that your sentence should be deferred to enable you to make that application immediately.

[27]     In  your  case  an  important  consideration  is  the  fact  that  your  offending occurred at your home.  As Mr Collins has pointed out to me that is a matter that is of particular importance especially in an area where deterrent sentences are required (see R v Rosevear[3]) and sentencing on cultivation is indeed one where deterrent sentences are required.   I have considered whether there are special circumstances which  would  point  to  your  being  given  to  apply  for  home  detention.    I  have

considered that Dr Immelmann refers to and the fact that you have now addressed the problem of your pain by legitimate means, rather than by resorting to cannabis, but  I have  also  had  to  take  into  account  the  long  list  of  previous  convictions including previous convictions involving cannabis dealing and possession.

[3] R v Rosevear CA238/05, 29 August 2005

[28]     I have had referred to me the decision of Harrison J in R v Marr4  where he gave  leave to apply for home detention.  Unfortunately, I cannot place you in the same category as that person who, it is clear, did not have the same background of previous offending as you have.   Accordingly, I do not find that there are circumstances which would enable me to give you leave to apply for home detention. Your sentence, as I said, is 18 months imprisonment.

[29]     Please stand down.

Andrews  J

4   R v Marr (HC GIS CRI-2005-082-65, Harrison J, 5 October 2005