R v Harvey

[2013] NZHC 2425

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2013-088-001468 [2013] NZHC 2425

THE QUEEN

v

BRENT EDWARD HARVEY

Charges:

Plea:

Cannabis for sale; cultivating cannabis; producing a class B controlled drug cannabis oil; unlawful possession of a firearm and unlawful possession of ammunition

Guilty

Appearances:

C M Gisler for Crown
Te K W Puriri for Prisoner

Sentenced:

17 September 2013

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Whangarei

Copy to:            W Puriri, Whangarei

R v HARVEY [2013] NZHC 2425 [17 September 2013]

[1]      Brent Harvey you are for sentence in this Court having pleaded guilty to possession of cannabis for sale, cultivating cannabis, producing a class B controlled drug cannabis oil, unlawful possession of a firearm and unlawful possession of ammunition.  The District Court has declined jurisdiction.  That is why you are for sentence in this Court.

Summary of facts

[2]      On 27 March this year the police were using a helicopter in the Towai area for the purpose of locating cannabis crops.   Cannabis plants were seen in the Monument Road area and a ground crew of police were directed to the location. They identified it as 123 Monument Road.   Inside the address were a number of documents addressed to you.  About 75 metres from the main dwelling were six cannabis plants ranging in height from half a metre to a metre. A further 200 metres into the property the police found another 24 plants between half a metre and 1.2 metres tall.  All of the plants were in various stages of harvesting and all were in head.

[3]      Inside  the  dwelling  a  pot  containing  cannabis  oil  was  found  in  the microwave.  A flat glass dish located on a window sill also had some cannabis oil. Various items used in the manufacture of cannabis oil were located throughout the house.  They included heating elements, Isopropanol and loose cannabis leaves and head. The loose cannabis leaves and head weighed 110 grams.

[4]      In a green Countdown shopping bag the police found 787 grams of cannabis head and also in the same bag they found a North Tec registration form filled out in your name.  Located in a paper lined tray was even more cannabis head weighing

793 grams. When initially weighed there was a combined weight of 1570 grams and in July this year when the cannabis was weighed again it had a net dry weight of 885 grams, amounting to about 31.6 ounces.   At a street value of $350 an ounce the cannabis head was valued at over $11,000.

[5]      When searching the property the police also found a shotgun located partially hidden under a tree stump about 50 metres from the dwelling.  It was a 12 gauge

pump action Mossberg shotgun. There were three 12 gauge shotgun cartridges in the gun, one loaded in the chamber and two in the magazine.

[6]      When you were spoken to you admitted the cannabis in the house was yours and said it was for your personal use.  You also acknowledged the cannabis oil was yours and that you had manufactured it.  You initially denied knowledge of the shotgun and ammunition and any knowledge of the cannabis plants about the property.

[7]      Mr Harvey, your pre-sentence report is not very a positive one.  It notes your high number of convictions for drug offending in the past and that at the time of the interview you were not complying complying with a Community Work sentence.  It also notes your current convictions indicate an escalation in seriousness of your offending.

[8]      This morning your counsel presented the Court with a letter you had written and you say you now intend to change for the good of your family.  I hope that is a genuine expression of your intention Mr Harvey, but this Court has to sentence you on the basis of the circumstances before it, which include your past history.

[9]      It is apparent the reason for your offending is your addiction to cannabis. However, at present, despite what you say, it does not seem you are motivated to stop using cannabis. You have told the probation officer you use it to assist with pain relief.  That is a common response from people growing the drug and manufacturing it in the way you were.

[10]     At the time of your offending you were subject to a sentence for a variety of offending,  including  possession   of  equipment  for  producing  and  cultivating cannabis, possession of cannabis oil and unlawfully carrying or possessing a firearm. It is of real concern to the Court that you are back before the Court on similar offending while subject to that sentence.

[11]     In  sentencing  you  I  am  required  to  take  into  account the  purposes  and principles of the Sentencing Act.  In this case the particularly relevant factors are:

to make you accept responsibility for your offending;

to deter you and others from offending in this way.  This Court has said in the past   that  cannabis  offending  is  endemic  in  Northland.     It  affects  the community as a whole due.  Other types of offending is associated with it,

including burglary and offences involving violence;

the sentence should also denounce this sort of offending.

[12]     Drug offending even at a relatively low level, has a potential to impact on the community because it makes drugs available to vulnerable members of the community.   In observing that I note your counsel’s submission that in your case your supply of it was limited to your friends and associates.

[13]     I am also required to consider your rehabilitation and reintegration into the community.  Frankly Mr Harvey, at the stage of life you are at, it is really entirely up to you.

[14]     I am also directed to take account of the gravity of the offending, recognised by the maximum penalty prescribed and also your culpability.  I have considered the authorities counsel have referred to as the sentence I impose on you should be consistent with other sentences imposed by the Court for similar offending.  The Crown submits a starting point for sentence is two years, six months with uplifts to reflect the totality and to reflect your previous convictions.  Mr Puriri submits that two years, three months is the appropriate start having regard to the decision of

R v Moore, which he submits is a similar case.1

[15]     I take as the lead sentence the possession of cannabis for sale.  The offending falls into category 2 of R v Terewi,2  albeit, I accept, towards the lower end of that offending.  This was small scale cultivation for a commercial purpose.   You have

accepted as much by your guilty pleas.

1      R v Moore [2013] NZHC 1427.

2      R v Terewi [1999] 3 NZLR 62.

[16]     I  take  as  a  start  point  for  sentencing  you  two  years,  four  months’ imprisonment.  I uplift that by six months to take account of the totality of the offending in this case, particularly including the possession of the firearm, which despite your counsel’s submissions, I consider to be a serious aggravating factor when associated with the growing and production of cannabis.  I then apply a further uplift to take account of the fact the offending was committed while subject to a sentence.   That together with your previous offending warrants a further uplift of four months.

[17]     I then turn to mitigating factors.   Frankly Mr Harvey the only mitigating factor is your guilty plea.   Mr Puriri has submitted strongly that you should be entitled to a full 25 per cent discount and has explained why the plea was not entered at the earliest opportunity.  However, I have regard to the Supreme Court decision in Hessell v R.3    I note the Crown case against you was a strong case.   In the circumstances the 20 per cent reduction suggested by the Crown is somewhat generous. Nevertheless I apply that.

[18]     Mr Harvey please stand.  On each of the cannabis related charges before the Court you are sentenced to imprisonment for two years, six months.   On the possession of firearm and possession of ammunition charges you are sentenced to imprisonment for six months.  The terms are concurrent.  The effective sentence is two years, six months’ imprisonment.

[19]   I order destruction of the drug utensils, instruments, the shotgun and ammunition. Stand down.

Venning J

3      Hessell v R [2011] 1 NZLR 607.