R v Hawes HC Tau CRI 2009-069-001530

[2009] NZHC 2407

IN THE HIGH COURT OF NEW ZEALAND

TAURANGA REGISTRY HEARD AT ROTORUA

CRI-2009-069-001530

THE QUEEN

v

HOWARD SCOTT HAWES

Charge:          Possession of cannabis for supply

Plea:               Guilty

Appearances:  H J Derrick for Crown

P G Mabey QC for Prisoner

Sentenced:     20 November 2009

Two years six months’ imprisonment

SENTENCING NOTES OF VENNING J

Solicitors:            Crown Solicitor, Tauranga

Copy to:             P G Mabey QC, Tauranga

R V HAWES HC TAU CRI-2009-069-001530  20 November 2009

[1]      Howard Scott Hawes you are for sentence, having pleaded guilty to a charge

of  possession  of  cannabis  for  sale.   The  maximum  penalty for  that  is  eight  years’ imprisonment.   You are here for sentence in this Court, in the High Court, because the District Court declined jurisdiction.

[2]      The facts appear from the summary to which you have pleaded guilty.  On 23

April 2009 the police following up an investigation went to a relatively remote area

in  the  Kaingaroa  Forest.   There  they  located  you  and  others  at  a  site,  which  had obviously been prepared for the purpose of drying and processing cannabis plants. When  you  were  located  there  you  had  garden  secateurs  in  your  pocket. Your fingertips were stained green from handling the cannabis.   You declined to make a formal statement but admitted the cannabis was yours.  You said you had travelled to the area the week before to harvest and hang the cannabis to dry.  The cannabis has been  examined  by an  expert  and  has  been  classed  as  good  quality.   A  substantial amount of cannabis was found at the site as you know.  Eight and a half kilograms of partially  manicured  cannabis  head  was  recovered  from  the  scene  and  allowing  a further reduction of about 25 percent for final manicuring would result in a harvest of approximately six kilograms of saleable cannabis head.  Twenty-one kilograms of unmanicured cannabis was also found at the scene and allowing 50 percent reduction in   weight   to complete its preparation for sale would result   in   a   harvest   of approximately  10  kilograms  for  sale. So  between  about  16  and  17  kilograms  of cannabis head would have been obtained from the crop that you were harvesting.

[3]      Using those quantities and the prices that are known to be achievable for the sale of cannabis, the cannabis that you were found in possession of could have sold, depending on how it was sold, ultimately for between about $110,000 and $130,000.

[4]      You are co-operative when spoken to the police and as counsel has noted you pleaded guilty at a relatively early stage. Mr Hawes, at the age of 48 you are before the Court for sentence for the first time. You live with your partner and her daughter and you have two sons yourself. You are a local in that you have resided in the Te Puke  area  since  you  were  18. You have always been employed in the  building

industry  until  last  November  when  you  suffered  a  back  injury. I  have  seen  the reference from an employer.

[5]      Apparently you have been using cannabis since the age of 18 and accept that you  were  using  cannabis  heavily  prior  to  your  apprehension  in  relation  to  this offending.   A  self  reported  test  used  to  measure  alcohol  and  drug  use  indicated  a harmful pattern of drug use.

[6]      There is a reference in the pre-sentence report to you saying that you didn’t intend  to  gain  from  the  cannabis  and  that  it  was  grown  for  personal  use. Your counsel  has  realistically  suggested  that  I  should  put  that  to  one  side.  It  is inconsistent with your plea and frankly it is simply an unrealistic statement to have made in relation to the quantity of cannabis that was found.

[7]      You have shown some insight I accept into your offending.   You have told the probation officer writing the pre-sentence report this was the stupidest thing you have ever done.   Undoubtedly you did it because of your addiction to cannabis and because of your involvement in the use of that drug yourself.

[8]      You have expressed desire to participate in drug rehabilitation programmes and I have seen the letter from the Hamner Clinic that confirms you approached that agency yourself.

[9]      From the letters that have been written in your support Mr Hawes and from what I have gleaned from reading this file, you are not an unintelligent man.   You know why you are here now and you appreciate and understand now the seriousness of what you were involved in I am sure.   I have no doubt you regret what you have become involved  in.   You have  to be  dealt  with by this Court for  your  offending. You will appreciate now that your offending, arising out of this drug, affects you but also it affects those that you love and your families.  There has been a very sensitive and sensible letter written in your support by your partner.  You are very fortunate to have had her support and that you still have that support.

[10]     In  sentencing  you,  however,  Mr  Hawes  I  have  to  take  into  account  the principles and purposes of the Sentencing Act.  The relevant purposes are:

·     to  hold  you  accountable  for  the  harm  done  to  the  community  by  drug supply.   You  have  seen  personally  now  and  understand  the  effect  that this drug can have on you and it has obviously impacted on others in the community  and  it  is  only  available  in  the  community  because  it  is available for sale through people like you;

·     to promote in you responsibility for and acknowledgement of that harm;

·     to  denounce  the  conduct  that  you  were  involved  in,  which  is  having cannabis for sale;  and

·     to deter you but also others from committing similar offending.

[11]     I am also required to take into account the principles in the Act.  In this case they include:

·     the  seriousness  of  the  offence,  which  is  reflected  in  the  maximum sentence I refer to;

·     the seriousness of your offending in these circumstances, in other words the quantity that you were found with;

·     the need to be consistent with other sentences of this Court and the Court

of Appeal;  and

·     balanced  against  that  I  am  directed  to  impose  the  least  restrictive outcome appropriate.

[12]     As counsel have acknowledged in their submissions the leading authority is the Court of Appeal decision of R v Terewi (1999) 16 CRNZ 429 (CA).  Given the amount of cannabis you were found with and the value of it, your offending falls into the bottom of category 3 identified by the Court in that case. Both the Crown and

your  counsel  agree  that  the  appropriate  start  point  must  be  four  years  and  I  am prepared to accept that in this case.

[13]     Mr Hawes there are no personal aggravating factors in your case.   I turn to mitigating factors that  I can take into account in  your favour.   You are  entitled to credit for your clean record.   It is frankly a real shame that at the age of 48 you are here in this Court to be dealt with today.

[14]     You have in the past contributed to the community through  your work  and through  the  fact  you  have  not  caused  a  problem  or  been  before  the  Court  before. You  are  to  get  credit  for  that.  I  also  take  into  account  that  your  willingness  to address your problem is genuine.  For those factors I give you a credit of six months.

[15]     The major factor in your favour is your guilty plea.  It was not entered at the earliest occasion as that is referred to in the authorities but I accept, as Mr Mabey has submitted, it was entered at a relatively early stage.   In light of the Court of Appeal decision in R v Hessell [2009] NZCA 450 a further discount approaching 30 percent is appropriate.

[16]     Mr Hawes please stand.  On the charge of possession of cannabis for sale you are sentenced to imprisonment for two years six months.  Mr Hawes you must serve this sentence obviously but there is no reason for you to be back before this Court ever again.  Stand down.

Venning J