R v Hawke HC Auckland CRI 2009-044-10006

[2010] NZHC 1594

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-044-010006

THE QUEEN

v

STEPHEN FRANCIS HAWKE

Hearing:         24 August 2010

Counsel:         H R Bates and J Dickson for the Crown

P Boylan for the prisoner

Judgment:      24 August 2010

SENTENCE OF POTTER J

Solicitors:           Crown Solicitor, P O Box 2213, Auckland 1140

Copy to:            P Boylan, P O Box 26172, Epsom, Auckland 1344

R V HAWKE HC AK CRI-2009-044-010006  24 August 2010

Introduction

[1]      Mr  Hawke:    You  are  to  be  sentenced  today  on  a  charge  of  cultivating cannabis.  You pleaded guilty to that charge at depositions in the District Court.  The offence carries a maximum penalty of seven years imprisonment under the Misuse of Drugs Act 1975 of which I am sure by this time you are well aware.

Jurisdiction

[2]      You were previously sentenced by Judge Treston in the District Court on Friday 2 July 2010.   However, the sentence imposed of two years three months imprisonment was beyond the jurisdiction of the District Court.   By a joint memorandum of counsel dated 13 July 2010 a request was made to rehear the sentence.  At the rehearing on 2 August 2010 Judge Moore declined jurisdiction and remanded you in custody to the High Court for sentence.  That is the background that brings you before the Court today.

[3]      I am required to re-sentence you because the sentence of Judge Treston must be set aside.

Background facts

[4]      On 16 August 2008 the Police executed a search warrant at Unit 42, 11 The Avenue, Albany.  Present at the address was Mr Hawke.  Police located a cannabis growing operation within the single garage at the address.  The garage had been fully modified for the growing operation.  A total of 32 cannabis plants, with a maximum height of 90 cm, were being grown in plant posts.

[5]      The windows had been  covered  with black cloth to prevent excess light entering, and there were two large heat shrouds, each fitted with two large bulbs which were controlled by electronic timers and set for daily illumination.   Also located were spare large bulbs and a thermometer.   There were four fans and the

garage contained lengths of vent tubing which was ventilating the garage out through the front wall.  Super grow plant food was used to fertilize the cannabis.

[6]      Police calculated the yields of each of these plants to be approximately 40 grams of dried cannabis.  The total potential yield over a twelve month period, given the quantity of plants and the current price of cannabis at the time, was between

$102,850 to $205,700 if sold in ounce form, or $87,500 to $125,000 if sold in pound form.

[7]      Police located a further 630 grams of dried cannabis, which would have a street value of $7,875 if sold in ounce form, or $17,437 if packaged into “tinnies” and sold at $25 each.

[8]      I am advised that it is agreed by counsel that the value of the cannabis in issue for sentencing purposes may be taken as $100,000.

Pre-sentence report

[9]      The report writer assesses Mr Hawke as having a low risk of re-offending. The report notes that he is willing to attend drug counselling in Kaitaia should his sentence permit and that he has a current driver’s licence and owns his own vehicle which would permit him to travel to Kaitaia for that purpose.  The report also notes that Mr Hawke has the support of his sister Mrs Mills and I understand Mrs Mills is present in Court today.  Mrs Mills offers an address at 26 Paradise Road, Coopers Beach, Kaitaia as a home detention residence for Mr Hawke should the Court be prepared to consider a sentence of home detention.   That is the sentence recommended by the report writer.   The report  specifies special conditions that should attach on such a sentence.

Sentencing

[10]     Counsel are agreed that this offending falls within Band 2 in the categories in R v Terewi.[1]     It is accepted that there was clearly a commercial purpose in this cultivation.    However,  Mr  Boylan  submits  that the  absence  of  any evidence  of commercial paraphernalia and Mr Hawke’s admission to the Police that he intended to sell half the crop and to keep the other half for himself for therapeutic purposes, diminishes the gravity of the commerciality attendant upon this growing operation.

Offending in category 2 of Terewi generally requires a starting point between two and four years.

[1] R v Terewi [1999] 3 NZLR 62.

[11]     The Crown submits that an appropriate starting point in this case is in the range of two and a half to three and a half years imprisonment given the quantity and value of the cannabis cultivated and the sophistication of the operation.  Mr Boylan for the defence suggests a fairly precise starting point of two years and three months imprisonment.

[12]     A number of authorities were referred to by both the Crown and the defence which I have considered.  Perhaps the most relevant case is R v Collings[2].  In that case the Court of Appeal upheld a sentence of three and a half years which was imposed following trial for cannabis cultivation involving cannabis plant material weighing almost two kilograms in total and 44 cannabis plants which were found at the prisoner’s residential property.   For sentencing purposes the agreed value was

$80,000.   The starting point of three and a half years was also the end sentence imposed because there were no mitigating factors.

[2] R v Collings [2008] NZCA 30

[13]     Mr Boylan referred to several cases where home detention has been imposed in what he submitted were not dissimilar cannabis growing operations.

[14]     I consider a starting point of not less than three years to be appropriate in this case.

[15]     Mr Boylan submits that there are personal circumstances that should be taken into account on sentencing.  The Crown correctly notes and Mr Bates referred to this in his submissions that personal circumstances, as he said, take a back seat in drug offending, but the Crown nevertheless acknowledges they may have a place in some cases.

[16]     Mr Boylan notes, Mr Hawke, that you are now 48 years of age, that you have suffered from some drug abuse and depression, which is confirmed by a letter from Dr Veronica Spencer of the Browns Bay Medical Centre dated 20 April 2010.  You separated from your wife in 2004 and you have a 15 year old daughter from that relationship whom you see regularly pursuant to access arrangements.  Your counsel says  that  you  are  remorseful  for  this  offending,  particularly in  relation  to  your daughter  but  also  for  your  friends,  your  family,  your  neighbours  and  your community.   Further, you lost your job as a building inspector with the Rodney District Council as the result of this offending.  A reference from your team leader dated 26 April 2010 records that you were “punctual, diligent and very much a team player, often putting his team first”.

[17]     Mr Boylan also notes your enthusiasm to undertake recommended courses in order to rehabilitate yourself and that you are highly motivated to return to your trade as a builder and to reinstate yourself as a responsible member of the community and a responsible parent.

[18]     You do not come to the Court with a clean record.  You have a number of alcohol related driving offences but you have no previous drug related offences.

[19]     I consider these personal mitigating factors do warrant a discount from the starting point of three years which I set at four months or about eleven per cent.

[20]     You are entitled to a discount for your guilty plea.  I agree with the Crown that on the basis of the guideline judgment in R v Hessell,[3]  a twenty-five per cent discount is appropriate.  In terms of Hessell that discount is to be applied after the

[3] R v Hessell [2009] NZCA 450.

discount for personal mitigating factors.   It amounts to a further discount of eight months.  The result end sentence is two years imprisonment.

Home detention

[21]     Because the final sentence is two years imprisonment, I am required to give consideration to home detention, a sentence which your counsel urges upon me and which, as I have mentioned, is recommended in the pre-sentence report.

[22]     A report providing information about the suitability of home detention has been provided and is positive.  The proposed address is 26 Paradise Road, Coopers Beach, Kaitaia which is a property, as I have already mentioned, that belongs to your sister, Mrs Mills.  The report states that Mrs Mills has organised a telephone line and phone installation which makes the address suitable for an electronically monitored sentence which of course home detention involves.

[23]     You would be the sole occupant of that property.  That factor has caused me to pause because the offending took place at your home, and also because you will be the person entirely responsible for compliance with the conditions of any home detention sentence.   However, I note that you have the support of your sister and your family and there are several family members here in Court today to show their support.  Also you have the means to travel to Kaitaia to undertake courses to assist in your rehabilitation.

[24]     At the age of 48 years, Mr Hawke, it has to be hoped that your conviction for the serious criminal offending and the period you have recently spent in custody, have brought it home to you that either you get your life together and take all steps necessary to eliminate any drug and alcohol dependency you may have, or you will be on a downward path which will detrimentally affect the rest of your life and the lives of your 15 year old daughter and your family and your friends.

[25]     I  have  given  anxious  consideration  as  to  whether  a  sentence  of  home detention is appropriate in this case.  Drug offending calls for a sentence which is deterrent both to the offender and to others who are minded to offend in a like

manner.   Home detention is a less onerous sentence than imprisonment but it is a serious sentence as is recognised by its position in the hierarchy of sentences under the Sentencing Act.   It imposes major restrictions on the offender’s liberty.   Of course it follows that if those restrictions and conditions are not strictly observed the offender faces the virtually inevitable prospect that the home detention sentence will be replaced by imprisonment.

[26]     I conclude that a sentence of home detention for a period of twelve months is appropriate in this case.  It will be subject to the conditions recommended in the pre- sentence report.  The conditions imposed on your, Mr Hawke, are:

a)       To go directly to 26 Paradise Road, Coopers Beach, Kaitaia and await the arrival of the probation officer and monitoring company representative;

b)To  reside  at  26  Paradise  Road,  Coopers  Beach,  Kaitaia  for  the duration of your home detention sentence;

c)       To abstain from the possession and consumption of alcohol and illicit drugs for the duration of your home detention sentence;

d)To undertake drug counselling to the satisfaction of your supervising probation officer;

e)       To  undertake  any  other  counselling,  to  the  satisfaction  of  your supervising probation officer;

f)        Standard post detention conditions are imposed for a period of six months following the termination of the sentence of home detention.

[27]     Mr Hawke, the sentence imposed on you is twelve months home detention. You should view the sentence as a last chance.  Should you offend again in future, the sentence and the warning I am now giving you will be before the sentencing Judge.  Your future is in your own hands.  Others will no doubt support you and you will need all the support you can get.  But you must take full responsibility for your

rehabilitation  to  ensure  that  you  are  not  in  the  future  involved  in  any criminal offending.

[28]     Would you please stand.

[29]     The sentence imposed on your Mr Hawke is twelve months home detention subject to the conditions I have enunciated.

[30]     There will be an order for destruction of drugs and paraphernalia.