R v Hema HC Gisborne CRI 2006-082-429

[2007] NZHC 1615

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2006-082-429

THE QUEEN

v

MARK HEMA

Hearing:         14 February 2007

Appearances: R J Collins for Crown

A M Simperingham for Mr Hema

Judgment:      14 February 2007

SENTENCING NOTES OF ANDREWS J

Solicitors:

Crown Solicitor, PO Box 609, Napier
Woodward Chrisp, PO Box 347, Gisborne

R V M HEMA HC GIS CRI 2006-082-429  14 February 2007

[1]      Mr Hema you have pleaded guilty under s 153A of the Summary Proceedings

Act 1957 to a charge of cultivating cannabis.

[2]      The District Court declined jurisdiction for sentencing in a decision issued by Judge  Rota  on  18  January  2007  and  you  are  therefore  before  this  Court  for sentencing.

Relevant facts

[3]      The relevant facts are that the Police visited you at your home and found 714 cannabis plants growing in separate polythene planter bags.  The bags were packed in bread crates and sitting on a raised platform.  The plants ranged in size from 2 to

30 centimetres in height and had been grown from seeds.  According to the summary of facts, the plants were in very good condition and showed no signs of disease of deterioration.

[4]      According to the Police summary of facts, when spoken to you stated that you will expect a yield of approximately one pound of cannabis heads per plant and that you expected some 150 of the plants to mature to the point of harvest.  It was also said that you did not intend to continue growing the plants at home but they were to be planted out to grow in the wild outdoors.

[5]      According to the Police summary of facts, at the lower figure they gave for the value of cannabis per pound, the value of the crop could reach $375,000.  That figure, it is suggested by the counsel, is too high and the proper value to consider is somewhere in the order of $150,000.

[6]      Judge Rota found in a hearing as to the facts that there was a commercial intent in your operation and it was for that reason that he declined jurisdiction on sentencing.

[7]      I now come to consider what sentence is appropriate.  The process I follow is to decide what sentence would be appropriate were you being convicted after a defended trial and I refer to that as the starting point.

[8]      Then I take into account any aggravating or mitigating features relating to your offending that is things that make it more or less serious and mean that the starting point should be increased or decreased.

[9]      Then I go on to consider matters that relate to you personally and thereby I determine the appropriate sentence.  In doing so I am following the procedure set by the Court of Appeal in the case of R v Taueki[1].

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

[10]     In sentencing you I have to take into account what the law has set out as the purposes of sentencing and that is in s 7 of the Sentencing Act 2002.  I have to hold you accountable, to make you responsible for what you have done and 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 the commercial scale of growing of drugs. At the same time the purpose is to help you with getting back into the community as a useful member of it.

[11]     There  are  more  general  principles  of  sentencing  set  out  in  s 8  of  the Sentencing Act that I must consider.   In your case I consider that the following apply:

a)        The gravity of your offending that is, how serious it is.

b)The general desirability of being consistent in appropriate sentencing levels.

c)        I  am  directed  to  impose  the  least  restrictive  outcome  that  is appropriate in the circumstances.

d)I take into account whether there is anything that are aggravating factors and mitigating factors.

[12]     Your counsel may have told you that s 16 of the Sentencing Act provides that I should have regard to it being desirable to keep offenders in the community as far as that is practicable.   However, the Court can and must impose a sentence of imprisonment if that is necessary in order to achieve the purposes of sentencing relevant to your case.    I understand that you acknowledge that with respect to the offence to which you have pleaded guilty I am satisfied that a sentence of imprisonment is appropriate in your case.

[13]     I turn now to look at the features of the offending.  I have considered whether the fact that this was a commercial operation is an aggravating factor.  Given that the growing of cannabis in commercial quantities is really an essence or element of this offence, I do not consider that to be a particularly aggravating factor.   I do not consider there to be any particular factors that would mitigate that as make it less serious.

[14]     So I turn now to consider the pre-sentence report prepared by the probation officer.  It tells me you are 46 years old, you have been living with your partner for the last ten years; you have four children.   You are described by your partner as a wonderful person but there is a downside of your relationship which is your cannabis use.  However, as well as being a valued member of your family and whanau you do voluntary work at the local marae.  A lot of good things are said about you in the pre-sentence report.     According to the probation officer’s report you have been in the same job at the Freezing Works for the last ten years, although according to your counsel today it is in fact 12 years.

[15]     You have said that you are a serious user of cannabis and you have been a cannabis smoker since you were 16 years old.  You said that you grew the cannabis for your own personal use so that you didn’t have to buy any.

[16]     Judge Rota, when he heard evidence on the matter, was also told that you grew the cannabis for yourself and maybe two other people.  Judge Rota did not find

that he could accept that evidence.     As he said, he did not accept that you were sharing the enterprise with others although he considered it not beyond the realms of possibility that others might have been there from time to time to lend you a hand.

[17]     You have no previous convictions over the last 16 years and prior to that you had one drug related conviction which apparently was 19 years ago. It is therefore very  sad  that  you  are  here  today  and  to  have  had  a  record  like  that  with  no convictions for 16 years and today the conviction on which you are being sentenced is one that will inevitably lead to a sentence of imprisonment.

[18]     In  court  today  counsel  for  the  Crown  submitted,  appropriately,  that  the sentence for you should sit within the second band of offending as described by the Court of Appeal in the decision of R v Terewi[2] and I am sure that your lawyer has talked to you about that decision.    Counsel for the Crown also mentioned that you made your guilty plea at a very early stage and that the charges against you did not go to the stage of a depositions hearing and accordingly you have saved the Crown

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

and the community the expense of going through a trial, and for that you will be given credit.

[19]     On your behalf Mr Simperingham also submitted that your offending fitted within the middle band of the Terewi guideline which would lead to a sentence of between two and four years imprisonment.  He noted the matters that I have referred to from the probation officer’s report, in particular your strong family relationship, the volunteer work you have done, your very good employment record and the absence of any criminal convictions over the last 16 years.

[20]     Mr Simperingham also referred me to relevant sentences in cases similar to yours.  In particular he referred me to four cases in which sentences of between 2 years and 3½ year’s imprisonment were imposed.

[21]     Having given consideration to the matter I accept that the plants, albeit in large  numbers  that  were  found  at  your  house,  were  at  a  very  early  stage  of

development.  Further, there was no suggestion, and this is accepted by the Crown, that the plants were to be grown indoors so as to ensure a higher proportion of them reached maturity to the point of harvest.  Accordingly, your offending should not be placed at the upper end of the middle band of Terewi.  Notwithstanding that, there were a large number of plants and as Judge Rota held, it was your intention to have them grow to maturity albeit after being planted out in the wild.    I therefore place your offending in the middle band of Terewi, that is in the band where the sentence is between 2 and 4 years imprisonment and I fix the appropriate starting point at 3 years.

[22]     With respect to your personal circumstances I note in particular your early guilty plea.  As I told you before you will be given credit for that and the credit will be substantial given your early acknowledgement of it.

[23]     I also take account  of  your employment  record,  the  absence  of  criminal convictions over a long period and your strong family relationship.  In the end result I propose to reduce your sentence by 12 months so that you are therefore sentenced to two years imprisonment.

[24]     I note that that does not therefore entitle you to apply for home detention as your counsel sought.   I advise you that had I been inclined to impose a sentence of less than two years imprisonment, I would not have given you leave to apply for home detention.   The reason for this is that quite clearly, your home was the place where you had installed the plants, where you had established the nursery where they were to be grown to the stage where they could be planted out.   In those circumstances I do not consider it appropriate that home detention be granted.

[25]     Accordingly, the sentence is two years imprisonment.

[26]     I also order that you should undertake drug counselling in the hope that in the course of your imprisonment your addiction to cannabis can be addressed.

[27]     Stand down please.

Andrews  J