R v Hewison

[2013] NZHC 3386

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-063-01767 [2013] NZHC 3386

THE QUEEN

v

IAN LEE HEWISON

Hearing:                   16 December 2013

Appearances:           S-L Tapsell for Crown

J P Temm for Prisoner

Judgment:                16 December 2013

SENTENCING REMARKS OF LANG J

R v HEWISON [2013] NZHC 3386 [16 December 2013]

[1]      Mr Hewison, you appear in this Court for sentence having pleaded guilty in the District Court to charges of cultivating cannabis and being in possession of equipment and material for use in the commission of the cultivation of cannabis. The District Court declined jurisdiction to sentence you, and remanded you to this Court for sentence.

[2]      The maximum sentences are seven  years imprisonment in relation to the charge of cultivating cannabis, and five years imprisonment in relation to the charge of being in possession of equipment and materials.

The facts

[3]      The charges against you arise out of the fact that the police executed a search warrant at your home address in Rotorua on 30 May 2013.  When the police arrived at the address, they found the property contained two dwellings.   You and your family were living in the front dwelling, and the rear dwelling was vacant.  When the police  searched  the  rear  dwelling,  they found  a  large-scale  cannabis  cultivation operation in progress in one of the bedrooms.

[4]      The growing method being used is colloquially described as being “screen of green”:  This involves an espalier system by which the leaves of cannabis plants are tethered to a trellis system.  This means that the stalks of the plants do not have to support the weight of the leaves.  It thereby enables the plants to produce more head material, and hence to provide a more valuable crop.

[5]      The  summary  of  facts  records  that  the  police  found  21  cannabis  plants growing in eight large planter pots.   These were well manicured, and had been manipulated so as to grow through and across the espalier netting to produce a dense mat of cannabis head and leaf material.  You initially disputed the number of plants the police found.  You contend that only 18 cannabis plants were being grown on the property.  For present purposes, however, the precise number is not material.

[6]      All of the plants were being grown under a system of sophisticated lighting and shades.  Lighting units were controlled by electrical timers to create an optimal growing environment.   The grow room also had fan units and vents, as well as

ducting connected to a large carbon filter.  The filter had obviously been installed to disguise the smell of cannabis growing in the property.

[7]      The pots were all nutrient fed through a sophisticated watering system that had been set up in a neighbouring bedroom.  The nutrient was piped into the grow room through aqua pumps.  This feeding system was used so that the plants received the exact nutrients required for maximum growth.

[8]      The issue of likely yield of the growing operation was also a matter of dispute prior to this hearing.   It has now been agreed, however, that the operation that you set up had the ability, because it was indoors and environment-controlled, to produce three cycles of cannabis per year.   The Crown contends that this would enable the operation, provided it contained approximately the same number of plants throughout, to produce approximately $70,000 worth of cannabis per growing cycle. The growing cycle is based on 17 weeks from planting to harvest.

[9]      The fact that the operation had been in place for some time is demonstrated by several factors.   First, the police found various quantities of cannabis leaf and head material stored in the property.   Three plastic bags contained 578 grams of cannabis leaf, 140 grams of cannabis leaf and 56 grams of cannabis head material respectively.   The police also  found two  large  plastic sacks  containing stripped cannabis stalks.  In the freezer, the police found three further bags of cannabis leaf totalling 1.23 kilograms.

[10]     In addition, the police have analysed the electricity used at the address.  The address was not supplied with gas, and would therefore normally only use approximately seven kilowatt hours of electricity per day.  A schedule produced in evidence shows that the property consumed significantly more than that during the

12 month period leading up to the police search.   During the one month period immediately prior to the police search, the property consumed 48 kilowatt hours of electricity.  This demonstrates that the growing operation had been in place for some time prior to the police search.

[11]     Through  your  counsel,  you  submit  that  the  operation  had  not  produced cannabis at the level predicted by the police  You say that the crop the police found was the product of an initial cultivation of mother plants from seed. You say this had taken some time to mature, and had resulted in a considerable degree of plant failure. From the initial mother plants, you say that a first series of clones were taken and grown.  This crop failed significantly, and the crop had to be repeated.  You say that the crop the police found on 30 May 2013 was the first full productive crop of clones that you had ever been able to achieve.

[12]     Your explanation may or may not be correct.  For present purposes, however, that fact does not matter.  What matters is that, by 30 May 2013, you had put in place a sophisticated cannabis growing operation that had the potential to produce significant quantities of cannabis in the future.   That is the degree of culpability against which the sentence to be imposed on you must be assessed.

Sentencing Act 2002

[13]     In any case involving commercial growing of cannabis, issues of deterrence and denunciation are to the forefront.   The courts routinely select starting points involving sentences of imprisonment to give effect to these sentencing principles. Deterrent sentences are the only method by which the courts have contribute to the battle against the commercial growing of controlled drugs.

Starting point

[14]     I need first to select a starting point that reflects your overall culpability.  In this context, I put to one side the charge relating to being in possession of equipment. The culpability inherent in that charge is very much subsumed in your culpability in relation to the charge of cultivating cannabis.

[15]     Counsel agree that the starting point for the sentence to be imposed on you needs to be selected having regard to the guideline judgment of the Court of Appeal

in  R  v Terewi.1      In  that  case the Court  of Appeal  identified  starting points  for

1           R v Terewi [1999] 3 NZLR 62

offending involving the commercial cultivation of cannabis.  In moderate offending where there is a limited number of plants and a limited degree of commerciality, a starting point of between two and four years imprisonment will be selected.  Both counsel agree that your offending falls within this category.

[16]     I consider one important factor for present purposes to be that the police found no overt indicia of commercial cultivation of cannabis when they searched your premises.  The cannabis leaf and head material that they found had not been packaged into ounce bags, or other bags or containers consistent with being prepared for sale.  The police did not find any quantities of cash, nor did they find scales or tick lists as are commonly found in commercial drug cultivation operations.

[17]     The sophistication of the systems that you set up and the quantity of cannabis that that system could produce persuades me that there must have been an element of commerciality to your offending.   It is possible that this had not yet been realised because of earlier crop failures.  Nevertheless, even though you say you are addicted to cannabis, I find it difficult to believe that the system could have been set up solely to provide cannabis for your own use.  I consider, however, that any sale of cannabis in which you had engaged, or intended to engage in, was probably to friends and associates in your immediate circle.

[18]     The Crown submits that a starting point of three to three and a half years imprisonment is appropriate having regard to the sophisticated nature of your operation.  Your counsel contends that a starting point of between two and a half and three years imprisonment is appropriate, having regard to the lack of commerciality.

[19]     The Crown has referred me to three cases in which offenders were sentenced for cultivating cannabis at a level not entirely dissimilar to your operation.2   Overall, however, I consider those cases were slightly more serious because of the numbers of plants involved and a greater degree of commerciality.   Had there been more indication of commerciality in your operation, the starting point would undoubtedly

have been within the range suggested by the Crown.  I propose, however, to take a

2      R v Delamore HC Auckland CRI-2010-004-1934, 5 October 2010; R v Cook HC Tauranga CRI-

2008-087-320, 10  July  2008;  R  v  Matthews  HC  Palmerston North  CRI-2009-031-592, 17
February 2010.

starting point of two years nine months imprisonment to reflect the fact that I am satisfied that the bulk of the cannabis produced was likely to have been for your own use.

Aggravating factors

[20]     I now need to consider the extent to which, if at all, I should increase the sentence to reflect previous relevant convictions.  As you frankly admit, you have had a longstanding involvement with cannabis.  You began using cannabis in your early teens, and by 13 or 14 years of age you were using cannabis on a virtually daily basis.  This is reflected in several convictions for cannabis-related offending.  They commenced in December 1987 with a conviction for cultivating cannabis.  On that occasion you were fined $400.  Subsequently, however, you were sentenced to six months imprisonment in March 1989 on a charge of being in possession of cannabis for supply.   You also have several other convictions for being in possession of cannabis or cannabis oil.   You received sentences of periodic detention on those charges.  In August 1992, however, you were sentenced to one month and two weeks imprisonment on a charge of being in possession of cannabis oil.

[21]     Your  counsel  emphasises  that  it  is  significant  that  you  have  not  been convicted  of  any  drug-related  offending  since  1992.     That  is  a  period  of approximately 20 years, and he submits that this should reduce any uplift to be applied in respect of previous offending.   I agree with this submission so far as it goes, but there can be no doubt that you have remained involved with cannabis during the period since 1992.

[22]     Given the fact, however, that you have not been convicted of any cannabis- related offending since 1992, the uplift that I apply will be modest.  I apply an uplift of three months to reflect this factor.  This leaves me with an end sentence of three years imprisonment before taking into account mitigating factors that are personal to you.

Mitigating factors

[23]     You appear for sentence at the age of 45 years.   The pre-sentence report, together with other material your counsel has provided me, paints a picture of a person who was very much left in the lurch by the death of your mother when you were just eight years of age.  You then had a difficult relationship with your father, who also failed to cope with the loss of his wife.  It is clear from the material before me that you have taken to cannabis as a means of alleviating stress factors in your life.

[24]    In recent years, you have developed what your counsel describes as an alternative lifestyle.   You have become an adherent of principles known as “Earthship” principles.  These have their origin in an American-based concept where groups of like minded individuals work together to create an environmentally renewable and sensitive living structure that harnesses solar energy, natural rainfall and renewable energy.

[25]     Your counsel points out that your lifestyle is not that of a commercial drug dealer.   Rather,  you had completed the renovation of the two dwellings on the property where the police searched to the point where you proposed to let them out. You then proposed to begin living in a house bus whilst you developed a further property that you own in Ohakune.

[26]     I consider that I can take into account two factors as mitigating the starting point I have selected.  The first of these is that I accept you have undertaken genuine rehabilitative efforts since your arrest.   This is demonstrated by the fact that on

7 June  2013,  just  one  week  after  you  were  arrested,  you  began  one  on  one counselling with an alcohol and drug counselling service in Rotorua.   The report from the counsellor advises me that you have attended and completed 11 one on one counselling and education sessions, and that you have done extremely well.   You also voluntarily provided a sample of your urine to a medical centre on 10 December

2013, and this confirmed that your urine was free of any trace of any controlled drug.

[27]     The material before me also makes it clear that  you have other positive qualities that you have put to good use within the community.   I have received

numerous references from people associated with you, all of whom attest to these qualities and the fact that you have much to contribute to the community.

[28]     In any case involving drug offending, however, personal circumstances can only be given limited effect.  Nevertheless, it would be wrong in principle for the Court not to recognise the fact that you have undertaken rehabilitative efforts and that you are at this point committed to continue with those efforts.   I propose to reduce the starting point by three months to reflect those factors.

[29]     It is also necessary for me to have regard to your guilty pleas.  You entered these on 20 June 2013, just three weeks after you first appeared on the present charges.  I take that to be the earliest possible opportunity at which you could have entered guilty pleas.   For that reason, I propose to provide you with a discount of around 25 per cent, or eight months, to reflect that factor.

Forfeiture

[30]     This leaves me with an end sentence of two years one month imprisonment before taking into account the final issue I need to determine.   This relates to an application by the Crown for an order that the house property at which the offending occurred forfeited to the Crown.

[31]     The Court has the power under s 142N(1) of the Sentencing Act 2002 to make a forfeiture order in respect of instruments of crime.   In this context both counsel agree that the house property where the cultivation of cannabis occurred is an “instrument of crime” for the purposes of the Act.   In considering whether I should make a forfeiture order in respect of the property, I am required to have regard to s 142N(2) of the Act, which provides:

142N Instrument forfeiture orders

...

(2)     In considering whether or not to make an instrument forfeiture order under subsection (1) in respect of particular property, the court may have regard to—

(a)     any matter raised in an application for relief under section 142J;

and

(b)     the use that is ordinarily made, or was intended to be made, of the instrument of crime; and

(c)     any undue hardship that is reasonably likely to be caused to any person by the operation of such an order; and

(d)     the nature and extent of the offender's interest in the instrument of crime (if any), and the nature and extent of any other person's interest in it (if any); and

(e)     in addition to the matters referred to in section 77(1) of the Criminal Proceeds (Recovery) Act 2009, any other matter relating to the nature and circumstances of the qualifying instrument forfeiture offence or the offender, including the gravity of the qualifying instrument forfeiture offence.

[32]     In the present case, several factors stand out.   The first is that the second dwelling was substantially used for the purposes of growing cannabis.   The other dwelling, on the other hand, was used only as a place of residence for you and your family. The property was therefore partially used for the offending.

[33]     Any forfeiture order would obviously have an effect on you, although in the circumstances of the present case that would not be sufficient to prevent the making of a forfeiture order. The making of an order will also have an effect on your partner. Although she is not registered as the owner of the property, you have been in a long term relationship with her and she may well have an interest in respect of it.  She has decided not to apply for relief against forfeiture.  Nevertheless, the fact that she will lose any interest she may have had in the property is a factor I can take into account.

[34]     On 1 April 2011 the property had a value, obtained from Quotable Value, of approximately $300,000.  It has a mortgage registered in favour of a bank, however, that secures a sum in excess of that figure.  Although the indebtedness to the bank is also secured by a mortgage over the Ohakune property, it is clear that the sale of the Rotorua property will result in all of the sale proceeds being repaid to the bank.  In essence, therefore, you will not suffer the loss of any equity in the property as is often the case when a forfeiture order is made.  I record that you do not suggest that any forfeiture order should reduce the bank’s right to be repaid first from the sale of the Rotorua property.

[35]     Your counsel does not dispute the fact that a forfeiture order needs to be made.   I am satisfied that it does need to be made because of the fact that the property was substantially devoted to the cultivation of cannabis, and the cannabis growing operation was of a relatively sophisticated nature.   Section 10B of the Sentencing Act  2002  requires  the  Court  to  take  into  account  the  effect  of  any forfeiture order when imposing sentence.  I therefore make a forfeiture order under s 142N(1).

End sentence

[36]     In cases where offenders have lost significant equity in forfeited property, the courts have sometimes substituted a sentence of home detention for a lengthy sentence of imprisonment.3   In other cases, the courts have convicted and discharged

the offender because of the value of the property that has been forfeited.4

[37]     In the present case those considerations do not arise, because you will not be losing any equity in the property.   Nevertheless, your counsel points out that you acquired the property in 2005, and have spent significant time and effort in developing it.  You intended to create equity in the property through renting it out whilst you were living in Ohakune.  That past effort and future opportunity will now be lost.  In addition, the property will no longer be available for occupation by your family should the need for that have arisen.

[38]     I propose to reduce your sentence by approximately 15 per cent, or four months, to reflect the forfeiture order I have made.   This leaves me with an end sentence of one year nine months imprisonment.

Home detention

[39]     Because the end sentence is less than two years imprisonment, I need to consider whether a sentence of home detention should be imposed. The pre-sentence report points out that although you have previous convictions for cannabis-related

offending, you have never been subject to a sentence of home detention, coupled

3      R v MacPherson HC Auckland CRI-2009-090-11944, 16 September 2011.

4      R v Brazendale HC Auckland CRI-2009-092-17133, 20 August 2010.

with conditions designed to assist in your rehabilitation.  It therefore recommends a sentence of home detention.

[40]     In  any  case  where  significant  drug  offending  occurs  within  a  home environment, the courts are cautious about imposing a sentence of home detention. For one thing, it could send out the wrong message to the community regarding the gravity  of  such  offending.    Secondly,  the  courts  are  doubly  cautious  when  the offender has a history of cannabis-related offending coupled with significant drug use.  A sentence of home detention may in those circumstances provide an incentive or temptation to the offender to recommence using cannabis or other drugs during the term of the sentence.

[41]     In the present case, however, I consider that the Court would be justified in imposing a sentence of home detention.  First, the sentence will not be served at the address at which the offending occurred.  Instead, it will be at the address of your partner and another friend.   They have undertaken in the material put before the Court to assist you in your rehabilitation.  Secondly, you have already begun taking steps to rehabilitate yourself, and I am satisfied that these are genuine.   Thirdly, I bear in mind the fact that you remain committed to your ten year old son who needs to have ready access to his father at this stage in his life.

[42]     I propose, however, to impose conditions that ensure that you remain drug free during the term of your sentence.   You need to understand that if you fail to adhere to, or breach, any of these conditions, the Court would expect the Corrections Department of Corrections to immediately apply for an order cancelling the sentence of home detention and replacing it with a sentence of imprisonment.

Sentence

[43]     On the charge of cultivating cannabis you are sentenced to 11 months home detention.  On the charge of being in possession of equipment and materials, you are sentenced to a concurrent sentence of three months home detention. Those sentences are imposed subject to the following special conditions:

(a)      You are to reside at the address set out in the pre-sentence report for the duration of the sentence.

(b)You are not to possess or consume alcohol and/or illicit drugs for the duration of the sentence.

(c)      You are to provide the probation service not later than the tenth day of each month with a certificate from a registered medical practitioner containing the results of a urine sample to be voluntarily supplied to the medical practitioner by you at your expense.

(d)You are to undertake alcohol and other drug assessment as directed by your probation officer and programme provider, and you are to complete any recommended  counselling or treatment  for abuse of alcohol and other drugs to the satisfaction of those persons.

(e)      You are to attend and complete such counselling, programme and/or treatment to address identified offending behaviour as may be directed by your probation officer and to the satisfaction of your probation officer and programme provider.

(f)      You   are   to   undertake   and   complete   any   other   rehabilitative programme,   counselling,   treatment   and   maintenance   follow-up

programme as directed by the probation officer.

Lang J

Solicitors:

Crown Solicitor, Rotorua
Counsel:

J P Temm