R v Johnson

[2013] NZHC 64

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2012-020-1060 [2013] NZHC 64

QUEEN

v

DARREN ROBERT JOHNSON

Hearing:         5 February 2013

Counsel:         J D Lucas for Crown

A Malik for Prisoner

Sentence:       5 February 2013

SENTENCING NOTES OF THE HON JUSTICE KÓS

Introduction

[1]      Mr Johnson, given the discussion that has preceded I will start this sentencing by saying  that  the  ultimate  sentence  of  this  Court  will  be  a  sentence  of  home detention.  So I am not going to leave you up in the air on that issue. You know what the position is.  I will now sentence you formally.

[2]      You appear for sentence today on one charge laid indictably of cultivation of cannabis.1   You face other summary charges to be dealt with in the District Court at

another time.

1      Misuse of Drugs Act 1975, s 9(1).

R v JOHNSON HC NAP CRI 2012-020-1060 [5 February 2013]

[3]      I am sentencing you today because the District Court declined jurisdiction to sentence you on the indictably laid charge.

Details of offending

[4]      I will briefly summarise your offending.

[5]      The  police  had  been  investigating  you  and  your  associates,  Mr Lee, Mr Arkell and Mr Stewart, since March 2011.  They believed that you were all part of a group who were cultivating cannabis.  Between 4 February and 23 April 2012 you accompanied Mr Lee or Mr Arkell to Mitre 10 Mega store on five occasions and purchased items consistent with the cultivation of cannabis.

Cultivation at Middle Road

[6]      On 16 May 2012 search warrants were executed at your address and at the addresses of your associates.  A large cultivation operation was found at Mr Lee’s address in Middle Road, Havelock North – a rural property.

[7]      This offending involved the cultivation of 853 plants in three separate rooms:

[8]      According to the agreed summary of facts, cannabis harvested from a single mature plant can be sold conservatively for $1,000.  So theoretically the owners of these cannabis plants could have earned over $850,000 from this operation.  Having plants at three different stages of development which was the scenario here ensured a continuous supply of cannabis.

[9]      The  assistance  that  you  provided  to  your  associates  in  carrying  on  this operation gave rise to the indictably laid charge of cannabis cultivation in relation to the Middle Road property.  Your associates have also been charged with cultivation of cannabis and they are still awaiting trial in the District Court.

[10]     It is accepted by both counsel that you had a lesser role in that operation than your associates and that your sentence should reflect that.

Personal circumstances and pre-sentence report

[11]     Turning now to your personal circumstances, you are 48 years old and you live in Napier.  You have 24 previous convictions.  Most are minor offending.  You have not served any term of imprisonment before.  Most relevantly for the purposes of your sentencing today, you have two previous convictions for cannabis cultivation in 1987 and 1997. You received a fine and final warning for the 1987 conviction and a sentence of three months periodic detention for the 1997 conviction. You also have a previous conviction in 1996 for procuring drugs.

[12]     You  told  the writer of your  pre-sentence report  that  you  began  smoking cannabis at 18 years of age.   You are assessed as having “entrenched thinking” around your use of cannabis and it was suggested that you may need assistance to change the way you see cannabis.  On the other hand, you have said that you “want to have nothing to do with [cannabis] now” and that you are willing to attend any counselling or programme as directed. Your risk of reoffending is assessed as low to moderate and your risk of harm to others is assessed as low.

Purposes and principles of sentencing

[13]     I am required by the Sentencing Act 2002 to keep in mind a number of purposes and principles of sentencing.  Section 7 requires me to have regard to the need to hold you accountable for the harm done to victims of your offending, and the need to promote a sense of responsibility for, and acknowledgement of, that harm.  I need to denounce your conduct in Court today and I do so.  I need to deter you and others like you from committing the same or other similar offences in the future.  I am also required to take into account the need to assist in your respective rehabilitation and reintegration into society in due course.

[14]     In terms of s 8 of the Act, I must take into account the gravity of your offending,  including  your  degree  of  culpability.     I  must  have  regard  to  the seriousness of the types of offences committed by comparison to other types of offending, as indicated by the maximum penalty prescribed.  I must also consider the general desirability and consistency with appropriate sentences available. And then I

need   to   impose   the   least   restrictive   outcome   that   is   appropriate   to   your circumstances.

Starting point

[15]     The Court of Appeal decision in R v Terewi is the guideline authority for cannabis offending.2    The Court of Appeal divided cannabis cultivation offending into three broad categories for the purpose of sentencing.  Although only cannabis cultivation was directly addressed, those categories have been held to apply to other cannabis offending including sale of cannabis and possession for the purpose of sale.3     But it is only cultivation with which we are concerned in this sentencing today.  Both Crown counsel and counsel on your behalf agree that the Middle Road operation falls within category three due to its scale and sophistication.  The Court of Appeal defined category three as follows:4

Category 3 is the most serious class of such offending. It involves large- scale commercial growing, usually with a considerable degree of sophistication and organisation. The starting point will generally be four years or more.

[16]     Counsel for the Crown submits that an appropriate starting point for those intimately involved in the operation would be between four and five years’ imprisonment, relying on the cases of R v Hertnon,5  Vernon v R,6  Grumball v New Zealand Police,7 R v Yates8 and R v Butters.9   Counsel on your behalf submits that an appropriate starting point for them would be four years’ imprisonment, relying on the cases of R v Porter10 and R v Ingley.11

[17]     However, both counsel agree that you had a lesser role in the operation than your  counterparts.    They  agree,  also,  that  a  reduction  in  that  starting  point  is

appropriate.    The  extent  of  your  involvement  was  disputed  at  an  early  stage.

2      R v Terewi [1999] 3 NZLR 62(CA).

3      R v Gray [2008] NZCA 224.

4      R v Terewi, above n 6, at [4].

5      R v Hertnon HC Palmerston North CRI-2007-031-536, 18 December 2009.

6      Vernon v R [2010] NZCA 308.

7      Grumball v New Zealand Police HC Invercargill CRI-2010-425-1, 17 May 2010.

8      R v Yates HC Whangarei CRI-2009-029-1220, 22 April 2010.

9      R v Butters [2008] NZCA 865.

10     R v Porter [2012] NZHC 3033.

Through your counsel you maintained from the beginning that you were unaware of the size and sophistication of the operation.  You said that you only assisted in the initial establishment of a small hydroponics cannabis cultivation for personal use at the Middle Road property.  The Crown, on the other hand, disputed that that was the extent of your assistance and knowledge. An agreed summary of facts has now been prepared which limits your assistance to accompanying your associates on five occasions to the Mitre 10 Mega store to buy materials consistent with cannabis cultivation.

[18]     That in itself is inconclusive.  The details of those purchases are not before the Court.   It is not clear whether they are indicative of a large or small scale operation.   However, Ms Graham, counsel for the Crown today accepted that the Crown  is  not  in  a  position  to  prove  substantial  knowledge  on  your  part  of  a substantial operation.  So I proceed on that basis.  That is to say, that the transactions that took place at the Mitre 10 store were not themselves indicative of a substantial cannabis cultivation operation.

[19]     Counsel for the Crown submits that a starting point in the vicinity of three years’ imprisonment is appropriate to reflect your involvement in the Middle Road offending.  She does so reflecting the difficulties of proof that I have just discussed.

[20]     Your counsel submits that a starting point of two years’ imprisonment is appropriate.   Mr Malik relies on the case of R v Ingley.12    In that case the police discovered a reasonably large scale cannabis plantation in wire cages in the bush. The police found 360 plants at varying stages of maturity.  There was evidence the operation had been in place for some considerable time.   Mr Ingley had played a lesser role in the operation.   He was described as the “water boy” who had only

attended the growing area on two occasions.  The Judge adopted a starting point of three years for Mr Ingley having regard to his willingness to become involved in tending a large scale commercial crop and that he had sought financial reward for his involvement.

[21]     Other   cases   are   however   perhaps   more   comparable   to   the   limited involvement that you had in this case.  In Larking v R13 Mr Larking pleaded guilty to charges of conspiring to sell cannabis, selling cannabis and cultivating cannabis.  He assisted in a large-scale cannabis cultivation operation falling within category three in Terewi.   He assisted by agreeing to have his name on a related power account, purchasing  various  materials  for  the  operation  and  planting,  harvesting  and

transporting cannabis.  The sentencing Judge adopted a starting point of four years’ imprisonment.  On appeal, the Court of Appeal disagreed with that starting point and held that a more appropriate starting point was two years and six months’ imprisonment.  I found that case of assistance in terms of sentencing less culpable offenders where category 3 cannabis operations are at issue.

[22]     Secondly, there is R v Braun.14     There the police located a sophisticated hydroponics cannabis cultivation operation inside a house, with a carbon dioxide ventilation system.   The police located 86 plants in three different rooms and 115 heads of cannabis.  That operation fell within category three of Terewi. Mr Braun’s role, however, was to just deliver carbon dioxide cylinders to the principal offender. He had done so on eight occasions in nine months.  The sentencing Judge accepted that Mr Braun had played a lesser role in the operation.  The Judge adopted a starting point of two and a half years’ imprisonment.  That was upheld on appeal.  That is I think the most relevant case for the purpose of sentencing in this case.

[23]     Therefore, taking into account counsel’s submissions and the comparable cases I have referred to, I consider that a starting point of two years and six months’ imprisonment is appropriate for the indictably laid charge.  I do so on the basis that you had a loose understanding only of the scale of the Middle Road Operation, and an involvement limited to purchasing items for its development on five occasions.

Personal aggravating and mitigating factors

Aggravating factors

[24]     As noted above, you have two previous convictions for cannabis cultivation. They occurred a long time ago Mr Johnson.   In my view they do not warrant an uplift in your sentence.

Mitigating factors

[25]     You are also entitled to a discount for your guilty plea.  The Supreme Court in Hessell v R held that the discount that is given for a guilty plea must reflect all the circumstances  in  which  the  plea  is  entered,  including  whether  it  is  truly to  be regarded as an early or late plea and the strength of the prosecution case.15    You pleaded guilty at the first reasonable opportunity and you are entitled to the full discount of 25 per cent.

[26]     No submission is made that any further discount for remorse should be given. There is no basis on the materials before me to do so.

[27]     That therefore leaves an end sentence of two years’ imprisonment on the indictably-laid charge that I am sentencing you on today.

Home detention

[28]     Because your sentence is a short-term length of imprisonment, (i.e. two years or less) you are eligible for a sentence of home detention.16   Your father’s residence located at 34 Clarence Cox Avenue in Napier has been assessed as suitable for a sentence of home detention.   Your father consents to that course of action.   The probation office and the police have no concerns as to your sentence being served there.  I therefore have a discretion to impose home detention at that address as your sentence.

[29]    In your case, I consider that the purposes of sentencing, which include denunciation and deterrence, can be met by a sentence of home detention.17    Home detention is not a soft option.   It is an extremely annoying and unpleasant way of spending time.   But given that your previous offending was a long time ago and given that you have never been sentenced previously to prison or home detention, and that you are most of all willing to take steps to address your cannabis use, I am

prepared to grant you, as I have said, a sentence of home detention.  In doing so I

note that the Crown does not oppose the imposition of such a sentence.

[30]     I am therefore going to  sentence  you to home detention to give  you  an opportunity to stay out of prison.  On the basis of a sentence of imprisonment of two years,  the  appropriate  term  of home detention  will  be  12  months.   That  is  the maximum home detention sentence permissible by law.   Whereas parole may be sought early for imprisonment, it may not in the case of home detention.  You will serve the full 12 month sentence.

Sentence

[31]     Would you stand please.

[32]     Mr Johnson, you are sentenced to home detention for 12 months.

[33]     You are to serve that sentence at 34 Clarence Cox Avenue, Pirimi, Napier. The following conditions are to apply:

(a)      You  are  to  proceed  directly  to  34  Clarence  Cox Avenue,  Pirimi, Napier, after this sentencing.  You are there to await the arrival of a probation officer.

(b)You are to reside at 34 Clarence Cox Avenue, Pirimi, Napier, for the duration of your home detention sentence.

17     R v Iosefa [2008] NZCA 453 at [41].

(c)      You are not to possess or consumer alcohol or any illicit drugs for the duration of that sentence.

(d)You are to abide by the requirements of any electronic monitoring as directed by your probation officer.

(e)      You are to attend and complete an assessment for drug and alcohol counselling, and you are to complete any such counselling as recommended by that assessment.

(f)      You are to attend and complete an assessment for a short motivational programme, and if deemed suitable, you are to attend and complete such a programme to the satisfaction of the programme facilitator and the probation officer.

[34]     Mr Johnson you are being given a bit of a life-line here.  You have avoided prison. You are too old to go there. You are old enough to grow up now, finally, and behave yourself.  Don’t let us see you again.

[35]     Stand down.

Stephen Kós J

Solicitors:

Solicitor-General, New Zealand