R v Kingi HC Napier CRI-2011-081-193

[2011] NZHC 1156

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2011-081-193

THE QUEEN

v

BROWN MARSH KINGI

Hearing:         28 September 2011

Counsel:         J Lucas for the Crown

R D Stone for Mr Kingi

Judgment:      28 September 2011

SENTENCE OF WOODHOUSE J

Solicitors:

Mr J Lucas, Elvidge & Partners, Office of the Crown Solicitor, Napier

Mr R D Stone, Souness Stone Law Partnership, Solicitors, Hastings

R V KINGI HC NAP CRI-2011-081-193 28 September 2011

[1]      Mr Kingi, you may remain seated while I explain the sentence I am going to impose.  I need, obviously, to explain it to you but I also need to explain it to the community as a whole.

[2]      I want to make clear at the outset that what I intend to do is impose a sentence of home detention, for reasons that I will explain, together with a sentence of community work.

[3]      You appear for sentence, with sentence having been transferred from the District Court, for cultivation of cannabis, possession of cannabis seeds and possession of three methamphetamine pipes.  The most serious of these offences is cultivation of cannabis and the maximum penalty for that is seven years imprisonment. And that maximum penalty is something which, by itself, I think you should reflect on.

Background facts

[4]      A brief summary of the background facts is that on 18 March 2011 you were found to be cultivating a total of 98 cannabis plants at your home near Waipawa. There were 27 plants growing outside and 71 clones were being cultivated in a grow room inside the house.  You were also found in possession of approximately 20,000 cannabis seeds with that calculated simply by weighing.

[5]      When spoken to by Police you did refer to yourself as a commercial grower, and I will come back to the relevance of that.

[6]      Approximately a month later Police found the three methamphetamine pipes.

Personal circumstances

[7]      In brief outline, your personal circumstances are as follows. You are 40 years old.  You were born in Kawakawa and, it would appear and I infer, in a supportive family.  For whatever reason – and not arising out of any difficulties as such with

your family – you over the years have drifted away from them and from the support that would have been readily available from them.

[8]      You described yourself to the probation officer as a “black sheep”. And there

was reference in the pre-sentence report to your being something of a lost soul.

[9]      You do have relevant previous convictions.  In 2001 you were convicted for possession of cannabis plant.   It was obviously a relatively minor offence because the penalty was a fine of $250.   In 2003 you were convicted for cultivation of cannabis and possession for supply of cannabis plant.  There was a sentence of two years imprisonment – and that is indicative of the level of the offending then – but with leave granted to apply for home detention.

[10]     There are further relevant matters in respect of your personal circumstances and indications of changes that may have occurred more recently – and I will come back to those in a moment.

Starting point

[11]     I need to focus on a starting point for your offending.

[12]     There is no dispute between Mr Stone, on your behalf, and Mr Lucas, on behalf of the Crown, that your offending comes within what is called category 2 of a decision of the Court of Appeal in a case called Terewi.[1]     The Court of Appeal describes this category as involving small scale cultivation of cannabis plants for a commercial purpose.  The Court said that the starting point should be between two to four years imprisonment, but also indicated that a lower starting point may be taken if sales are infrequent and of a limited extent.

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

[13]     Mr  Lucas  submitted  that  your  offending  comes  between  the  middle  and towards the top of category 2 and there is a submission that the starting point should be between three to four years imprisonment.  And this is the starting point, before

adjustments are made for other matters I will come to.

[14]     Mr Stone has submitted that your offending – the offence itself – comes at or towards the bottom of this category 2.

[15]     What I need to assess, as best as can be done, is the level of commerciality in respect of what is acknowledged to be a relatively low level commercial operation. There is no evidence of sales.  In an interview you did say you were a commercial grower so you have acknowledged that you did make some sales, but you also said you were not benefiting financially.   There does not appear to be any wealth or significant evidence of any substantial money flowing to you from this.   There is evidence from a police officer – which is in numbers of respect not challenged – indicating revenues that might be generated.  That is of assistance up to a point.  My assessment, having seen the photographs and having regard to other evidence, is that the operation cannot be described as being particularly sophisticated.

[16]     What is also of importance is that it is not in issue that you are a regular user of cannabis and, it seems, probably a heavy user of cannabis.  The relevance of that is that although there may have been supply or sales of cannabis to others, obviously it  seems  a  portion  of  it  –  and  perhaps  a  substantial  portion  –  may have  been consumed by you.  I do not need to make precise calculations in that regard.

[17]     The overall assessment is that it is low level commerciality coupled with production for personal consumption.

[18]     I have been referred to a number of other cases by way of comparison and I have also looked at some others.  Simply really as a matter of record I will note the names of these cases but I do not intend to discuss them to any great extent – I will simply note the names of the defendants:   White;[2]  Bhana;[3]  Morrison;[4]  Newport;[5]

Kennedy[6] (referred to by the Crown although in that case Police found 10 kilograms

of cannabis head and notwithstanding that the starting point indication was at the lower level of category 3); Harris[7] (another case referred to by the Crown where, in

addition to 86 plants, there was 1 kilogram of cannabis head with a starting point of three years); Scott[8]  (12 plants were found but also 2 kilograms for supply with a starting point of three years); Reddy;[9] and Salisbury.[10]

[2] R v White HC Christchurch, CRI-2010-009-7016, 23 September 2010, Panckhurst J.

[3] R v Bhana HC Whangarei, CRI-2008-027-3050, 22 July 2009, Allan J.

[4] R v Morrison HC Auckland, CRI-2009-004-6524, 28 July 2009, Wylie J.

[5] R v Newport HC Tauranga, CRI-2009-087-413, 28 September 2009, Woodhouse J.

[6] R v Kennedy [2011] NZCA 109.

[7] R v Harris [2009] NZCA 471.

[8] R v Scott CA170/05, 9 November 2005.

[9] R v Reddy HC Whangarei, CRI-2010-088-3722, 12 May 2011, Woodhouse J.

[10] R v Salisbury HC Napier, CRI-2010-020-2856, 13 December 2010, MacKenzie J.

[19]     Mr Kingi, taking account of the matters that I have referred to, and all of the other information that is available to me on the file, and perhaps particularly because of the evidence of fairly heavy personal use which bears on the degree of commerciality, I consider that the starting point here should in fact be two years imprisonment, which is at the bottom of category 2.

[20]     There does need to be an uplift to that starting point.  Consideration has to be given to an uplift because of the possession, in particular, of the seeds.  I think to a considerable extent that is an integral part of the cultivation of cannabis.  There are also the methamphetamine pipes.  I also have to consider an uplift in respect of your previous offences, and I have noted what they are.  I also note, although it follows from what I have earlier said, that the most recent offence was somewhat over 8 years ago.  I consider the uplift in respect of the matters I have referred to should be in the region of six months.

[21]     I then need to consider any other aggravating matters and any matters by way of mitigation.  There are no other matters which should further increase the sentence. There are a number of matters which go to mitigation. The most significant, in terms of the amount of the discount, is that you did plead guilty at a very early stage. There is some difference between the Crown and Mr Stone, on your behalf, as to whether that should be at the level of 25% or a little less, but I do not think it is necessary to discuss the details of that.

[22]     You  were  co-operative  with  Police.   You  have  undertaken  what  may  be described in broad terms as efforts at rehabilitation.   You have said you want to distance yourself from associates who have, clearly enough, had negative influences on you.  Although, at the end of the day Mr Kingi, it is you who has to take the

positive steps to avoid getting into these difficulties in the future.

[23]     You do have a supportive family and I consider this is important.  It is not in issue that, having wandered away from your family and, perhaps with a degree of wanderlust, you have returned to a supportive family.  In fact, whilst you have been on bail I am advised that you have been living with your parents.  It is difficult to make an assessment of the overall significance of this but I consider it has significance, and notwithstanding the fact that you are now aged 40.  But you are a

40 year old who is not married and who does not have children.  I also note that your mother is in Court today in support.

[24]     There is a practical indication of the fact that this support is available and that you are availing yourself of it.  This comes from the pre-sentence report assessment for home detention.  Your parents have a house in Ohakune which they are prepared to make available to you for the purposes of home detention.  And there is a positive home detention report.

[25]     On the question of a reduction or discount in respect of the matters I referred to I consider that a reduction of around 10 months is justified.  The most significant portion of that reduction is a reduction for the guilty plea.  On the basis of the figures that I have mentioned the result would be 20 months imprisonment.   I have not endeavoured to be precise about these matters.  The starting point might have been a little higher; there could have been adjustments to reductions; there could have been adjustments  to  increases;  but  overall  the  period  of  imprisonment  is  around  20 months.

Home detention

[26]     At around 20 months – and certainly below two years – I am empowered by the relevant legislation to consider home detention.  The Court of Appeal has said that for offending from a person’s home in many cases home detention will not be appropriate.  But the Court of Appeal has not said that it can never happen, and it certainly has happened in numbers of cases and certainly in cases involving cultivation of cannabis.

[27]     As I have indicated, the proposal is that if I accept that home detention is appropriate it will be to the home in Ohakune, which is not the home from which you were offending.   It will be a property away from your associates in southern Hawkes Bay.  It does not prevent them coming to Ohakune, but it will be away from them.  It is of reasonable importance that the property, I am advised, is not far from the Ohakune police station.

[28]     Having  regard  to  all  of  the  matters  I have  referred  to  I consider  that  a sentence of home detention is appropriate.   I also consider – and it is a matter I discussed with Mr Stone – that it is appropriate to also impose a sentence of community work, and I intend to impose a sentence of community work having regard to all the relevant purposes and principles of sentencing contained in the Sentencing Act.

Final sentence

[29]     Mr Kingi, if you could please stand at this point.

[30]     For  the  offence  of  cultivation  of  cannabis  you  are  sentenced  to  home detention for nine months.

[31]     I impose the following special conditions, which are contained in the pre- sentence report:

(a)      You are to reside at 50 Burns Street, Ohakune and not to move from that  address  without  the  prior  written  approval  of  the  probation officer.

(b)You are to abstain from the consumption and possession of alcohol and illicit drugs for the duration of the home detention sentence.

(c)      You are to undertake and complete an addiction programme to the satisfaction of the probation officer and the programme provider.  The details of the programme will be decided by your probation officer.

[32]     The sentence will commence tomorrow, 29 September 2011, at 1:00 pm.  So that you are to be at the address no later than 1:00 pm tomorrow.

[33]     I also impose a sentence of community work of 100 hours with leave granted to the probation officer to convert up to 20% of that to training of an appropriate sort.

[34]     There  is  an  order  for  destruction  of the methamphetamine pipes  and  all cannabis related material.

[35]     You should now stand down.

ADDENUM

[36]     What follows was not said in open Court.

[37]     I  failed  to  impose  sentences  for  possession  of  the  cannabis  seed  and possession of the pipes.  I referred to this omission in a minute to counsel for Mr Kingi and the Crown.   I advised counsel that I would have imposed a concurrent sentence of three months home detention for possession of the cannabis seed and one month home detention for possession of the pipes and that I had not intended also to order community work in respect of these two offences.  I enquired whether either counsel had any objection to my recording these sentences in an addendum without requiring Mr Kingi to return to Court for these sentences to be announced in open Court.  Both counsel advised that they had no objection to this course.  Accordingly, I record the formal sentences in the following paragraphs.

[38]     For the offence of possession of cannabis seed Mr Kingi is sentenced to home detention for three months.

[39]     For  the  offence  of  possession  of  methamphetamine  pipes  Mr  King  is sentenced to home detention for one month.

[40]     All sentences are to be served concurrently.

[41]     For the avoidance of doubt I record that there is no sentence of community

work for the possession of the cannabis seed and the possession of the pipes.

Peter Woodhouse J