R v Knowsley HC Auckland CRI 2010-057-1249

[2010] NZHC 1665

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-057-1249

THE QUEEN

v

DAVID KNOWSLEY

Hearing:         14 September 2010

Appearances: Mr N Speir for Crown

Mr H Leabourn for Prisoner

Sentence:       14 September 2010

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Auckland

Mr H Leabourn, Auckland

R V KNOWSLEY HC AK CRI-2010-057-1249 14 September 2010

[1]      Mr Knowsley, you appear for sentence today having pleaded guilty in the District Court to a charge of cultivating cannabis and a charge of being in possession of equipment for the purpose of cultivating cannabis.  The maximum sentence on the charge of cultivating cannabis is one of eight years imprisonment.  The maximum sentence on the other charge is one of five years imprisonment.

[2]      The District Court declined jurisdiction to sentence you and committed you to this Court for sentence.

The facts

[3]      The facts that give rise to your offending are set out in a summary of facts with which you take no issue.  They flow from the execution of a search warrant at your home address in Waiuku.  When the police searched the address, they found an indoor cannabis growing operation in which a total of 163 cannabis plants were being grown in three separate growing tents in the garage at your property.

[4]      This was a relatively sophisticated operation.   It involved the placing of plants and seedlings in pots within tent structures.   Lighting was then provided, together with fans and ventilation equipment.   Fertilisers and other accessories to cultivation were also present.

[5]      The operation included a nursery area and quite clearly you were involved in the rotational growing of cannabis plants.  This is demonstrated by the fact that the police found signs of previous crops at your premises.  These included stalks and the root systems of at least 57 other cannabis plants.

[6]      In the growing room the police also found a calendar which indicated that you were involved in growing overlapping crops of cannabis on an eight week cycle. Two  of  those  had  already been  completed.    Only a  relatively small  amount  of harvested cannabis head was found. This means that you had disposed of, either by consuming or distributing, the remainder of the crops that you had harvested.

[7]      When the police carried out a fingerprint examination, they found two of your fingerprints on the equipment that had been used in the growing operation. When they searched your house, the police located two sets of scales with cannabis plant residue on them and a quantity of plastic bags of the type commonly used to package cannabis for sale.  When the police spoke to you, you frankly admitted that the  cannabis  operation  was  yours.    You  acknowledged  that  responsibility  by pleading guilty at the first substantive call of the proceedings in the District Court.

Sentencing Act 2002

[8]      In sentencing you I have to have regard to the provisions of the Sentencing Act 2002.  As you must know by now, in any case involving cultivation of cannabis, issues of deterrence and denunciation are to the forefront.   People who engage in even moderately sophisticated cannabis growing operations must know that a sentence of imprisonment is virtually inevitable.  You, no doubt, know that because you have already served a sentence of two years imprisonment for cultivating cannabis back in 2004.

[9]      The real issue in your case is to select a sentence that is broadly consistent with those imposed in other similar cases, and also to have regard to the need for your rehabilitation and reintegration into the community.

Starting point

[10]     The process that I need to undergo is to select a starting point for the sentence that is to be imposed upon you.  That is the sentence that would be imposed in the event that you had proceeded to trial and without taking into account any of the factors, either mitigating or aggravating, that apply to you personally.

[11]     In this case both counsel agree that the governing Court of Appeal authority is a case called R v Terewi [1999] 3 NZLR 62. In that case the Court identified a starting point of two to four years imprisonment for people who are engaged in cultivation of cannabis of modest proportions. I have no doubt that you fit within that area. Your operation can properly be described as relatively sophisticated. I

take on board the submission from your counsel that the growing tents were items that could be purchased ready made from a retail outlet.  Having said that, they are reasonably sophisticated in themselves and the heating, lighting and ventilation systems that you installed certainly added to the sophistication of the undertaking.

[12]     One of the factors that is of concern here is the fact that you were involved in overlapping growing cycles.  This means that you had a constant stream of cannabis becoming ready for harvesting.  You, no doubt, used a considerable amount of that cannabis yourself because you have a significant cannabis addiction.   I have no doubt, though, that you supplied some of the cannabis to others for commercial gain having regard to your finances.  That is the only way in which you could realistically have paid for the establishment of this operation and then supported it on an ongoing basis.  The existence of the scales with cannabis residue on it also suggest that you were measuring out cannabis and the only reason that you were doing that was for the purposes of sale in recognised quantities.

[13]     So you are a person who grows cannabis, both for your own use and also for supply to others on a commercial scale.  The commerciality of your operation is not, however, such that it has led to appreciable gains in your lifestyle or the trappings of wealth.

[14]     Counsel for the Crown has referred me to two authorities in which offenders who were apprehended in possession of a similar number of plants to those which were found in your possession had a starting point of three and a half years imprisonment applied by the sentencing Judges:  R v Edmonds CA756/2008 [2009] NZCA 152, 29 April 2009; R v Collings CA571/07 [2008] NZCA 30, 26 February

2008.   For myself, I have regard to a case in which I sentenced offenders in the Tauranga Registry who had been found in possession of a much more sophisticated cannabis growing operation than yours:  R v Bearsley & Moss HC Tauranga CIV-

2009-070-4244, 19 June 2009.  It involved the sinking of a container into a hillside and the construction of a shed on top of the container to conceal its presence.  They were found with 170 cannabis plants and like you, had been involved in a rotating crop operation.   In that case I selected a starting point of three years six months

imprisonment.    I take  your  offending  to  be  below  the  culpability in  that  case, although not by any significant amount.

[15]     Taking all those factors into consideration, I take an overall starting point of three years three months imprisonment in respect of your offending.

Aggravating factors

[16]     I now need to consider aggravating factors that are personal to you.   The obvious aggravating factor is the existence of your previous convictions for being in possession of cannabis for supply and cultivating cannabis in 2004.  That must have been offending of some magnitude or significance, because you received a sentence of two years imprisonment.

[17]     The aggravation that these previous convictions provide, does not arise out of a need to sentence you twice on those charges.  That would be double-counting and would put you in a position of double-jeopardy.   Rather, what they represent is a demonstration of the fact that you have been prepared to offend again in full knowledge that a custodial sentence is the likely outcome in the event that you are caught.  What it means is that your present offending is made that much worse by the fact that you have simply not learned your lesson as a result of the sentence that you received on the present occasion.

[18]     I consider that that has to attract an uplift.  You also need to be aware that, from now on, on every occasion in which you are found to be involved in this type of offending, the starting point of any sentence that you receive will be increased to reflect that fact.  I propose to apply an uplift of six months to reflect that factor.

Mitigating factors

[19]     From the end starting point of three years nine months imprisonment I need to take into account mitigating factors that are personal to you.   You appear for sentence at the age of 35 years.   You appear to have had a relatively stable upbringing, although not without some difficulties.  Quite clearly, your involvement

with cannabis has been the root of your downfall because it has led to, not only your previous offending, but also the offending for which you appear for sentence today.

[20]     You  have,  to  your  credit,  recently  recognised  the  seriousness  of  your addiction to cannabis.   This has led you to obtain assistance from a programme specifically designed to provide help and treatment for people in your position.  The material that has been made available to me makes it clear that you have responded very well to the treatment and counselling that you have been offered.

[21]     The Court needs to encourage people to take stock of their situation and to seek help for problems of the type that you possess.  The Court must ensure that its sentences also reflect recognition of factors like that.

[22]     I propose to reduce your sentence by six months to reflect that particular fact. This reduces the sentence to one of three years three months.

[23]     I also need to give you credit for the fact that you have pleaded guilty at a very early opportunity.  This means that you are entitled to a discount of one-third, or 33 per cent.  The Crown does not argue with that.

Sentence

[24]     On the charge of cultivating cannabis you are sentenced to two years two months  imprisonment.   On  the  charge  of  being in  possession  of  equipment  for cultivating cannabis you are sentenced to one year’s imprisonment.

[25]     Both sentences are to be concurrent which means you will serve a sentence of two years two months imprisonment.

Order

[26]     I make an order for the destruction of the cannabis and the equipment that was found in your possession.

Lang J