R v M HC Gisborne CRI 2010-416-65

[2010] NZHC 867

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2010-416-65

THE QUEEN

v

M

Hearing:         7 May 2010

Appearances: R Collins for Crown

G Gotlieb for M 

D J Sharp for Mrs M   (with interest in forfeiture application) Judgment:      7 May 2010

SENTENCING REMARKS OF ALLAN J

Solicitors:

Crown Solicitor Gisborne

G  Gotlieb, Auckland  [email protected]

Burnard Bull, Gisborne

R V M HC GIS CRI 2010-416-65  7 May 2010

[1]      Mr M  , you appear for sentence this morning on several charges associated with cannabis use.  There are charges of cultivating cannabis for which the maximum penalty is seven years imprisonment, of possession of cannabis for supply for which the maximum penalty is eight years imprisonment, of unlawful possession of a firearm for which the maximum sentence is four years imprisonment, unlawful possession of ammunition for which the maximum sentence is also four years imprisonment, and of possession of equipment intended to be used for the commission of an offence under the Misuse of Drugs  Act 1975, for  which the maximum penalty is five years imprisonment.

[2]      On 10 December 2009 the police executed a search warrant at your home. The police identified some 30 cannabis seedlings, five cannabis plants, 700g of cannabis head in bags in a freezer, and certain equipment relevant to the growing of cannabis inside a camouflaged room.   At the back of the garage the police found certain equipment designed to assist in the growing of cannabis as well as growing aids, such as fertilizer and so forth.   Also recovered were two 12 gauge double barrelled shotguns and four 12 gauge shotgun rounds in the house.  In addition, five other firearms and some ammunition rounds were found in a cabinet in the garage.

[3]      The probation report discloses that you are 45 years old and that you reside at the address at which the search warrant was executed, along with your wife and two young daughters.   You had an unremarkable upbringing and spent a good deal of time overseas where you were living and working.   Upon your return you were engaged in a variety of jobs, met and married your present wife and, importantly, set up an upholstery business which is conducted from your residence and which you carry on today.

[4]      You freely acknowledged your offending to the probation officer and to the police.  The probation officer identifies you as someone who is not at high risk of re- offending.   Indeed you are regarded as highly motivated to put behind you your drug-based lifestyle.   In that regard you have the overwhelming support of your family and have set out at an early stage, following your apprehension, to take steps

to secure counselling assistance, which to date has apparently gone well.  There is also evidence that you remain drug-free as you had intended to do.  As I understand it, you will be able to continue your connection with Awhina House if you are sentenced to home detention.

[5]      There have been several references, which I have carefully read, and which attest to your secure place within your business and indeed within the community. Plainly  you  are  highly  regarded  by  a  variety  of  people.    That,  along  with  the evidence I have as to your determination to rehabilitate yourself, is a powerful factor in determining what the appropriate outcome must be.

[6]      At one point it seemed that there was to have been a dispute over the extent of your activities and as to the commercial aspects of it, and indeed it was envisaged that  there  would  be  a  need  for  a  disputed  facts  hearing  about  some  aspects. However, this morning it has emerged that there is in effect a measure of agreement between the Crown and your counsel, Mr Gotlieb, each of whom has adopted a sensible attitude in the context of offending which seems to me to fit neatly at the bottom end of band 2 of R v Terewi [1999] 3 NZLR 62.

[7]      By pleading guilty to charges, both of cultivating cannabis and possession of cannabis for supply, you have, as Mr Gotlieb accepts, acknowledged a degree of commerciality about your offending.  I should record the fact that it had its genesis in your own long standing cannabis habit and then in the extreme health difficulties that faced your father in his later years when he was in great pain and used cannabis in order to mitigate his sufferings.  But it seems, by reason of the quantities involved here, and by reason of your guilty plea, that there was some commerciality about what  you  were  doing.    You  specifically acknowledge  giving  away  cannabis  to certain friends and acquaintances.  In all the circumstances I approach the case on the footing that, as I have indicated, it sits firmly at the bottom of band 2 of Terewi.

[8]      Mr Gotlieb has submitted this morning that this may be a rare case in which it might be proper to stop short of imposing a sentence of imprisonment, albeit with a home detention rider as an alternative.  I do not regard this as an exceptional case.  I

see this as being a case which can properly be dealt with in the ordinary way by reference to the guidance which Terewi offers.

[9]      Accordingly, I have concluded that the starting point for the offending as a whole ought to be two years imprisonment, which is prescribed by Terewi for cases falling at the bottom of band 2.   That requires the Court to give attention to the possibility of home detention as an alternative sentence.   I am satisfied for the reasons I have earlier outlined in relation to your personal situation that it is appropriate to impose that alternative sentence in this particular case.

[10]     The starting point of two years imprisonment must be discounted by eight months in order to reflect your guilty plea.  That produces a final sentence of one year and four months imprisonment.  In accordance with general practice, which I do not intend to depart from in this case, the sentence of home detention will be one half of that term in order to recognise that home detention carries no parole provision.

[11]     I should note that the firearms charges, which are quite properly brought, do not in my opinion aggravate the offending.   Very often the Court is faced with a situation in which drug offenders are also charged with firearms offences, in circumstances where it can be plainly shown that the firearms are to be deployed if needed in the defence of the drug operation.  Given your explanation in this case for the presence of these firearms and of the ammunition, I am not satisfied that they were a necessary part of what you were doing and in those circumstances, propose to treat these offences as requiring attention only on the basis that they reflect a failure on your part to renew a licence, which you had for many years.

[12]     Drawing all these threads together I am satisfied, as earlier indicated, that a sentence of eight months home detention is appropriate in respect of each of the offences to which you pleaded guilty.

[13]     Finally, I need to deal with the Crown’s application for forfeiture in respect of your residence.   Mr Collins, having given consideration to the material now available to him, and in particular the limited equity which you seem to have in the property concerned, has advised the Court that the Crown does not actively pursue

the forfeiture application under the provisions of the Criminal Proceeds (Recovery) Act.  It is incumbent upon the Court to deal with that application however as part of the sentencing process.  The Crown’s application is accordingly dismissed.

[14]     On each of the charges upon which you appear for sentence this morning, you are sentenced to eight months home detention. The following conditions are to apply:

a)       You are to proceed directly to 44A Ayton Street, Gisborne, there to await the arrival of the probation officer and the installation of the home detention connection;

b)You are to undertake alcohol and drug counselling administered by Awhina House Addiction Centre, Gisborne, or any other approved service provider ,and you are to abide by the rules of that programme to  the  satisfaction  of  the  programme  provider  and  the  probation officer;

c)       You are to reside at 44A Ayton Street or such other address as may be approved or directed by the probation officer for the duration of your sentence of home detention;

d)You are to abstain from using alcohol or illicit drugs for the duration of your sentence.

[15]     I am not going to say to you, as I have to certain of your co-offenders, “Don’t mess it up”, because I do not think you will.

[16]     There will be an order for destruction of the items related to the growing of cannabis that were seized by the police and which support the charge of possession of equipment.

C J Allan J