R v McDonald HC Whangarei CRI-2011-088-3522
[2011] NZHC 1029
•5 September 2011
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2011-088-3522
THE QUEEN
v
JOHN GILBERT MCDONALD
Counsel: M A Jarman-Taylor for Crown
J S Day for Prisoner
Judgment: 5 September 2011
SENTENCING NOTES OF BREWER J
SOLICITORS/COUNSEL
Marsden Woods Inskip & Smith (Whangarei) for Crown
John Day (Whangarei) for Prisoner
R V MCDONALD HC WHA CRI-2011-088-3522 5 September 2011
Introduction
[1] Mr McDonald, you appear for sentence on one charge of cultivation of cannabis (which carries a maximum penalty of seven years’ imprisonment) and possession of cannabis for sale (which carries a maximum penalty of eight years’ imprisonment).
Facts
[2] On 3 June 2011 the Police searched your address and vehicle. In the vehicle the Police found 14 cannabis tinnies, a one-ounce bag of cannabis head, a pipe and a spotting knife. The total weight of cannabis located was 41.21 grams.
[3] You advised that you were moving house and the Police searched your new address. They located a shed at the rear of the property which had been converted into a cannabis growing room. Inside the shed were 48 small cannabis plants ranging from 150-200mm. The plants were growing in planter bags under grow lights. They were healthy and in good condition. The grow lights and heat shields were attached to a timer which was set on a 12-hour cycle; two ballast boxes to regulate power to the shed were attached to a multi-plug in the wall of the shed; and an extractor fan and attached ducting had been constructed in the roof to ventilate the shed. The inner walls of the shed had been lined with reflective paper to maximise the growing conditions for the plants. The power source to the shed and grow room was supplied by an extension cord which had been buried in a direct line from the house. The extension cord had been run from underneath the floor of the house and was attached to a power outlet in the laundry.
[4] Inside your home the Police found a roll of tin foil, digital scales, a sealable plastic bag containing cannabis residue, and a small amount of cannabis plant material.
[5] In explanation you told the Police that you had bought two one-ounce bags of cannabis and that you had made the tinnies to sell, although you said that you had
not yet sold any of them. You said that you are also a user of cannabis and that the cannabis pipe and spotting knife were for your own use.
[6] You spoke candidly to the officer who prepared the pre-sentence report about your involvement with the cannabis. You told the officer that money was your motivation for your offending. You needed money because you could not afford to provide for your children, pay fines, and service a debt to a finance company. You reported that you smoked up to three cannabis cigarettes on a daily basis.
Purposes and principles
[7] Sentencing you today will involve a three-step process. The first step is to look at your offending to see where it fits into the range of sentences which have been established by the Courts for this kind of offending. This will result in a starting point from which I will then go on to assess your final sentence.
[8] The second part of the process is to see how the starting point should be adjusted, up or down, to take into account your personal circumstances. That will result in a calculation of a term of imprisonment.
[9] I tell you now that the final term of imprisonment will be less than two years, and so the third part of the sentencing process will be to consider your eligibility for home detention.
(a) First step
[10] The first step is to assess where your offending falls within the range of offending of a similar type. As the lawyers have said, the case that sets this out is R v Terewi.[1] Category 2 of that case involves small scale cultivation of cannabis plants for a commercial purpose. A starting point in a range of two to four years’ imprisonment is generally appropriate, but a lower starting point may be taken if sales are infrequent and of a limited extent. In your case, of course, the cannabis
cultivation operation had just started and you had not yet sold any of the product.
[1] R v Terewi [1999] 3 NZLR 62 (CA).
[11] The Crown has submitted that I should take a starting point for you of two to two-and-a-half years’ imprisonment. The Crown says that that should particularly be so because not only were you cultivating cannabis for a commercial purpose but you had possession of cannabis in your car for sale. In sentencing you I have to take account of the fact that there are two cannabis dealing charges.
[12] Your own lawyer has submitted that a starting point of two years to two years three months’ imprisonment would be appropriate, with an end sentence of home detention.
[13] Mr McDonald, there is not much that I can say about the circumstances of your offending. They are all too common. However, that is not a reason for the Court to lose sight of the loss, damage and harm that results from drug offending. Nor should the Court lose sight of the prevalence of this sort of offending in Northland and the immense degradation caused by it becoming an accepted part of life among vulnerable members of the community. In this case you had two no doubt impressionable children living at your address while you were going to these lengths to grow and prepare cannabis for sale.
[14] I have looked at other cases which I will refer to in the written record of this sentence.[2] In all the circumstances, and having an eye to the totality principle, I take a starting point of two years’ imprisonment.
(b) Second step
[2] R v Edmonds CA23/02, 28 May 2002; R v Walpole [2007] NZCA 89; R v Latham [2007] NZCA
552; R v Hawke HC Auckland CRI-2009-044-10006, 24 August 2010, Potter J; R v Corcoran HC Blenheim CRI-2006-006-948, 8 November 2006, Gendall J; R v MacDonald HC Dunedin CRI-2010-002-715, 10 February 2011, French J; R v McGilp CA124/07, 7 June 2006.
[15] I now come to look at your personal factors. You are 48 years of age. You are a single parent, having the care and protection of two children aged 10 and
11 years. You have six other children from other relationships. You are in receipt of the domestic purposes benefit and your offending was for the purpose of obtaining
additional income. You are a daily user of cannabis yourself.
[16] You have been offending all your life. You have 63 previous convictions, five of which are for cannabis or drug offending. However, the last cannabis related offence was in 1992, so I am going to treat your record as an absence of good character rather than an aggravating factor.
[17] The pre-sentence report assesses you as having a medium risk of reoffending, although there are indications that you might at last be motivated to make changes in your lifestyle. This is evidenced by you seeking counselling and assistance from community financial management services.
[18] The pre-sentence report makes some mention of remorse, although given your lengthy record and the lack of any tangible manifestation of remorse I cannot give this factor any weight.
[19] In these circumstances I make no adjustment to the starting point for personal factors. However, you did enter your guilty pleas at the second callover and I am satisfied that you should have a discount of 25% from the starting point because of the entry of these pleas.
[20] Accordingly, I reach a final term of imprisonment of 18 months.
(c) Third step – home detention
[21] You have been assessed as being suitable for home detention. Your address has been assessed as suitable for home detention.
[22] I may impose a sentence of home detention only if I am satisfied that the purposes for which sentence is being imposed cannot be achieved by any less restrictive combination of sentences.
[23] In your case I am not satisfied that home detention would adequately reflect the principles of deterrence and denunciation that the Court must have in mind when sentencing for drug related offending carried out for commercial purposes. In taking this view, I have looked carefully again at your personal circumstances.
Rehabilitation and reintegration are also important sentencing principles and for offenders in your position the long term interests of the community as well as of yourself are in fostering life changes that will bring a criminal career to an end. In your case I can see no light at the end of the tunnel.
[24] I have listened to what your lawyer has said and I have looked at the letters which have been handed up. One is from Strengthening Families and is dated
12 August 2011 addressed to you. It confirmed that a Strengthening Families meeting would take place on 2 September 2011. I hope you attended and I hope it gave you some insight. I also have a letter from NorthTec dated 17 August 2011. It is from your tutor who says that she has known you for the last 12 months while you have been attending her sustainable rural development level courses. The letter says that you have shown an aptitude for horticulture; that you have designed and implemented part of your garden design at your address. The letter speaks well of your reliability and your ability to get on with many people. I see that you have passed level 3 stages of that course. Your lawyer has also said that you have recently approached the Salvation Army Bridge Programme. So it might be that there is a glimmer of hope for you, but not yet enough for me to act on.
[25] I am mindful of the fact that you had gone to quite elaborate preparations to establish a commercial cannabis growing operation. You did this in the home that you share with your two young children and it is to that same home that you would be remanded on home detention.
[26] As your counsel has said, there has to be a balancing exercise, and in your case the balance comes down against you.
Sentence
[27] On each charge you are sentenced to 18 months’ imprisonment, with those
sentences to be served concurrently. I remit your fines, as per the application. Stand down.
Brewer J
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