R v Miller

[2012] NZHC 2499

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-057-1106

CIV-2012-404-2677 [2012] NZHC 2499

THE QUEEN

v

JANIE PATRICIA MILLER

Hearing:         25 September 2012

Counsel:         M R Harborow for Crown

P H H Tomlinson for Accused

Judgment:      25 September 2012

SENTENCING REMARKS OF LANG J

R V JANIE PATRICIA MILLER HC AK CRI-2012-057-1106 [25 September 2012]

[1]      Ms  Miller,  you  appear  today  for  sentence  having  pleaded  guilty  in  the District Court to charges of cultivating cannabis and being in unlawful possession of a firearm and ammunition.   The maximum penalty on the charge of cultivating cannabis is seven years imprisonment.  The maximum penalty on the remaining two charges is four years imprisonment.

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

Background

[3]      The charges against you arose out of a search that the police carried out of your property at Puni on 22 March 2012.  The police executed a search warrant at your address, which was situated in a rural area.  Your property comprised two acres of land.  On the property was a dwelling, two outsheds and a large barn.  At the time of the police search, you were living at the address with your partner.

[4]      The police cut the padlock on the barn to gain entry.   Once inside, they noticed a distinct smell of cannabis.   They then searched the barn, and found an artificial grow room at the far end of the barn on the right hand side.  The entrance to the grow room was barred by way of a padlock.   The police cut the padlock and entered the room. They found that the grow room had been lined with aluminium foil, and was equipped with a variety of other items used in the cultivation of cannabis.   These included high wattage bulbs, power boxes, thermometers, timers and fans.

[5]      When the police entered the grow room, they found eight mature cannabis plants, all of which were about four feet in height and were housed in individual plastic pots.  All eight plants were full of cannabis head material.

[6]      The police then searched the rest of the property and observed a power lead running from the dwelling to another outshed.  This, too, was sealed by a padlock.

When the police cut the padlock, they found a small power box and leads running from the power box through a plywood wall.  When they moved a cabinet on wheels away from the side of the wall, they found that it concealed a hole in the wall. Behind the wall was another man-made artificial plywood cannabis growing room.

[7]      In the second room, the police found seven mature cannabis plants standing at about two foot tall.  These, too, were housed in individual pots.  Also inside this room, the police found 16 cloned cannabis plants growing in an individual growing container.

[8]      This grow room had also been kitted out with a variety of items used in the cultivation of cannabis.   These included a high wattage bulb, power boxes, thermometers, timers and fans.

[9]      When  the  police  searched  the  dwelling  on  the  property,  they  located  a double-barrel shotgun in an upright position.   In another bedroom, the police also found 84 shotgun shells, 30 .306 rounds and 18 .303 rounds, as well as a belt containing some of the shotgun shells.  The summary of facts records that the latter room was where you slept.

[10]     When the police searched the drawers of the first bedroom, they found a snaplock clear plastic bag containing 14 grams of good quality cannabis head plant material.

[11]     When  the police spoke  to  you,  you  frankly admitted  that  you  had  been responsible for growing the cannabis.  You told them that you have suffered for a considerable period from fibromyalgia.  You said that after undertaking research on the properties of cannabis for pain relief, you decided to grow cannabis for that purpose.  You then set about equipping the two grow rooms in the manner that was evident to the police when they searched the rooms.  You said, however, that one of the grow rooms had been constructed by a tenant who rented the property during a period when you lived away from it.

[12]     You denied that any of the cannabis was for the purposes of sale.  You said that you smoked approximately four cannabis cigarettes per day in order to assist with pain relief.  You said that you received the firearms and ammunition as a result of your father passing away some years ago and leaving those items to you.

[13]     The  Crown  accepts  that  this  was  not  a  commercial  cannabis  growing operation.  That is significant, because the penalty that would be imposed on you if that had been the case would be significantly greater than the penalty I propose to impose today.  Nevertheless, it is clear from the photographs of the operation that, notwithstanding that it was not commercial in nature, it was a reasonably sophisticated operation.   It was equipped with the growing aids to which I have already referred, and the cannabis plants that are shown in the photographs are all in extremely healthy condition.   Of its type, I consider that, as I have said, it was a reasonably sophisticated growing operation, although it did not bear other hallmarks such as a hydroponic setup or other indicia of commercial growing of cannabis.

Sentencing Act 2002

[14]     In any case involving drugs, issues of deterrence and denunciation are to the forefront.  That is why people who grow cannabis on any significant scale, and those who deal in drugs, virtually inevitably receive a sentence of imprisonment.  That is the only way in which the courts can make the point that involvement with drugs does not pay.   Having said that, it is important that I impose a sentence that is consonant with the gravity of your offending and broadly consistent with case law authority.

[15]     I take the lead charge to be that of cultivation of cannabis.  It encompasses also the 14 grams of cannabis that the police found in the bedroom of the dwelling.

Starting point

[16]     The  starting  point  for  any  sentence  relating  to  the  charge  of  cultivating cannabis is to be determined having regard to the guideline judgment of the Court of

Appeal in R v Terewi.[1]    In that case, the Court identified categories of offending based on degrees of commerciality, quantity and sophistication.

[1] R v Terewi [1999] 3 NZLR 62.

[17]     Your counsel says that  you fall squarely within Category 1 identified in Terewi, which applies to the small scale cultivation of cannabis for the personal use of the offender.  The Crown says, however, that you fall either at the top end of that category or  at  the lower end  of Category 2.    Category 2  involves  a  degree of commercial activity, and calls for a starting point of between two and four years imprisonment.  I consider that you fall within Category 1.  Nevertheless, the relative sophistication of the operation and the number of plants suggests to me that you are not at the bottom end of Category 1.  Rather, you are in the middle or towards the upper end.

[18]    Counsel have referred a number of cases to me, and I have taken the circumstances and starting points selected in those cases into account.[2]   In this area, however, each case stands very much on its own facts and other cases can do little more than provide a guideline regarding the starting point to be applied.  I consider an appropriate starting point, having regard to the nature of this particular operation, is a sentence of 16 months imprisonment.

[2] R v Simeon [2012] NZHC 1999; R v Gatenby CA511/04, 28 April 2005.

[19]     It is necessary to add a small uplift to that sentence to reflect the fact that you were also unlawfully in possession of firearms and ammunition.  The courts often remark on the fact that such items are found in close proximity to drug-related activity.  That can lend a sinister note to firearms charges.  In your case, however, I am satisfied that no inference of that type is to be drawn from the fact that you had a shotgun and ammunition for which you did not have a licence.  I propose to add just two months to the starting point I have selected to reflect that fact.

[20]     This brings me to an end starting point on all charges of one year six months imprisonment.

Aggravating factors

[21]     You appear for sentence at the age of 61 years, with no previous convictions. This means that there are no aggravating factors personal to you that would operate to increase the starting point I have selected.

Mitigating factors

[22]     The only remaining step in this part of the sentencing process is to determine the extent to which I should reduce the starting point to reflect mitigating factors personal to you.  I consider that three factors need to taken into account.

[23]     First, as I have said, you have a flawless record and have never been before the courts before.  You are entitled to call in aid your previous good character by way of mitigation in the present case.   Secondly, I accept that you have suffered from serious health issues, and your counsel has provided me with details of these in the material he has provided in support of his sentencing submissions.   Taken together, I consider these factors warrant a discount of four months.

[24]     This leaves me with a starting point of one year two months before taking into account your guilty pleas.  The maximum discount that can be given for a guilty plea  is  25  per  cent.    In  Hessell  v  R,[3]however,  the  Supreme  Court  reminded sentencing Judges that they must take a robust approach to the discount to be given for guilty pleas.  It may not be appropriate, for example, to provide a full discount of

25 per cent in circumstances where conviction was virtually inevitable from the outset.  The Crown says that that is the case here, and that once the police found the cannabis and interviewed you, you realistically had no defence to the charges.

[3] Hessellv R [2011] 1 NZLR 607.

[25]     I accept that that may be the case, but there is also force in your counsel’s submission that  you effectively convicted  yourself by the admissions you made during your interview with the police.   That is not to be held against you, in my

view, because it shows that you were co-operating with the police.   I propose to

apply the maximum discount that I can for your guilty plea.  When I round that up, it amounts to a discount of four months.  The end sentence, therefore, would ordinarily be a sentence of ten months imprisonment.

Forfeiture

[26]     That is not the end of the matter in this case, because I now need to consider whether or not the proceeds of sale of your property should be forfeit to the Crown.

[27]     The property was sold in June 2012 and the proceeds of sale, amounting to approximately $490,000, have remained on deposit since that date pursuant to a restraining order made by this Court on the application of the Crown.

[28]     In December 2009, the criminal forfeiture regime that was previously in force was repealed.  It was replaced by the Criminal Proceeds (Recovery) Act 2009 and ss 142A to 142Q of the Sentencing Act 2002.   Read together, these created a new regime for the forfeiture of proceeds of crime and property used to undertake criminal activity.

[29]     The current regime requires the issue of forfeiture to be determined prior to the point at which an offender is sentenced.  If an order for forfeiture is made, that order must then be taken into account at sentencing.  This may result in the sentence that the offender would otherwise receive being reduced, or even extinguished, as a result of the fact that an order for forfeiture has been made.  It is noteworthy that the entire property will constitute an instrument of crime, even if it has only been used in part for criminal purposes.

[30]     There is no dispute in the present case that you have committed a qualifying offence, and that your property amounts to an instrument of crime for the purposes of the new legislation.

[31]     The key provision, so far as instrument forfeitures are concerned, is s 142N

which provides:

142N   Instrument forfeiture orders

(1)       Following a hearing under section 142K, the court may, if it is satisfied  that  the  property  described  in  the  notice  given  under section 142B is an instrument of crime, order that the instrument of crime or any part of it specified by the court be forfeited to the Crown.

(2)       In considering whether or not to make an instrument forfeiture order under subsection (1) in respect of particular property, the court may have regard to—

(a)       any matter raised in an application for relief under section

142J; and

(b)       the use that is ordinarily made, or was intended to be made, of the instrument of crime; and

(c)       any undue hardship that is reasonably likely to be caused to any person by the operation of such an order; and

(d)       the  nature  and  extent  of  the  offender's  interest  in  the instrument of crime (if any), and the nature and extent of any other person's interest in it (if any); and

(e)       in addition to the matters referred to in section 77(1) of the Criminal Proceeds (Recovery) Act 2009, any other matter relating to the nature and circumstances of the qualifying instrument forfeiture offence or the offender, including the gravity of the qualifying instrument forfeiture offence.

(3)       A  court  that  makes  an  instrument  forfeiture  order  may,  if  it considers that it is appropriate to do so, by order,—

(a)       declare the nature, extent, and value of any person's interest in an instrument of crime; and

(b)       declare  that  the  instrument  forfeiture  order  may,  to  the extent to which it relates to the interest, be discharged under section 85 of the Criminal Proceeds (Recovery) Act 2009.

(4)       If the court orders that property (other than money) be forfeited to the Crown, the court must specify in the order the amount that it considers to be the value of the property at the time the order is made.

(5)       If a court makes an instrument forfeiture order, the court may give any directions that are necessary or convenient for giving effect to the order.]

[32]     Until the Court of Appeal delivered its decision in a case called Elliot v

R,[4]sentencing courts applied s 142N on an “all-or-nothing” basis.  This meant that

either the entire property or proceeds of sale were forfeit to the Crown, or none of it was.  In Elliot, however, the Court of Appeal confirmed that the words “or any part of it” in s 142N(1) permit the Court to take a middle road.  They enable the Court to order that part only of an offender’s property be forfeited to the Crown should that be appropriate.

[4] Elliot v R [2011] 3 NZLR 811.

[33]     This is a significant departure from the regime under the previous legislation, which did not permit part of a property used for criminal purposes to be forfeited to the Crown.

[34]     I now turn to consider the matters I am required to take into account under s 142N:

(a)      Any matter raised in an application for relief under s 142J

[35]     Your property was owned by a trust of which you and your daughter are trustees.  Originally your daughter filed a notice indicating that she was claiming an interest in the property.   Recently, however, she withdrew that notice.   For that reason, this issue does not arise for determination.

(b)      The use that is ordinarily made of the property

[36]     You purchased the property in 1992 using legitimate means to do so.  You have resided in the property for the most part during the intervening period, although at one stage you lived away from it for some years and lived elsewhere.  It is during this period, you say, that one of the growing rooms was constructed by the person who was tenanting the property at that time.

[37]     Quite  clearly,  the  dwelling  on  the  property  was  used  principally  for residential purposes although, of course, it was also used to store cannabis as is evidenced by the cannabis that the police found in the bedroom.  There is also no doubt that from time to time it was also used by you to smoke cannabis.

[38]     The outbuildings served a dual purpose.   Obviously, they served the usual rural functions of being sheds or barns capable of being used to store machinery and equipment.  A significant part of their function was also, however, to provide areas within which you could grow cannabis.   The growing rooms were artificially constructed, whether by you or the tenant, and were used exclusively for the purpose of growing cannabis.

(c)      Undue hardship that is reasonably likely to be caused to any person by the operation of such an order

[39]     Although the owners of the property and now the proceeds of sale were a family trust, I have no doubt that you are the person in control of the trust.  I have not been provided with a copy of the trust deed, but presume that you and your family were the beneficiaries of the trust.

[40]     Clearly, however, from the tenor of the submissions that your counsel has made to me today, you rely on the proceeds of sale as the means by which you propose to acquire another home to replace the dwelling on the property that has now been sold.

[41]     You point out that, at the age of 61 years, you are unlikely to be able to amass much in the way of capital in the future.  You have modest savings other than those currently subject to the restraining order.   Your counsel also points out that your health issues are likely to mean that you will not be able to work again in any meaningful way in the future.  As a result, the monies that were realised from the sale of the property are likely to form the bulk of the assets available to you with which to house and provide for yourself in years to come.

[42]     You also point out that your property was legitimately acquired, and that you have  made  no  commercial  profit  out  of  the  cultivation  venture.    Your  counsel submits that the effect of forfeiture on you is likely to produce undue hardship.

[43]     I accept that a degree of hardship will be inevitable in the event that an order for forfeiture is made.   It will be difficult for you to acquire further capital in the

years to come.   Nevertheless, hardship of this type was undoubtedly both contemplated and intended by Parliament when it passed this legislation.

[44]     Your counsel today has made a submission that the courts should never make an order for forfeiture in circumstances where offending has not been commercial in nature.   As I advised him during the course of argument,  I do not  accept that submission.    I  consider  that  the  legislation  is  to  be  applied  regardless  of  the motivation behind the offending.  I accept unreservedly, however, that offending in this way for personal use is to be viewed at a much lower level than offending for commercial gain.

[45]     I also bear in mind the fact that criminal activity and, in particular, drug- related criminal activity often takes place within the offender’s residence.  Moreover, the offender will often have acquired such property using legitimate funds and it may be of considerable value.  Parliament must be taken to have known all of those facts. It must therefore also be taken to have intended such property to be ordinarily subject to the instrument forfeiture regime.

[46]     For  these  reasons,  although  I  am  satisfied  that  a  forfeiture  order  will inevitably produce hardship for you, I do not consider that it will amount to undue hardship in terms of the legislation.  I also bear in mind the fact that the Court has the ability to ameliorate hardship to some extent by ordering forfeiture in part rather than in whole, and also by reducing the sentence that would otherwise would be passed on the offender.

(d)      The nature and extent of your interest in the property

[47]     I have already noted the fact that your trust was the legal owner of the property and is now the legal owner of the proceeds of sale.  For the reasons I have already given, however, I am satisfied that you have effectively treated the property as your own, and that you propose to deal with the proceeds of sale in the future in a manner that will benefit you by providing you with an alternative form of accommodation.

(e)      Nature and extent of any other person’s interest in the property

[48]     This issue does not require resolution in the present case.

(f)      Any  other  matters  relating  to  the  nature  and  circumstances  of  the qualifying instrument forfeiture offence or the offender, including the gravity of the qualifying instrument forfeiture offence

[49]     Several factors are relevant in this context.  On the one hand, I have already indicated that, of its type, this was a reasonably sophisticated cultivation operation. On the other, there is the fact that there was no commercial element, and you used the cannabis that you grew solely for the purpose of pain relief.  Those are powerful factors and they need to be taken into account.   However, on their own, I do not consider that they are sufficient to mean that an order for forfeiture should not be made.

[50]     The factors I have identified lead me to the conclusion that an order for forfeiture would not be disproportionate to the nature and gravity of your offending and your personal circumstances.  However, I am satisfied - and the Crown concedes

– that it would be wholly disproportionate to direct that the entire proceeds of sale be forfeit.   The Crown suggests that the mitigating factors to which I have referred justify an order that you forfeit between 25 and 50 per cent of the proceeds of sale.

[51]     Your counsel argues that the forfeiture legislation was not intended to capture this type of offending at all, and that no order for forfeiture should be made.

[52]     Counsel have referred me to a number of cases in which offending having a commercial character has resulted in forfeiture orders being made in relation to between 50 and 100 per cent of the offender’s interest in property.[5]  Neither counsel has been able to find any case in which the forfeiture regime has applied to offending

involving no commercial element.   I consider that this reflects the fact that the

current forfeiture regime is in its infancy.  It is likely, in my view, that further cases of this type will arise in years to come.

[5] R v Macpherson HCAuckland CRI-2009-090-11944, 19 August 2011; R v Brazendale [2011] NZCA

[53]     I take the view that the non-commercial nature of your offending, and the circumstances in which it occurred, require a significantly different approach to be taken to those taken in the cases where forfeiture of 50 per cent or more has been ordered.   I consider that a proportionate response to your offending, and to your personal circumstances, is to make an order requiring you to forfeit 15 per cent of the funds currently held subject to the restraining order.  In cash terms, this is likely to result in you forfeiting the sum of approximately $75,000 out of a total sum of approximately $490,000.

[54]     This  leads  me  to  the  final  step  of  the  sentencing  exercise,  which  is  to ascertain the end sentence that should be imposed upon you having regard to the forfeiture order I propose to make.

[55]     Counsel for the Crown accepts that the punitive aspects of the sentence have been adequately met by the forfeiture that will be imposed.   He submits that a sentence of supervision for twelve months should be imposed in order to ensure that your involvement in cannabis has come to an end.

[56]     Your counsel submits that no further penalty is required.  He advises me that you no longer use cannabis, and that you have turned to codeine as a source of pain relief for your fibromyalgia.  I would hope that that is the case and, if it is, I am sure that you will not find a sentence of supervision to be unduly onerous.  I consider, however,  that  it  is  important  that  this  aspect  of  your  life  is  subject  to  some supervision in the immediate future.  For that reason, I consider that a sentence of supervision of nine months duration would be appropriate.

[57]     So if you will stand please.

Sentence

[58]     Ms Miller, on the charge of cultivating cannabis, I sentence you to nine months supervision.

[59]     On the remaining two charges, you are convicted and discharged.

Order for forfeiture

[60]     I direct that an amount equivalent to 15 per cent of the sum paid into the

Official Assignee’s Trust Account be forfeit to the Crown.

[61]     Counsel are to confer in order to draft an order that reflects this direction and complies with the formal requirements of the legislation.

[62]     To the extent that the direction may not comply with the precise wording of the Act, it is to be regarded as interim in nature at this stage.

Lang J

Solicitors:

Crown Solicitor, Auckland
Counsel:

P H H Tomlinson, Auckland

494; Commissioner of Police v Sheehan HC Auckland CIV-2011-419-1024 7 October 2011; R v Elliot
(No 3) HC Gisborne CRI-2010-416-65, 28 October 2011.