R v Millington HC Auckland CIV 2010-004-452

[2010] NZHC 1473

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-004-452

THE QUEEN

v

NICHOLAS MILLINGTON

Hearing:         20 August 2010

Counsel:         S N B Wimsett for Crown

G J Newell for Mr Millington

Sentence imposed:     Cultivating cannabis (x1)

Two years three months imprisonment Theft of electricity valued at $8292.31 (x1) Six months imprisonment

Both sentences to be served concurrently

Judgment:      20 August 2010

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, PO Box 2213, Auckland
Counsel:

G J Newell, PO Box 105 444, Auckland

R V MILLINGTON HC AK CRI 2010-004-452  20 August 2010

Introduction

[1]      Nicholas Millington, you have pleaded guilty in the District Court to one charge  of  cultivating  a  Class  C  controlled  drug,  cannabis  and  one  of  theft  of electricity to a value of $8292.31.   Each offence carries a maximum penalty of seven years imprisonment.  You are convicted on each charge.

Facts

[2]      On 20 December 2001, you leased a flat at 135 Vincent Street, Auckland. You did so under a false name.  You and Mr Everett, your co-offender, intended to establish an indoor cannabis cultivation operation in the leased premises.   The building had three levels.  Level one was the flat.  Level two was occupied by a firm of accounts in which about 15 people worked. The basement was used as a carpark.

[3]      Acting on information received about a pungent odour coming from the flat, police officers entered on 26 November 2002.  The landlord provided access to the flat.  On inspection, it became clear that the flat had been converted to enable a soil- based indoor cannabis growing operation to be undertaken.

[4]      Consistent with such an enterprise the floor, walls and ceilings of each room were  lined  with  heavy  duty  polythene  plastic.    All  rooms  contained  specialist lighting and heat lamps and ran continuously.  The heating system was powered by an illegal modification to the building’s power meter, resulting in theft of electricity, an offence to which you have pleaded guilty.   On that basis you must accept responsibility for knowing that was to be done.

[5]      An  electric  powered  ventilation  system  was  used  to  keep  the  room temperature  at  a  level  conducive  to  the  cultivation  of  cannabis.    An  array  of extension cords and electrical wiring were used to bring cohesion to the overall operation.

[6]      Police officers located 865 cannabis plants, ranging from seedlings to mature plants.  Of those, 364 were ready for harvest.  I work on the basis, however, that it was intended to grow the balance of the plants to harvest in due course.

[7]      A drying rack was also found inside the building.  Seven shopping bags full of dried cannabis were located inside a large plastic screw top drum.

Expected yields

[8]      In evidence today you said that you believed the expected yield from the first crop would be something in the vicinity of $15,000 to $20,000, of which you had agreed to receive one-half from Mr Everett.  Mr Everett was responsible for the day to day tending of the crop, inside the building.

[9]      Detective Sowter gave evidence of estimated yields.  His assessment was that between $200,000 and $600,000 could have been expected.   That was based on a commercial expectation of income to be received, having regard to street values of cannabis at the relevant time.  It also depends upon the competence of the particular grower, the hazards of growing, for example, the possibility of disease, the standard of equipment used and the growing methodology employed.

[10]     Mr Feenstra, who gave evidence on your behalf, estimated a yield of about

$55,000 from the first crop.  He gave evidence as an expert, from his perspective of having grown cannabis commercially in The Netherlands, where it was legal to do so.  Nevertheless, Mr Feenstra’s estimates were based only on the number of plants ready for harvest, rather than the total number of plants located by the Police when executing their search.

[11]     Mr Everett, your co-offender, pleaded guilty to the cultivation charge brought against him on the expectation of a per annum yield of $500,000.[1]

[1] R v Everett DC Auckland CRI 2003-004-25332, 29 November 2004 at [3]. 

[12]     I agree with counsel that there is no scientific way to establish the monetary yield on an unharvested crop.  There are too many variables to do that.  However, I

believe that both you and Mr Feenstra sought to minimise the likely income yield, to bring about a lower sentence for you.

[13]     I accept, however, that the Crown must prove aggravating factors beyond reasonable doubt.  For that reason, I take a cautious approach and value the annual likely yield from the crop at between $90,000 and $130,000.   In the context of a commercial operation that puts your offending on the cusp of categories 2 and 3 of the guideline Court of Appeal judgment in R v Terewi.[2]

[2] R v Terewi [1999] 3 NZLR 62 (CA) at [4].

[14]     In saying that you attempted to minimise your involvement in this enterprise, I do not suggest you are lying.  I think, Mr Millington, that you are in denial about what you did.  You, in the past, involved yourself in a criminal activity and you now regret the predicament in which you find yourself because you know full well that it is something into which you should not have ventured.

[15]     Profit can have been the only motivation for someone such as yourself; a person who had an unblemished record involving himself in a crime of this type.  I approach sentencing on the basis that you had an economic motivation for your involvement in a cultivation enterprise.

Personal factors

[16]     At the time of your offending you were about 36 years old.  You had just sold an interest in a business.   I consider that you were looking for a commercial opportunity.  Sadly for you, you decided to move into the criminal arena.

[17]     You learnt  about the Police raid on  the premises from Mr Everett, who telephoned you while you were in the South Island.   You took no steps to accept responsibility for your actions.   Rather, you continued with what I find to be an existing plan to go to France with your family.

[18]     In effect, from that time until your arrest in 2009 when you returned to New

Zealand, you were a fugitive from New Zealand justice.

[19]     While I accept you led an unblemished life in France and have done so since your return to New Zealand in 2009, when arrested at the airport, your evasion of responsibility means that you should only receive one credit for both your guilty pleas and for your unblemished record while in France.  That is the way in which the law treats a reformed absconder.[3]

Submissions

[3] Rogers v R [2010] NZCA 48 at [22] and [23].

[20]     Mr Wimsett, for the Crown, has  sought  to put  you in the position of a principal or director of the cultivation operation.  He points out that you have given evidence of selling equipment to cannabis growers previously.  He submits that you took a lease on the central city property knowing that you would receive a substantial return for what you did.

[21]     Mr Everett was to do the manual work.  You could not be seen, Mr Wimsett says, as an employee or some other equal partner in this venture.  He submits to me that  you should be treated as someone with a greater culpability than  your co- offender, Mr Everett, who was sentenced as being a secondary offender when he came before the Court in 2003.[4]

[4] R v Everett DC Auckland CRI 2003-004-25332, 29 November 1004 at [8].

[22]     Mr Newell submitted that your role should not be distinguished from that of

Mr Everett.  He submitted you should be regarded as equally culpable.

[23]     Mr Newell pointed out the works you have done since you returned to New Zealand and suggested that you consider yourself remorseful for your actions.  I have to say, from the way you gave evidence this morning, I consider you are more remorseful and feeling sorry for yourself than you are for the crime you committed back in 2002.

[24]     Mr Newell submitted that because you fall into a transitional period in which you do not need to fall within a sentence of imprisonment of two years or less,[5] I can impose home detention on you, which is effectively the sentence that Mr Everett received having been granted leave to apply in those days and having succeeded in his application before the Parole Board.

Analysis

[5] R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.

[25]     In sentencing you today, I am required to hold you accountable for the harm done to the community by your offending.  I am required to promote in you a sense of responsibility for and, acknowledgement of that harm.  I am required to denounce the conduct in which you have been involved, to deter you and others from committing similar offences and to assist in your rehabilitation and reintegration into the community.

[26]     I am required to take account of the gravity of the particular offending, but on the other hand, am required to impose the least restrictive outcome appropriate in the circumstances.

[27]     The starting point for sentence must be fixed by reference to aggravating factors.   I have already indicated the monetary income that I have assessed was likely to be received on an annual basis from the cannabis cultivation operation.  I find that you would have been well aware of that level of income.   Otherwise, a businessman such as yourself would not have entered into an arrangement of this type for the purposes of profit.  However, I consider you fortunate in some ways that I have taken a conservative approach to that aspect.   I use a starting point for sentence of four years imprisonment based on that.

[28]     In  mitigation,  you  have  entered  pleas  of  guilty.     Your  post-offending activities  in  France  were,  as  I  have  said,  unblemished.    In  terms  of  the  legal authorities  you  are  entitled  to  a  credit  representing  one-third  for  both  of  those factors.[6]   I also intend to deduct a credit of six months to recognise your community

character prior to the offending in 2002.

[6] Rogers v R [2010] NZCA 48 at [23].

[29]     On the basis of a starting point of four years imprisonment, the deduction of six months for those two factors and a further one-third for the purposes of the guilty plea and your time in France, you would ordinarily serve a term of imprisonment of two years and three months.

Home detention?

[30]     However, I must consider whether to grant home detention.

[31]     This has been a difficult decision and I should tell you at the outset I have decided not to grant that sentence.

[32]   Ultimately, I am required to decide whether the sentencing goals of denunciation, deterrence and accountability are such that  your offending can be marked with a sentence short of imprisonment.  I do not consider they can be and I take two factors into account in reaching that view.

[33]     The first is your level of culpability in the offending.   The second is your failure to accept responsibility for your actions from 2002 until 2009.  This Court should not be encouraging people to flee overseas, whether planned or not, to escape criminal responsibility and then have them come back later and say “I have lived a good life and therefore I should not go to prison”.  That is the reason why I decline to impose home detention.

Result

[34]     On that basis, you will be sentenced to a term of imprisonment of two years and three months on the offence of cultivating cannabis.  On the charge of stealing electricity, you are sentenced to a concurrent term of six months imprisonment.  That means the effective sentence is one of two years three months imprisonment.

P R Heath J