R v Moore

[2013] NZHC 1427

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2013-088-467 [2013] NZHC 1427

THE QUEEN

v

STEPHEN MOORE

Hearing:                   14 June 2013

Appearances:           M B Smith for Crown

S K Ellis for Prisoner

Sentence:                 14 June 2013

SENTENCING REMARKS OF LANG J

R v STEPHEN MOORE [2013] NZHC 1427 [14 June 2013]

[1]      Mr  Moore,  you  appear  for  sentence  today  having  pleaded  guilty  in  the District Court to charges of cultivating cannabis, being in possession of cannabis for sale,  being  in  unlawful  possession  of  a  pistol  and  unlawful  possession  of ammunition.

[2]      The   maximum   sentence   on   the   cultivation   charge   is   seven   years imprisonment, whilst that on the charge of being in possession of cannabis for sale is eight  years  imprisonment.    The  maximum  sentence  on  the  charge  of  being  in unlawful possession of a pistol is three years imprisonment, whilst that for the charge of unlawful possession of ammunition is four years imprisonment.

Background

[3]      All of the charges arise out of a search that the police carried out of your home address on 9 February 2013. When the police searched the address, they found two indoor cannabis growing operations under your rented accommodation.   The police found that you had established a tent with insulated walls and grow lights.  A total of 17 cannabis plants approximately 1.5 metres tall were located in this area. All of those plants were healthy, and in the early stages of budding.

[4]      The police also found a number of used black polythene bags in the area. This indicates that there may have been previous harvests of cannabis.  In addition, they found containers of plant food, insecticides and fertiliser.

[5]      When the police searched the kitchen, they found a container with ten grams of cannabis plant inside.  Earlier, the police had found three plastic bags containing a total of 1.3 kilograms of dried cannabis in the area of the growing operation.  The quantity of cannabis that the police found in the kitchen was near a quantity of new and unused small clear plastic snaplock bags.  These are commonly used to package quantities of cannabis for sale.

[6]      When the police searched the rest of your address, they found a sawn-off shotgun in your wardrobe.  This was inoperable because the hammers and springs were missing.   Also located in the wardrobe were 20 rounds of live shotgun ammunition and 12 live rounds of .22 calibre ammunition.

[7]      You freely admitted that you had grown the cannabis, and that the dried cannabis that the police found at your home address was yours.  You also admitted possession of the sawn-off shotgun and ammunition.

Sentencing Act 2002

[8]      As I am sure you now know, the sentence virtually invariably imposed when offenders appear on drug dealing or cultivation charges having any commercial element  is  one  of  imprisonment.    That  is  really  the  only  way  the  Court  can effectively deter and denounce this type of offending.  The most important aspect of any sentencing in this area is to ensure that the starting point coincides with those suggested in guideline judgments of the Court of Appeal, and to tailor that starting point  to  reflect  the  aggravating  and  mitigating  personal  characteristics  of  the offender.

Starting point

[9]      The starting point in your case is governed by the decision of the Court of Appeal in R v Terewi.[1]   In that case the Court said that in cases of moderate cannabis cultivation having a commercial element, a starting point of between two and four years imprisonment is appropriate.  Your offending clearly falls within that category because it had elements of sophistication, although only moderately so.

[1] R v Terewi [1999] 3 NZLR 62 (CA).

[10]     Quite clearly, however, this was an operation set up partially for commercial gain.   You suffer from chronic pain, and I accept that you use cannabis to obtain relief from this.  Nevertheless, as your counsel says, coupled with personal use there

was a commercial side to the operation.

[11]     I take the view that your offending falls towards the bottom of the band identified in Terewi in this context.  I take a starting point of two years three months imprisonment on the cultivation charge and that of being in possession of cannabis for sale.

[12]     The firearms charges require a discrete uplift.  I propose to uplift the starting point I have identified in relation to the cannabis charges to reflect the firearms charges.  I do so because I consider the firearm and ammunition were inextricably linked with your cannabis growing operation.

[13]     Your counsel emphasises that the Crown accepts the sawn-off shotgun was inoperable.   It was only inoperable, however, because of the absence of key components.   Once those components were available, the firearm became an extremely dangerous weapon.  The fact that 20 rounds of live shotgun ammunition were found in your wardrobe also suggests that you may have had the intention that the gun be rendered operable again at some stage in the future.

[14]     I accept that it is likely that the shotgun was in your possession for defensive purposes.   You may have decided to keep it handy in order to deter others that learned of your cannabis growing operation, and arrived at your address to steal your cannabis.   Nevertheless, the production of such a weapon could lead to disastrous results.   It could lead to those confronted with the weapon inflicting significant violence upon you.

[15]     On its own, I consider the firearms charges would warrant a starting point of around 12 to 18 months imprisonment, particularly given the fact that they were found within the context of a cannabis growing operation.  Having regard to totality purposes, however, I propose to increase the starting point I have selected by six months to reflect the firearms charges.

[16]     This leads me to an end starting point of two years nine months imprisonment before taking into account aggravating and mitigating factors personal to you.

Aggravating factors

[17]     There are aggravating factors in this case in the form of previous offending relating  to  both  cannabis  and  firearms.    This  began  in  1987,  when  you  were convicted on a charge of cultivating cannabis.  Then, in 2000, you were sentenced to a term of imprisonment on charges of cultivating and selling cannabis, as well as being in possession of cannabis seeds.  On the same occasion, you were sentenced to a cumulative sentence of nine months imprisonment on a charge of being in unlawful possession of a firearm.

[18]     Your criminal history tells me you have been involved in cannabis- related activities for a lengthy period.   That may be grounded in the fact that you use cannabis regularly for pain relief, but what it also tells me is that previous sentences for both drug-related offending and firearms offending have had no effect.  You have been prepared to cultivate cannabis on a further occasion, and also to obtain and retain in your possession both a firearm and ammunition.

[19]     Your previous convictions mean that there should be an uplift to the starting point I have adopted.   This is not to punish you again for past offending, but to recognise the fact that your present offending is made that much more serious by your  failure  to  have  regard  to  previous  offences  imposed  on  you  for  similar offending.   I consider an uplift of two months on the cannabis charges and two months on the firearms charges is warranted to reflect this factor.  This leaves me with an end sentence of three years one month imprisonment before taking into account mitigating factors personal to you.

Mitigating factors

[20]     You appear for sentence at the age of 47 years.   The pre-sentence report makes it clear that you have a serious issue with cannabis.  You use about six joints of cannabis a day.  The report records that you had been trying to wean yourself off the drug when you were arrested, and that you have also been trying to get admitted to a residential rehabilitation facility.

[21]     Your  counsel  urges  me  to  postpone  sentencing  so  that  placement  in  an institution such as Odyssey House can be considered.   As I remarked during the hearing, I could only consider that if I first got to a position in which the end sentence of imprisonment was one of two years or less.

[22]     I applaud your desire to rehabilitate yourself.  I consider, however, that your failure to respond to earlier sentences really leaves me with your guilty pleas as the only factor to which I can give discrete recognition in sentencing you.  I note that you first appeared before the Court on 11 February 2013, and ultimately pleaded guilty on 18 March 2013.  Your counsel had, however, advised the Court on 4 March

2013 that resolution was likely.

[23]     In those circumstances, I propose to give you a full credit for your guilty pleas.  This amounts to a discount of ten months, or 25 per cent.  This produces an end sentence of two years three months imprisonment, so a sentence of home detention is out of the question.   The sentence means, however, that you will be eligible for parole in approximately five months because you have now spent four months in custody.

[24]     I would hope that the prison authorities have the ability within the time available to them to ensure that you attend a structured drug rehabilitation course whilst in prison.   If steps are not taken urgently to wean  you from the use of cannabis, it is inevitable that you will appear before the courts again.  Your level of cannabis use is such that it will tempt you to become involved in the cultivation of cannabis again.  Should that occur and should you be caught, you will no doubt be regarded as tending towards recidivism.  You will certainly be a repeat offender, and it is likely that the sentence imposed on you will be even longer than the sentence imposed on you today.

[25]     It is important, as I am sure you understand, Mr Moore, that you take control of the situation and endeavour to take such opportunities as are offered to you whilst in prison to rehabilitate yourself.

Sentence

[26]     I impose concurrent sentences of two years three months imprisonment on both  the  cannabis  charges.     I  impose  concurrent  sentences  of  six  months imprisonment on the charges relating to the possession of the firearm and the ammunition.

[27]     Stand down.

.  Lang J

Solicitors:

Crown Solicitor, Whangarei

Barrister:

S K Ellis, Whangarei