R v Morgan
[2013] NZHC 2549
•1 October 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-092-016127
CRI-2012-092-015428 [2013] NZHC 2549
THE QUEEN
v
RICHARD MORGAN MAHESWARAN MAHENDIRAN
Hearing: 1 October 2013 Appearances:
J MacGibbon for the Crown
G A Harvey for Defendant, Morgan
C R Newton for Defendant, MahendiranJudgment:
1 October 2013
SENTENCING NOTES OF WOOLFORD J
Counsel: Public Defence Service (G Harvey), Manukau.
C Newton, Manukau.
Solicitors: Meredith Connell (J MacGibbon), Auckland
R v MORGAN AND MAHENDIRAN [2013] NZHC 2549 [1 October 2013]
[1] Maheswaran Mahendiran, you appear for sentence having pleaded guilty to one count of cultivation of cannabis,1 which carries a maximum penalty of seven years imprisonment, and one count of possession of cannabis for supply, which carries a maximum penalty of eight years imprisonment.2 Richard Graham Morgan, you appear for sentence having pleaded guilty to one count of being a party to the cultivation of cannabis, which carries a maximum penalty of seven years imprisonment.3
Factual background
[2] Mr Mahendiran, on 27 July 2012 you signed a lease agreement for a commercial property in an industrial area in Howick. On that same day you also commenced a power subscription for that property.
[3] On 28 November 2012, the Police executed a search warrant at the property. They found a sophisticated, custom-built two level cannabis cultivation operation which covered around 30 square metres. The search revealed a total of 227 cannabis plants in various stages of maturity and with heights ranging from just over half a metre to one and a half metres. In total, the cannabis weighed a little more than
27 kgs. The Police also found a 20 litre drum which contained two bags each containing 450 g of high quality cannabis buds. A large number of snap-lock bags and other items involved in the supply of cannabis were also found. Neither of you were present when the Police arrived, but a number of documents and other personal items belonging to you, Mr Mahendiran, were located.
[4] Several hours after the Police arrived on 28 November you, Mr Morgan, were seen driving past the property. You were stopped and both you and your vehicle were searched. On your person the Police found a snap-lock bag containing $800 in mostly $20 denominations and in your car a total of $4,700 was found, again in small denominations. The Police also found two receipts in your wallet, one each from The Warehouse and Bunnings, and subsequent inquiries revealed evidence of
you purchasing items used in the cultivation operation.
1 Misuse of Drugs Act 1975, s 9(1).
2 Misuse of Drugs Act 1975, s 6(1)(f).
3 Misuse of Drugs Act 1975, s 9(1) and Crimes Act 1961, s 66(1).
Personal circumstances
Mr Mahendiran
[5] Mr Mahendiran, you are 30 years old. You are married and you and your wife are about to have your first child together. You have completed tertiary studies in New Zealand and have recently been employed as a truck driver and digger operator. Your employer sees you as a valuable employee and is fully supportive of you. I note that you are enrolled in industry training to further your qualifications and industry knowledge.
[6] You arrived in New Zealand as a refugee from Sri Lanka with your family in
1996 and became a New Zealand citizen in 2000. Your brother was killed in the Tamil conflict in Sri Lanka. You have a number of criminal convictions in New Zealand and it is noteworthy that the earliest of these date back to 2000. Two are of particular relevance, being for possession of cannabis for which you received a fine and community work respectively.
[7] You told the writer of the pre-sentence report that at the time you started getting involved in the present offending you were a heavy user of cannabis and saw this as a way of saving money with prospects for further income. You claim that you had not established any connection with prospective purchasers for bulk amounts of cannabis before the offending was detected and that you have not made any money from this venture. However, you told the report writer that you no longer use cannabis or other illicit drugs and you have completed an eight week Community Alcohol and Drug Services counselling course.
[8] The report writer states that you are highly motivated not to reoffend but on account of your criminal history you are assessed as a medium risk of reoffending. The report writer considers this risk can be reduced by the continued support from your wife and if you take benefit from the counselling. The report writer recommends a sentence of community detention and community work as this will allow you to continue to work and support your family.
Mr Morgan
[9] Mr Morgan, you are 55 years old. You are married and have three sons, two of whom lived with you and your wife at the time of the offending. One of your sons suffers from mild autism and, it seems, your input is required to help maintain his wellbeing. You suffer from a heart-related medical condition for which you are taking medication.
[10] You are a life-long parolee, having been sentenced to life imprisonment for murder in 1986. Following the Police detection of the cannabis growing operation on 28 November 2012, the Parole Board recalled you to continue serving your sentence of life imprisonment. You have now been back in custody for 10 months. This is something I shall return to shortly. Your criminal history is lengthy and you have 12 previous cannabis-related convictions, but I accept that although two were dealt with in 2011, the rest are of an historic nature.
[11] The writer of your pre-sentence report said that you attempted to minimise your involvement in the offending and you claimed that you were only at the property for the purpose of giving legal advice to Mr Mahendiran. I have also read your affidavit in which you claim that you were neither involved in, nor aware of, any commercial aspect of the cultivation operation. You also claim that the cash found on you by the Police is because you do not have a bank account and you use the cash to buy and repair cars for resale. You say that you do not use cannabis.
[12] The report writer recommends a sentence of imprisonment. It is noted that home detention would otherwise be the most appropriate sentence, but because the Parole Board is considering releasing you on an electronically monitored basis, this would be more effective in terms of managing your risk and would electronically conflict with home detention and so imprisonment is the recommended outcome.
Purposes and principles of sentencing
[13] I am required to consider a number of sentencing purposes and principles as set out in the Sentencing Act 2002. The relevant purposes I have particularly taken into account are:
(a) holding you both accountable for the harm done to the community by your dealings with illicit drugs;
(b)promoting in you a sense of responsibility for, and acknowledgement of, that harm;
(c) denouncing your conduct;
(d) deterring you and other persons from such offending; and
(e) assisting in your rehabilitation and reintegration.
[14] I have also taken into account the principles of sentencing as set out in s 8 of the Sentencing Act, particularly s 8(g) which requires me to impose the least restrictive outcome that is appropriate.
Sentencing approach
[15] I now come to fixing the sentence. The approach I intend to follow4 involves considering the circumstances and seriousness of the offending you each committed and setting what is known as the starting point with the aid of any guideline decisions or comparable cases. In your case, Mr Mahendiran, because there is more than one offence, I need to consider which offence to focus on and what effect the other offence would have on that sentence as well. I then need to consider whether there are any relevant aggravating or mitigating features personal to either of you which might increase or reduce the sentence from that starting point. Finally, I must apply an appropriate discount to reflect your guilty pleas.
Submissions
Crown submissions
[16] The Crown submits that this was a complex cultivation operation in that it was relatively sophisticated and there was clear indicia of commerciality such as
snap-lock bags. The Crown submits that the offending is properly characterised as
4 R v Taueki [2005] 3 NZLR 372 (CA); R v Clifford [2012] 1 NZLR 23 (CA).
band two of the Court of Appeal’s decision in Terewi.5 A starting point of around three and a half to four years imprisonment is said to be appropriate for Mr Mahendiran and it is conceded that because Mr Morgan pleaded guilty as a party to the offending, the starting point for him should be a little lower. On account of Mr Morgan’s criminal history, an uplift of three months is sought, but no such uplift is asked for in relation to Mr Mahendiran. The Crown says that a discount of around
15 per cent is appropriate for Mr Morgan’s guilty plea and up to 20 percent for Mr Mahendiran. The Crown also seeks reparation for the damage to the leased property and forfeiture of the cash found on Mr Morgan.
Defence submissions
[17] On your behalf, Mr Mahendiran, Ms Newton accepts that the offending is within category two of Terewi and submits that the appropriate starting point is one of two years and nine months imprisonment. She submits that there should not be any uplift on account of your previous convictions and that the appropriate discount for your guilty pleas is 25 per cent because of the length of time it took for you to receive full disclosure from the Crown. This would bring the end sentence within the realms of a community-based sentence and, Ms Newton submits, such a sentence is appropriate and in line with the pre-sentence report writer’s recommendation.
[18] Mr Harvey, on behalf of you Mr Morgan, submits that your sentence needs to reflect that you were only a secondary party to the offending and as such two years imprisonment is the appropriate starting point. Mr Harvey properly accepts that an uplift of three months is appropriate to reflect your criminal history and the discount for your guilty plea should be 25 per cent. Mr Harvey then seeks a further discount to reflect your remand in custody and he submits that such custody does not meet the definition of pre-sentence detention and so can and should be taken into account at sentencing.
Sentence – Mr Mahendiran
[19] I turn now to your sentences. I will deal with each of you in turn.
Starting point
[20] Mr Mahendiran, although you are for sentence on two counts I do not propose to draw a distinction between the possession and cultivation charges.6 The Court of Appeal has affirmed such an approach and noted that possession and cultivation are frequently inter-related.7
[21] The tariff decision for the cultivation and possession for supply of cannabis is the Court of Appeal’s decision in R v Terewi.8 In that case the Court of Appeal set out three sentencing categories for offenders who cultivate and sell cannabis. It is common ground amongst counsel that this offending falls within category two. Category two applies to small-scale cultivation for a commercial purpose and starting points of two to four years imprisonment are appropriate. I agree that this categorisation is applicable to this offending.
[22] This operation was reasonably sophisticated in that a number of steps had been taken to render the property suitable for the cultivation of cannabis. There was certainly a large degree of premeditation involved, as evidenced by the leasing of a property in an industrial, as opposed to residential, area of town and it is clear that once the lease agreement was entered into, extensive steps were then undertaken to alter the inside of the property to establish this operation. The operation was also clearly predicated on commercial gain.
[23] In assessing the appropriate starting point for this offending, I have taken into account a number of cases in which the cultivation operations are broadly comparable in terms of size and sophistication.9 On the basis of these cases, and the factors discussed earlier, I consider that the appropriate starting point for the totality
of your offending is one of three years imprisonment.
6 See R v Coombes [2013] NZHC 70 at [15].
7 R v Gray [2008] NZCA 224 at [12].
8 R v Terewi, above n 5. See for example R v Keefe CA275/02, 28 November 2008 for an extension of the Terewi categorisation to other types of cannabis offending.
9 R v Knowsley HC Auckland CRI-2010-057-1249, 14 September 2010; R v Coombes, above n 6; R v Porter [2012] NZHC 3033; R v Crawford-Flett [2012] NZHC 2273; McDonald v R [2011] NZCA 97; R v Broughton CA18/05, 9 June 2005; White v R [2010] NZCA 565.
Adjusting the starting point
[24] This starting point needs to be adjusted to take account of any aggravating or mitigating factors personal to you.
[25] The Crown has not suggested that there should be any uplift to reflect your criminal history and I decline to do so.
[26] Ms Newton has pointed to your family support and the fact that you have the ongoing support from your employer as mitigating factors. I also take into account your family-related responsibilities and the fact that you have completed an eight week programme concerning alcohol and drug counselling. These factors all point towards good prospects of rehabilitation and I am prepared to give you some discount to reflect these, although it must be borne in mind that mitigating factors in
drug offending are seen to count for less than they do in other types of offending.10
On account of these factors, I am prepared to reduce your sentence by around four months.
Guilty plea
[27] The final step is to consider what discount you should receive for your guilty plea. Ms Newton says the maximum available discount should be given because although the guilty plea was not immediate, it nevertheless came four days after you received full disclosure from the Police. On account of this, I allow you a discount of 25 per cent.
[28] This results in an end sentence of two years imprisonment.
Least restrictive outcome
[29] This end sentence entitles me to sentence you to home detention or, alternatively, a community-based sentence. A sentence of community detention and community work is recommended in both the pre-sentence report and by Ms Newton. It is said that the strong support from your family and employer, and
the fact that your employer will require drug testing, support such a sentence. I also take into account the principle of sentencing that I must impose the least restrictive outcome appropriate.
[30] Given your personal circumstances, especially concerning your family and the desirability of you remaining in employment, I am satisfied that a community- based sentence is the least restrictive outcome appropriate. It is not unheard of for such sentences to be imposed for offending such as this.11
[31] Mr Mahendiran, would you please now stand. [32] Mr Mahendiran:
(a) On each count of cultivation of cannabis and possession of cannabis for supply, you are sentenced to 350 hours community work. As suggested by the pre-sentence report, I direct that these hours may be converted into basic work and living skills training.
(b)I also sentence you to six months community detention with the following conditions:
(i) the curfew address is as stated; and
(ii) the curfew hours are between 8 pm and 6:30 am, Monday to
Sunday.
(c) I also sentence you to 12 months supervision, a condition of which is that you are to be assessed for participation in a non-residential drug and alcohol counselling programme and, if so directed by your probation officer, you shall attend and complete such a programme to the satisfaction of your probation officer and the programme provider.
(d)Finally, I also make an order for reparation under s 12 of the Sentencing Act in the sum of $2,347.15 to repair the damage caused to the leased premises.
[33] Please be seated.
Sentence – Mr Morgan
Starting point
[34] Turning to you now Mr Morgan, you pleaded guilty to cultivation of cannabis as a party. The starting point I adopt therefore needs to reflect this lesser culpability on your behalf. You claim that you were neither involved in nor aware of any commercial aspect of the operation and you did not receive any profit from the offending. However, in your affidavit you have accepted that you abetted Mr Mahendiran with the operation through both your knowledge of it and because you provided him with items used for cannabis cultivation, and this is reflected in your guilty plea.
[35] You also provided an innocent explanation for your possession of a large amount of cash and this is supported in the affidavits of your wife and son. However, the overall circumstances of this case, including the indicia of commerciality in the offending, tend to suggest that the reasons for your possession of it may not have been entirely as you suggest. The Crown argues that the cash represents a float and was in your possession to facilitate the drug offending. As I said, the surrounding circumstances of this case would tend to support such an explanation for the money, but on the basis of the evidence in the affidavits from your family members, I am not satisfied to the extent that I need to be that the money
is derived from the cannabis offending.12
[36] To reflect your lesser culpability, I consider that the appropriate starting point for your offending as a party is one of two years imprisonment.
Adjusting the starting point
[37] I must now consider whether there are any aggravating or mitigating factors personal to you.
[38] The relevant aggravating factor is your lengthy criminal history, which includes some drug offending, although I accept that many of the convictions are of an historic nature. However, it is common ground between the Crown and your counsel that an uplift of three months imprisonment is appropriate, and I agree.
[39] Your counsel has not suggested there should be any reduction for mitigating factors.
Guilty plea
[40] The final consideration is the credit you should receive for your guilty plea. The Crown submits it should only be 15 per cent, but your counsel says the full discount should be given for several reasons. First, you were initially charged as a principal offender and so you pleaded not guilty, but you changed your plea as soon as the charge was downgraded to make you a party to the offending. Second, disclosure to you was only made on a piecemeal basis and the overall impact of the Crown’s case was not clear until disclosure was complete. On account of these factors, I permit you a discount of slightly over 20 per cent.
[41] This results in an end sentence of 21.5 months imprisonment.
Time spent in custody
[42] There remains the issue regarding the time you have spent in custody. Ordinarily, pre-sentence detention is not to be taken into account in determining the length of a sentence.13 However, pre-sentence detention is not automatically deducted from the length of time served under a prison sentence if the offender is, at the time of the pre-sentence detention, already detained under a prior sentence of
imprisonment.14 If the offender would have been eligible for parole under the earlier sentence but for the remand in custody on the new offence, then the time spent in custody for the later offending should be taken into account in fixing the sentence so as to avoid double punishment.15
[43] In your case, Mr Morgan, you are a life-long parolee as a result of your sentence of life imprisonment for murder. When the present offending came to light and you voluntarily presented yourself, you were recalled to prison on 30 November
2012 and on 25 January 2013 you became the subject of a final recall order. You would still be on parole but for this present offending. Pursuant to s 91 of the Parole Act 2002, the 10 months you have been in custody since being recalled is not administratively taken into account in determining the time served on a sentence.16 I can therefore take it into account at sentencing.
[44] Mr Harvey submits that the period of time I deduct from your sentence should be such a period so that the sentence I impose on you is effectively one of the amount of time you have already served. Section 20 of the Parole Act provides that, in your case, you would be eligible for parole after you have passed the release date for a short term of imprisonment. Twenty one and a half months is a short term of
imprisonment17 and so your release date is half the sentence;18 that is, 10 and three
quarter months. As you have spent 10 months in prison for this cannabis offending already, if it were not for your murder conviction you would otherwise be eligible for parole in approximately three weeks.
[45] On that basis, I agree with the essential point made by Mr Harvey that your sentence should be reduced by 20 months to take into account the length of time you have already spent in custody. As you are not scheduled to be seen by the Parole Board until July 2014, it will be open for you to apply to them for early
consideration under s 26 of the Parole Act.
14 See Parole Act 2002, s 91.
15 See R v Repia CA 12/95, 26 May 1995; R v Beri CA91/96, 25 September 1996; R v Harvey
CA89/01, 19 June 2001; R v Paul CA409/05, 26 April 2006.
16 See also s 82 of the Sentencing Act 2002.
17 See the definition of “short-term sentence” in s 4 of the Parole Act 2002.
18 Parole Act 2002, s 86.
[46] Mr Morgan, would you now please stand.
[47] Mr Morgan, as noted earlier the appropriate end sentence for your offending would be 21 and a half months imprisonment. From that I deduct 20 months imprisonment. Therefore, on the count of cultivation of cannabis as a party, you are sentenced to six weeks imprisonment. I decline to order forfeiture of the money found on you.
[48] You may both stand down.
……………………………….
Woolford J
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