R v Nightingale

[2012] NZHC 2512

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-079-000810 [2012] NZHC 2512

THE QUEEN

v

BRADLEY STEPHEN NIGHTINGALE

Charge:           Cultivating cannabis

Plea:               Guilty

Appearances: R Annandale for Crown

P T Attwood for Prisoner

Sentenced:     27 September 2012

12 months’ home detention;  300 hours community work

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Hamilton

Copy to:            P Attwood, Tauranga

R V NIGHTINGALE HC HAM CRI-2011-079-000810 [27 September 2012]

[1]      Bradley Stephen Nightingale, you have just turned 23.  You are for sentence in this Court having pleaded guilty to cultivating cannabis.  The maximum penalty for that offence in this Court is seven years’ imprisonment.

[2]      On  23  December  last  year  the  police  executed  a  search  warrant  on  an unrelated matter at the address you were living at, at the time.  During the course of the search the police instigated a search under the Misuse of Drugs Act 1975 because they located a cannabis growing operation run by you.   There were two separate growing areas within the garage of the property situated below the house.  The areas had  been  lined  and  painted  white  and  had  a  large  number  of  growing  lights suspended from the ceilings of both rooms.   There were fans used to regulate the temperature.  The two areas were separated and distinct in that one was used to raise cannabis  seedlings  before they were moved  to  the other area  to  be  grown and nurtured further.   Each plant was planted in individual cells.   The plants showed signs of recent attention and care.  Overall there were 600 cannabis plants located in various stages of growth from approximately 100 mm high through to mature plants of over one metre in height.

[3]      When you were spoken to you accepted responsibility for the plants and the operation. You said they were for your personal use.

[4]      In  addition  to  the  bare  summary  of  facts  further  information  has  been provided which I am advised you accept.  That shows that of the approximately 600 cannabis plants, 24 were large, between 80 cm and 1.1 metres in height.  There were also other indicia of a growing operation.   However, as counsel for the Crown accepted, this was not the most sophisticated type of operation and most of the plants could be described as youthful.

[5]      Because  of  the  number  of  the  plants  and  the  set-up  this  was  clearly  a commercial operation or potentially a commercial operation and you must be sentenced on that basis.  However, I accept Mr Attwood’s submission that there was no evidence of any financial return or yield found during the course of the search, which suggests that at least at that stage there had been no return to you.

[6]      From that point of view perhaps you are fortunate the operation was shut down when it was.

[7]      The  probation  officer  records  that  you  do  have  convictions  for  minor offences.  I consider them entirely irrelevant to the exercise for the Court today.  You say you sincerely regret what you were involved in and regard it as a bad mistake. You say you have learnt your lesson.  In relation to that I am advised that your bail has been recently revoked and you have spent five to six weeks in custody.  You say that you have ceased the use of cannabis and want to lead a life away from the drug. The probation officer reports that your primary offending factors were your self- reported  heavy  use  of  cannabis,  your  anti-social  associates  and  a  sense  of entitlement.  You said you could not afford to buy cannabis and decided to grow it even though you knew it was wrong.

[8]      The probation officer notes there are no barriers to you being able to comply with  any appropriate sentence.    If the Court  was of the mind  to  impose home detention along with community work you consented to such.   You have also proposed an address which is suitable.   Importantly, in that regard, you are now living in different circumstances.  You are living in a small flat with your partner. You have been with her for about six months.   She was not associated with the earlier offending.

[9]      The probation officer records that your partner has supported you in ceasing the use of cannabis.  She has never used drugs herself and is very clear she would not tolerate your use of cannabis in the future. You completed an apprenticeship as a builder and have worked as a builder from time to time and you would like to keep doing so.   You are involved in the community to the extent you play rugby for a senior team and you have other outside interests.

[10]     The probation officer notes that your problem seems to have been that you are easily led by negative peer influences.   I have also received a number of references supportive of you.  They explain your personal background in some more detail and also record the support that you have from extended members of your family.

[11]     In  sentencing  you  I  am  required  to  take  into  account  the  purposes  and

principles of the Sentencing Act.  In this case, the particularly relevant factors are:

to make you accept responsibility for your offending;

to deter you and others from offending in this way;

to denounce this sort of offending which has the potential for an impact on the community by making drugs available to the community;  and

to consider your rehabilitation and reintegration into the community.

[12]     I am also required to take account of the gravity of the offending, which is recognised by the maximum penalty I have referred to and the fact you are in this Court for sentence.  I am also required to consider your culpability and other relevant authorities, so that the sentence I impose is consistent with other sentences imposed on people for similar offending.

[13]     The Crown submit that a starting point for sentencing you is between three years and three years, three months.  Mr Attwood submits that a starting point of two years six months could be taken but accepts it may be higher.

[14]     The Court of Appeal in R v Terewi[1]  established bands for sentencing of this nature.  Both counsel accept and I confirm that your offending falls into the second band, which provides for a starting point for sentences of between two and four years’ imprisonment.

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

[15]     I also have regard to the cases counsel have  referred to of R v Loretz;[2]

R v Yates;[3]     and R v Haenga[4]  but as discussed with counsel each case must be assessed in its own circumstances.

[2] R v Loretz HC Whangarei CRI-2011-029-153, 9 September 2011.

[3] R v Yates HC Whangarei CRI-2009-029-1305, 22 April 2010.

[4] R v Haenga HC Gisborne CRI-2006-065-86, 26 April 2007.

[16]     In your case there were a substantial number of plants.  I take into account that most of them were youthful.   There were a limited number of larger, more mature plants.  This was not the most sophisticated operation of its kind and whilst potentially  commercial  I  accept  there  was  no  evidence  that  you  received  any financial return.

[17]     In the circumstances I take a start point for your offending in this case two years, nine months’ imprisonment.  I am then required to consider aggravating and mitigating personal circumstances. There are no aggravating personal circumstances.

[18]     In  relation  to  matters  of  mitigation,  I  am  aware  of  the  Supreme  Court decision in Jarden v R.[5]   In your case as the Supreme Court indicated in Hessellv R6[6]a reduction may be given for genuine remorse separate to the guilty plea.  I accept from everything that has been put before the Court that you are genuinely remorseful for what you have done and you do want to turn your life around.  I also accept that at the age of just 23 you are a young man who has the potential to learn from this

mistake and move on.  I apply a credit of two months for your remorse and age.

[5] Jarden v R [2008] 3 NZLR 612.

[6] Hessell v R [2010] NZSC 135.

[19]     The Crown concede that a substantial discount for your guilty plea should be allowed, albeit the Crown case was a strong one.  I take into account that at a very early stage when first spoken to you acknowledged your responsibility and your guilty  plea.    A further  reduction  of  something  between  20  and  25  per  cent  is appropriate.

[20]   That leads the Court to the position where a sentence of two years’ imprisonment would be appropriate.  I then am directed to consider whether home detention is available in this case.  That, if I might say, is the most difficult aspect of your sentence Mr Nightingale.  When I came into Court, having read the file, I had in mind that home detention was not an appropriate sentence for you.

[21]     However, during the course of submissions and reflecting further on this matter, I accept by the narrowest of margins that home detention is an appropriate

sentence in your case.  I consider the requirement for denunciation and deterrence is met by the starting point I have taken.  I take into account that your circumstances have changed.  You are living at a different address.  You have the support of your partner, who was not associated with your earlier offending.  I also take into account to the extent that you would learn any lesson from spending time in custody that that lesson will already have been learnt.

[22]     I also take into account that the damage you have done to the community by your offending can be addressed by a term of community work as well as home detention.

[23]     Mr Nightingale please stand.  On the charge of cultivation of cannabis you are sentenced to home detention for a period of 12 months.  You are also sentenced to 300 hours of community work.  You are to travel directly to 12A Seddon Avenue, Waihi immediately and await the arrival of a probation officer and electronic monitoring company personnel.

[24]     You  are to  attend  a drug  assessment  and  complete any treatment  and/or counselling as instructed by the probation officer to the satisfaction of the probation officer and to the programme provider.

[25]     It goes without saying that you are not to possess or consume drugs other than those prescribed by a doctor or medical professional.

[26]     Mr Nightingale as I said you were right on the cusp of spending a lengthy term of imprisonment.  It is up to you whether or not you are back before this Court

in those circumstances again.  Stand down.

Venning J