R v Nuttall

[2013] NZHC 544

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-10651 [2013] NZHC 544

THE QUEEN

v

DAVID ROBERT ANTHONY NUTTALL

Hearing:         19 March 2013

Counsel:         M R Galler for Crown

M A Edgar for Prisoner

Judgment:      19 March 2013

SENTENCING REMARKS OF LANG J

R V DAVID ROBERT ANTHONY NUTTALL HC AK CRI-2012-092-10651 [19 March 2013]

[1]      Mr  Nuttall,  you  appear  for  sentence  today  having  pleaded  guilty  in  the District Court to a charge of cultivating cannabis.   The maximum penalty for that offence is seven years imprisonment.  The District Court declined jurisdiction and committed you to this Court for sentence because its jurisdiction was limited in terms of the sentence that it could impose on you given that you pleaded guilty at an early stage.

The facts

[2]      The facts of your offending are to be taken from an agreed summary of facts, supplemented by a statement from a police officer who has updated the summary. This records that you had leased a warehouse unit in an industrial area in East Tamaki in or about August 2010.  Over the next two years you set about converting that property into a purpose-built cannabis growing operation.

[3]      I am told that your landlord became suspicious in August 2012 when he went to the property and saw a ventilation unit that he obviously did not recognise.  He then alerted the police, and they obtained a search warrant in respect of the property. They then waited outside the property until you arrived.  That occurred on 10 August

2012.

[4]      The police then searched the premises and found a very large scale cannabis- growing operation inside.   They found that internal rooms had been constructed within the warehouse using gibralter board.   In total, there were six rooms, all of which had different purposes.   There were two large growing rooms with three distinct growing areas.  There were also rooms that the police described as a “mother room”, a “mother strain room”, a drying room and an upstairs room.  The unit also had a garage attached to it.

[5]      In the first growing room the police found a total of 435 cannabis plants. These varied in height between 18 and 91 centimetres.  The room also contained a considerable amount of equipment designed to ensure that growing conditions were as close to optimum as possible.   These included dehumidifiers, fans, a carbon dioxide extractor, carbon extractor fans, lighting lamps, air conditioning units, a

thermostat, thermal thermometers, digital timers, air pumps, trays, power heads and multi plugs.

[6]      The second growing room contained a total of 188 plants, ranging in height from 75 to 100 centimetres.  It also contained 61 seedlings ranging in height between

40 and 70 centimetres.  This room also contained a considerable amount of purpose- built equipment designed to ensure that the plants grew in an ideal environment.

[7]      In the drying room the police found 110 plants that had been harvested.  They also found drying trays containing cannabis buds.  This room, too, had equipment including a carbon filter with an extractor fan, ducting, a digital thermometer, an oil heater and a multi plug.

[8]      In the mother strain room there were 20 buckets of cannabis plants ranging in height from 35 centimetres to 48 centimetres.  There were also six small cannabis plants and one mother plant.   In addition, there were 62 seedling plants, some of which were labelled with the name of the strain of the cannabis in question and a date.  Again, this room contained sophisticated equipment including hanging lamps, transformers, a fan, a water tank, grow trays, seedling trays, an air pump, a heater pad, a digital thermometer and a temperature unit.

[9]      The mother room contained 18 mother plants ranging in height from 80 to

130 centimetres.   There were also two mother plants less than 20 centimetres in height, and 669 seedlings.   The seedlings had seven fluorescent lights over them, obviously to provide heat and light.  Other equipment included lamps, digital timers, digital thermometers, a thermal controller, air pumps, an extractor fan with ducting, a carbon extractor, multi plugs, buckets and hosing.

[10]     In the upstairs room hallway and the remainder of the unit the police found documents and cannabis-related magazines.   They also found plant nutrients, chemicals  and  a very large  amount  of miscellaneous  equipment  consistent  with having been used or acquired for the use in the cultivation of cannabis.

[11]     In the garage the police located a trailer that contained 31 rubbish bags. These contained 274 plant roots, 48 seedling cubes, 29 clone plugs and cannabis cabbage leaf material.

[12]     In total, therefore, the police seized 1,592 cannabis plants.  These comprised

861 mature cannabis plants and 731 cannabis seedlings.

[13]     It is obvious from what  I have said that  you  had acquired a very large quantity of sophisticated equipment to ensure that your operation was successful. The  statement  from  the  police  officer  records  that  all  of  the  equipment  in  the property was of high quality.

[14]     The police estimate that each of your harvests would have produced 265 plants, and that you could have completed 18 to 21 grows per year.   This would result in between 4,470 and 5,565 plants produced each year.  The police estimate the cash yield of this crop as being worth between $891,000 and $1 million per year.

[15]     During  the  hearing  today,  I have  had  extensive  discussion  with  counsel regarding the quantity of cannabis the police found and the potential yield of that material.  You dispute the number of grows that could be carried out.  You accept that 265 plants could potentially be harvested from each of the two growing rooms. You say, however, that each growing cycle would take approximately two months and this would result in approximately 3,200 plants being produced per annum.  You say, from experience, that each plant would produce about 11.7 grams of cannabis, whereas the police estimate is that 24 grams of cannabis could be produced from each plant.   In total, you accept that the operation could produce approximately

35,000 grams of cannabis plant which, when sold at wholesale level at $2,800 a pound,  would  result  in  annual  income  of  approximately $229,180.    The  police estimate, on the other hand, would see the same operation using these figures producing approximately $286,000 by way of turnover.

[16]     You emphasise that these figures relate only to the potential of the operation. You say that you had a great deal of difficulty setting it up, and that the operation was beset by problems and failures from the outset.  This means that the figures that

I have just mentioned are very much potential figures, and that you did not realise anything like them as a result of past growing experience.   You also say, through your counsel, that the operation was extremely expensive to set up and that any money you made from selling cannabis was plowed back into the operation.   In addition, you used funds generated from your landscaping business to acquire the necessary plant and equipment to enable the operation to be set up and maintained.

[17]     I have given consideration to the issue of whether or not I need to hold a disputed facts hearing to resolve the difference between your contentions in relation to the quantity and value of the cannabis that the operation could potentially produce and that put forward by the Crown.  In the end, I have concluded that this issue does not make any material difference in terms of the essential conclusions I need to make in order to pass sentence on you.   For that reason I have not delayed sentencing further to determine this issue.

Sentencing Act 2002

[18]     In any case involving commercial drug cultivation and dealing, the primary issues for the Court are those of deterrence and denunciation.  People who become involved in commercial drug-dealing and cultivation need to know that if they are caught significant and substantial penalties will be imposed.  That is really the only way in which the courts can play a part in waging the war against commercial drug- dealing.

[19]     Having said that, it is necessary for me to ensure that I impose a sentence that is broadly consistent with those imposed in similar cases.  I use the word “broadly” here,  because  the  circumstances  of  no  two  cases  are  ever  exactly  the  same. Secondly, I need, so far as I can, to impose a sentence that recognises and provides for your rehabilitation and reintegration into the community.

Approach

[20]     The procedure that I will follow in fixing the sentence to be imposed on you involves three separate stages.  First, I need to fix a starting point for the offending.

This is the sentence that would be imposed having regard to the nature and gravity of the offending itself and without taking into account factors that are personal to you. I then need to consider whether that starting point should be increased to reflect aggravating factors personal to you.  Finally, I turn to consider the extent to which the starting point should be reduced to reflect mitigating factors personal to you.

Starting point

[21]     Both  counsel  agree  that  the  starting  point  in  any  case  involving  the commercial cultivation of cannabis is governed by a decision of our Court of Appeal in a case called R v Terewi.[1]    In that case the Court gave guidance regarding the starting points to be applied in cases involving drug cultivation and dealing.

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

[22]     Counsel agree that the size and nature of your operation falls within Category

3 identified in R v Terewi.  This means that the starting point will begin at four years imprisonment.    This means  that  the range of  starting points  within  which  your offending sits will be somewhere between four and six years imprisonment.

[23]     There is some difference between counsel regarding the starting point to be applied in respect of your offending.  The Crown submits that the lowest possible starting point is five years imprisonment, and that your offending could easily justify six years imprisonment.  Your counsel, on the other hand, asks the Court to begin with a starting point of four years imprisonment, although in his written submissions he concedes that the range is somewhere between four and five years imprisonment.

[24]     Obviously this was a very large cannabis operation because of the sheer number of plants involved.  It also had hallmarks of sophistication in the form of the accessories and equipment to which I have already referred.   It involved the conversion   of   a   commercial   warehouse   into   a   substantial   cannabis-growing operation.   The operation had already been in existence for something up to two years when the police executed the search warrant.  I accept, however, that it would

have taken a considerable time for you to have carried out the alterations to the

warehouse, and then to have accumulated the various items of plant and equipment that the police found there.  For that reason I accept that the operation may not have produced anywhere near its potential by the time the police found it.

[25]     I also bear in mind your counsel’s submission that the second growing room was in its infancy, and that it had not begun growing cannabis anywhere near the available potential.

[26]     Having said that, the nature and size of the operation are such that I do not consider it can be properly regarded as falling at the bottom end of Category 3 in Terewi.   When I came into Court I had in mind a starting point of five years six months imprisonment.  Having heard your counsel’s submissions, I am prepared to reduce that to five years imprisonment.

Aggravating factors

[27]     I now need to consider aggravating factors that are personal to you.  The only aggravating  factors  are  those  relating to  previous  convictions.    You have some previous  convictions,  but  nothing  that  approaches  the  offending  for  which  you appear for sentence today.  For that reason, I do not propose to increase the starting point I have selected to take into account previous convictions.

Mitigating factors

[28]     The final stage of the sentencing process is the need to take into account mitigating factors personal to you.

[29]     In this case your counsel urges that I take into account three factors.  Before dealing with those I propose to say something about your background, because it places your offending in perspective.

[30]     You appear for sentence today at the age of 45 years.  From the material that I have been provided with, it is clear that your childhood has been marked by drug use within your family and that this has had a traumatic effect on you and other

members of your family.  You became involved in drug use at an early age, and it is clear that it had a significant effect on you for much of your early life.

[31]     In  or  about  2001,  you  took  steps  to  rectify  the  situation.    You  became involved in, and completed, a Higher Ground drug rehabilitation programme and that is no mean feat.  You then remained drug-free for around nine and a half years.  At that point you struck a very troubled patch in your life.   You began using drugs again.     Your  marriage  had  failed,  and  your  business  was  heading  towards bankruptcy.  All this occurred while your new partner was pregnant with your first child.

[32]     It was in those circumstances that you decided to find a way to cure all your problems by setting up a commercial cannabis-growing operation.   You then, in August 2010, rented this warehouse and put your plan into effect.   You now acknowledge that that was a disastrous decision for you.   It has meant that, rather than help your partner and young child, you have placed yourself in a position where you will be removed from them for a considerable period.  You are indeed fortunate that you have so many family and close friends who stand by you in this hour of need.  Many of them are here today, and the material on the file makes it clear that they will be with you through the coming years and the trials and tribulations that they will bring.

[33]     You have now attended a further Higher Ground programme.  I have material from the programme to confirm that you successfully completed it, and that you are now viewed as a role model.   You have also begun attending a post-graduation programme at the Wings Trust.  I acknowledge that further intervention of this type is critical for a person in your position.  Your counsel submits that the actions that you have taken recently mean that the Court can give a discrete discount to reflect both  the  remorse  that  you  are  feeling  over  the  predicament  in  which  you  find yourself and the grief that you have caused everybody else, and the steps that you have taken to rehabilitate yourself.

[34]     Not that long ago, the courts routinely said that personal factors could count for  little  in  cases  involving  serious  drug  offending.    The  courts  have  recently

modified that stance, and have recognised that personal factors can be taken into account when appropriate.   I consider that genuine and serious steps towards rehabilitation are issues that the Court must take into account when imposing sentence; otherwise there would be no incentive for anybody to take those steps.  It must also provide an incentive to a person in your position to remain drug-free in the future.

[35]     I am limited, as counsel recognise, as to the extent of any discount I can apply in respect of this factor.  Counsel for the Crown points out that the discount generally available is somewhere in the region of five to ten per cent.  I propose to reduce the starting point I have selected by eight months to reflect that factor.

[36]     This leaves a sentence of four years four months imprisonment before taking into account the remaining mitigating factor that is available to you.  This, of course, is your guilty plea.   You entered a guilty plea at the earliest opportunity in the District  Court.    Again,  I  am  constrained  by  higher  authority  in  relation  to  the discount that I can give for a guilty plea.  In a case called Hessell v R,[2] the Supreme Court has said that sentencing Judges are not permitted to apply a discount of not less than 25 per cent to reflect guilty pleas even when they reflect true assumption of responsibility and come at an early stage.   Both counsel agree that that maximum

discount is available in your case, and I propose to apply it.

Sentence

[2] Hessell v R [2010] NZSC 135

[37]     On the charge to which you have pleaded guilty you are sentenced to three years three months imprisonment.

Destruction order

[38]     I make an order for the destruction of all of the drug-related paraphernalia that the police found in your possession.

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:

M Edgar, Auckland