R v Parrott HC Rotorua CRI-2010-070-4119

[2011] NZHC 348

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-070-4119

THE QUEEN

v

GRANT BOYD PARROTT

Appearances: H M Booth for the Crown

V T Winiata for the Prisoner

Judgment:      2 February 2011

SENTENCING NOTES OF PRIESTLEY J

Counsel:

H M Booth, Crown Solicitors, DX HP 40041, Tauranga 3141. Fax: [phone]. Email: [email protected]

V T Winiata, P O Box 13342, Tauranga 3141. Fax: [phone]

Email: [email protected]

R V PARROTT HC ROT CRI-2010-070-4119 2 February 2011

[1]      Because of a highly productive discussion with counsel and the common ground which has been reached I need not provide detailed sentencing notes.

[2]      The prisoner faced two charges in the Tauranga District Court.   One was cultivating cannabis, laid under the Misuse of Drugs Act.   The other was theft of electricity,  laid  under  s 223(b)  of  the  Crimes Act.    Both  those  charges  carry  a maximum term of seven years imprisonment.

[3]      The prisoner is currently aged 43, is single, and resides with his mother on the outskirts of Katikati.  There the family have for many years operated a family orchard business.  In May 2010 the police executed a search warrant at the address. A sophisticated cannabis growing operation was found, spread across three separate rooms in an old milking shed. The summary of facts, correctly in my view, describes this operation as sophisticated.  The plants were well manicured and were tended in such a way as to maximise their growing potential.  Additionally the rooms were lined.  There were heat lamps, extractor fans, power timers, a temperature controller, and an irrigation system.   There are in total some 45 plants in various stages of development growing across four growing cycles.  Also discovered were bags of old cannabis seedlings.

[4]      An aggravating feature which is properly subject to the theft charge is that power to the shed had been rigged in such a way as to bypass the mains supply.  This is a common feature in sophisticated growing operations in rural areas so that cultivators can avoid the obvious questions which would flow from sudden spikes in historic electricity usage.

[5]      The police have carefully calculated the value of the stolen electricity, the victim being Trust Power.  The police calculate the loss at slightly over $5,800.  Mr Winiata’s submissions on behalf of the prisoner level certain criticisms at some of the appliances used.   He submits the actual theft was somewhere in the region of

$2,000 or just under.  Although counsel were embarked on a disputed facts hearing on this topic, in the circumstances it is unnecessary.

[6]      The police estimate of the potential yield of the growing operation, based on the assessment that each plant would provide 16 ounces of dry female cannabis head, was somewhere in the region of $140,000 to $200,000.  This figure was estimated on an annual yield of 40 pounds of cannabis head throughout the year.

[7]      The prisoner contests this.  He, according to the presentence report and his own admission, has been addicted to cannabis for something like 32 years.   His explanation was that he decided to embark on this growing operation mainly to provide for his own use and to avoid the inconvenience of having to buy cannabis on the illicit market.  He cultivated it himself in the bush.

[8]      Turning now to the prisoner’s personal circumstances.   Although a single man he seems to have acquired four children aged between 11 to 20 with whom he has weekly contact.   He was until October a valued assistant for his terminally ill father.  His mother is now widowed and has assumed the primary responsibility of running the family orchard.  I accept that a custodial sentence would have an adverse impact on the prisoner’s mother in this recent stage of her bereavement.

[9]      The prisoner asserts he does not drink alcohol although he has alcohol related convictions in the past.  He admitted to the probation officer that he had from time to time experimented with methamphetamine and ecstasy.

[10]     The prisoner’s previous convictions include one for cannabis possession and one for permitting premises to be used for drug offences.  Those, however, are some

20 years old.

[11]     To his credit the prisoner has approached the Salvation Army for counselling. He has attended four sessions in June and July of 2010.  He said he has maintained good progress.  He says there has been some mutual agreement with his counsellor that he does not need further treatment.

[12]     The  presentence  report  relies,  in  part,  on  the  family’s  awareness  of  the prisoner’s conduct and his assertions that he has stopped cannabis use and assessed his risk of re-offending as very low.

[13]     I expressed some scepticism about this.   Historically the prisoner seems to have gravitated from alcohol use to persistent cannabis use.  There are huge risks attendant on his candid admission that he has sampled methamphetamine.  However, I regard you, Mr Parrott, as being on a cusp and you will be aware that if you return to drug use in any form you will spiral rapidly downhill and, inevitably, if you offend you will go to jail.  Do you understand that?

[14]     Mr Parrott:  Yes.

[15]     The value of the plants involved was between $35,000 and $50,000.  I intend to sentence on that basis.

[16]     There are similarities so far as volumes are concerned between this case and R v Corcoran, [1] and R v Hawke.[2]   I have also been helpfully referred, by Ms Booth, to Venning J’s decision of R v Pearce.[3]    This latter decision is of some relevance because home detention was the end sentence in a situation where offending was arguably more serious.

[1] R v Corcoran HC Blenheim CRI-2006-006-948, 8 November 2006 (Gendall J).

[2] R v Hawke HC Auckland CRI-2009-044-10006, 24 August 2010 (Potter J).

[3] R v Pearce HC Whangarei CRI-2008-088-002980, 9 December 2008.

[17]     It is classic law that sentencing for cannabis offending is governed by the tariff case of R v Terewi.[4]    I am totally satisfied on the basis of the facts that the prisoner’s offending sits inside Terewi category 2.   The start point of two to four years imprisonment is generally appropriate.  Given the volumes involved this sits in approximately the middle of that band.

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

[18]     The prisoner is entitled to certain mitigating credits.   I cannot treat him as having kept himself free from drug abuse since 1990 because his own admissions counter any such suggestion.   He has, however, been recently bereaved.   He has clearly been a great support to his family in a difficult time.   He entered pleas of guilty in the Tauranga District Court in a timely fashion.  Undoubtedly those pleas

would have been earlier but for his father’s terminal illness.

[19]     The prisoner is also in a position to borrow, through his family, some $2,500 to make reparation to Trust Power.  Some caution must be exercised so as to avoid any impression that people can “buy” more lenient sentences through offers to make amends or reparation sentences.

[20]     Having regard to ss 7 and 8 purposes and principles and in particular the need to  assist  the  prisoner  in  his  rehabilitation  at  this  critical  time  I  consider  some leniency is justified.

[21]     The start point which I unhesitatingly adopt would be one of three years.  A total of a one year credit (one third) to reflect first his early guilty plea, secondly the family situation to which I have referred, thirdly the effort the prisoner is making to rehabilitate himself from pernicious drug use and finally his offer of amends bring me to the two year end sentence.   That is a short sentence for Sentencing Act purposes which can trigger, in appropriate cases, home detention.

[22]     I note Ms Booth’s responsible submission that the Crown would not oppose home detention as an end sentence.   This is for you, Mr Parrott, a very lenient sentence and if you abuse it you will go to jail.

[23]     Stand up please.

[24]     Thus on the charge of cultivating cannabis I sentence you to home detention for a period of 11 months.

[25]     On the charge of theft of electricity I sentence you to home detention for a period of five months.   Both those terms of home detention are to be served concurrently.

[26]     Additionally I make a reparation sentence that you are to pay within 30 days the sum of $2,500 to your victim, Trust Power.

[27]     I also impose the following terms and conditions and direct that the Probation Service,  who  will  be  monitoring  your  home  detention,  are  to  act  on  these accordingly.

(a)      You are to refrain from consuming any alcohol or consuming any illegal substances or drugs.

(b)      You are to submit to random testing in that regard.

(c)      You are to attend and carry out a suitable alcohol and drug assessment programme as directed by your Probation Officer.

(d)You are to adhere to the terms and requirements of the programme provider.

(e)      You are to travel directly from this Court to 78 Turner Road, Katikati and stay in the house at that address to await the arrival of a probation officer and a security officer.  You are to reside at that address for the duration of the sentence.

[28]     I also direct that within five weeks the Probation Service is to file with this Court, marked to my attention, a brief report confirming compliance with these conditions and in particular compliance with the reparation sentence.

[29]     This direction is effectively judicial monitoring as authorised by s 80ZJ of the

Sentencing Act.

[30]     For the benefit of any subsequent judge I sound a clear warning to you Mr Parrott that should you breach any of those conditions you are to be brought before this court to be resentenced.  Such a new sentence will undoubtedly be a custodial sentence of some duration.

[31]     Without imposing it as a direction, I express the hope that the monitoring regime can be modified from time to time to enable the prisoner to assist his mother on the orchard.

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Priestley J