R v Porter

[2012] NZHC 3033

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-032-001887 [2012] NZHC 3033

THE QUEEN

v

RIKIHANA JAMES PORTER

Counsel:         A J Ewing for Crown

C J Tennet for Prisoner

Sentence:       15 November 2012

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]Mr Porter, you appear for sentencing on three charges: (1)     Producing cannabis oil;1

(2)       Possession of cannabis for sale;2   and

(3)       Cultivating cannabis.3

1      Misuse of Drugs Act 1975, ss 6(1)(b) and 6(2)(b), maximum penalty 14 years’ imprisonment.

2      Misuse of Drugs Act 1975, ss 6(1)(f) and 6(2)(c), maximum penalty 8 years’ imprisonment.

3      Misuse of Drugs Act 1975, s 9(1) and (2), maximum penalty 7 years’ imprisonment.

R V PORTER HC WN CRI-2012-032-001887 [15 November 2012]

[2]      You are to be sentenced in this Court because the District Court declined jurisdiction to sentence you because of the of two year limit of imprisonment that can be imposed by the District Court for offending of this kind.

[3]      I have been presented with a wide range of options as to what your sentence should be.  The Crown submits that I should adopt a starting point of four and a half years’ imprisonment.    The  pre-sentence  report  recommends  home  detention.   A sentence of home detention can only be considered if your end sentence is two years’ imprisonment or less and I hope that your expectations have not been unduly and unfairly raised by the suggestion contained in the pre-sentence report.

[4]      In sentencing you I will:

(1)       describe your offending;

(2)       explain the starting point for your sentence;

(3)consider what adjustments can be made to the starting point to affect circumstances that are personal to you;

(4)       consider what discount can be applied in response to your guilty plea;

and

(5)       explain your end sentence.

Your offending

[5]      In June this year the police executed a search warrant at the address where you were then living.  It is an industrial building in Seaview.

[6]      Next to your bed the police located two large plastic buckets, each containing three shopping bags full of cannabis head. There is some dispute about the weight of that cannabis.

[7]      At  your  premises  the  police  located  five  separate  growing  rooms,  each containing various quantities of cannabis plant.   In total there were 234 cannabis plants (comprising 133 seedlings and 101 plants of varying sizes).   You do not dispute these quantities.

[8]      In declining to sentence you the learned District Court Judge described your cultivation operation as a “sophisticated cyclical system of ongoing cultivation and harvest ...”.  That was an accurate description of your activities.  The photographs produced to me show that the growing rooms had:

(1)       numerous light shields; (2)       pedestal fans;

(3)       transformers; (4)           air filters;

(5)       ventilation systems;  and

(6)       growing trays/racks.

[9]      The  police  located  a  hydroponic  nursery  area  which  had  96  seedlings growing in plastic trays.  The trays were connected to tubing.  Nutrients were being pumped to these plants.  The police also found an insulation tent.  Inside the tent was a heater, a fan, an air filter and two drying racks.

[10]     On a table inside the living area the police found a system used to extract oil using Isopropyl alcohol. Two bags of empty capsules were located at that site.

[11]     While you take issue with the weight of the cannabis located by the police near your bed, you have not challenged the police assessment that plants of this kind can be harvested every three months.   The police have calculated that the annual value of the cannabis grown by you is likely to exceed $400,000.  The police also

estimate the electrical equipment used in your enterprise would have cost in excess of $30,000.

Starting point

[12]     I agree with the District Court Judge that in the circumstances of your case, the principal offence is cultivating cannabis, which, as I mentioned earlier today, ironically carries the lowest maximum sentence of the three offences that you have pleaded guilty to.  The scale and nature of your cannabis cultivation activities was significantly more serious than your offending in relation to the two other charges (regardless of the weight of the cannabis head located by your bed).

[13]     In setting the starting point for cannabis offending, guidance is provided by the Court of Appeal in the decision of R v Terewi.4

[14]     The Crown submit that your offending falls within band three of Terewi and that accordingly, a starting point of four and a half years’ imprisonment is merited.

[15]     When declining jurisdiction, the District Court Judge assessed your offending as being in the upper end of band two of Terewi, meaning that a starting point of between three to four years would be appropriate.   The District Court Judge who made that assessment is a very experienced Judge and a former Crown Solicitor, with considerable experience in assessing the gravity of cannabis offending.

[16]     I agree with the District Court Judge’s assessment.   In my judgement your offending is on the cusp of bands two and three of Terewi.   I have reached this conclusion because of my own assessment of the scale and sophistication of your cultivation operation, and the degree of commerciality involved in an operation of this scale.  However, I do note the absence of electronic scales and other items in your possession that would ordinarily indicate a commercial venture.

[17]     On this basis I have carefully considered all options and concluded that I

must set a starting point a little over three years.  I have opted for a starting point of

three years three months’ imprisonment based on my comparison of your offending with cases of a similar nature.  I have been particularly persuaded by a judgment of the Court of Appeal.5   In that case the police found a sophisticated growing operation at the appellant’s home.  Two wardrobes had been set up with extractor fans and heat lamps.  Other equipment included fans, lighting equipment, a hydrozone controller and  an  ozone  generator.   A total  of 106  plants  were located (76  seedlings and

30 larger  plants)  and  the  potential  value  of  the  cannabis  in  that  case  was approximately $150,000. The Court of Appeal classified that case as being at the top of Terewi band two. The Court of Appeal said that a starting point of three and a half to four years’ imprisonment was required.

Adjustment for personal circumstances

[18]     I have opted not to increase the starting point to reflect the fact that you have also pleaded guilty to two other drug offences.  In my assessment that offending does not in itself warrant an increase in your sentence.

[19]     I have also considered the fact you have previous convictions for cannabis offending.  However, that offending occurred a quarter of a century ago.  I do not propose to alter your sentence because of your prior convictions.  However, I cannot also treat you as being a first time offender.  I recognise that you appear to have an addiction to cannabis and that appears to be linked to your chronic pain issues. However, this is not a factor that can reasonably be considered as a mitigating factor for sentencing purposes.  I also note that you have a capacity to make something of your life.   I am impressed by your university accomplishments to date and I encourage you to continue to fulfil your potential.

Guilty plea

[20]     To your credit you have accepted responsibility for your offending. You have admitted  your  guilt  at  an  early  juncture.    I  propose  to  give  you  a  discount  of

10 months (25 per cent) to reflect your acknowledgement of your wrongdoing.

Overall assessment

[21]     In reaching a final sentence I have reflected on the overall appropriateness of that sentence.  In my judgement the sentence that I must impose is an appropriate response to your offending.  It is a sentence that:

(1)       holds you accountable for your offending;6

(2)       denounces your conduct;7

(3)       should deter others from offending in a similar way;8

(4)       is comparable to sentences imposed for similar offending;9   and

(5)is   the   least   restrictive   sentence   that   can   be   imposed   in   the circumstances.10

[22]     In light of the sentence I think it is appropriate for me to remit all outstanding fines as urged by Mr Tennet. The Crown has no objection to me taking this course of action.  I accordingly remit your outstanding fines pursuant to s 88 of the Summary Proceedings Act 1957.

Conclusion

[23]     Mr Porter, can you please stand now.

[24]     On the charge of cultivating cannabis I am sentencing you to two years five

months’ imprisonment.

[25]     On the charge of producing cannabis oil I am sentencing you to six months’

imprisonment. That is a concurrent sentence.

6      Sentencing Act 2002, s 7(1)(a).

7      Section 7(1)(e).

8      Section 7(1)(f).

9      Section 8(b).

10     Section 8(g).

[26]     On the charge of possession of cannabis for supply I am sentencing you to six

months’ imprisonment. That is also concurrent sentence.

[27]     Your end sentence is therefore two years and five months’ imprisonment. Your outstanding fines are remitted.

[28]     You may now stand down.

Solicitors:

Crown Solicitor, Wellington

D B Collins J