R v Reddy HC Whangarei CRI-2010-088-003722

[2011] NZHC 550

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2010-088-003722

THE QUEEN

v

JASON NORMAN REDDY

Hearing:         4 and 12 May 2011

Counsel:         M A Jarman-Taylor for the Crown

K G Johnson for Mr Reddy

Judgment:      12 May 2011

SENTENCE OF WOODHOUSE J

Solicitors:

Mrs M A Jarman-Taylor, Marsden Woods Inskip & Smith, Office of the Crown Solicitor, Whangarei

Mr K G Johnson, Barrister, Kamo

R V REDDY HC WHA CRI-2010-088-003722 12 May 2011

[1]      Mr Reddy, I will need to explain the sentence.  You may remain seated while

I do that and then you will need to stand.

[2]      I make clear at the beginning, as the discussions I have had will indicate, I intend to impose a sentence of home detention.  But I would also want to make clear to you at the beginning that this is serious offending and you must recognise that. And it does appear from your responses to me as I am saying this that you do recognise it, and I really hope that is the case.

Offences

[3]      You pleaded guilty to a charge of cultivating cannabis between May 2009 and

August 2010 and contravention of a protection order on 19 August 2010.

Facts

[4]      Police searched your home in August 2010.  Inside the house they found 69 cannabis seedlings, 361 grams of low-grade leaf material and approximately 3,300 cannabis seeds.   Outside the house there were eight plants ranging from 40 centimetres to 1.5 metres.

[5]      You had kept a diary over the period with detailed growing records. You said that over the 61 week period from May 2009 until August 2010 you had managed approximately six growing cycles.   In your diary you recorded that you had got a yield of 10 ounces from one cycle.  You told Police that you generally got around 5 ounces from each growing cycle.

[6]      You  claimed  that  you  had  grown  it  for  your  own  consumption  and intermittently for associates.

[7]      There was a disputed facts hearing before Judge Doogue in the District Court. She determined that it was not possible for you and the occasional associate to consume all of the assessed production.  This was on the basis that with 10 ounces

from each cycle you would have produced around 60 ounces over the 61 week period.  You claimed to Police that you had grown it for your own consumption, as I mentioned.

[8]      Apart from the inferences from the quantity that may have been produced, there was no evidence of your having sold cannabis.

Facts – protection order

[9]      In relation to the protection order offence, there were orders made in 2000 and 2003.  One condition was that you not possess any weapon.  “Weapon” includes an airgun.  When Police came to your home they found a loaded airgun.  You said you used it to shoot magpies.   There was no evidence that the possession of the airgun was associated in any way with domestic violence.

Personal

[10]     You are aged 39.

[11]     You  have  been  unemployed  over  the  past  9  years  or  so  apart  from approximately 4 months.   Your income has been an unemployment benefit.   The probation officer said that you have had little community involvement.

[12]     You told the probation officer that you suffer from depression.  You also told the probation officer and Judge Doogue that you were a heavy cannabis user.

[13]     To your credit, following your arrest, you put yourself on the waiting list with the Mental Health and Addiction Service of the District Health Board.  And I have received a letter from a councillor confirming that you are getting counselling for depression and other issues.   And it is particularly encouraging and relevant to a home detention sentence that your councillor has come to Court today in support. And I do recognise how important this is Mr Reddy, and I apprehend that you do recognise that as well.

[14]     You have six previous convictions.  These are minor offences and resulted in modest  penalties.    None  is  relevant.    There  was  a  conviction  for  breach  of  a protection order in 1999.   In the present circumstances that can be regarded as historic  and  not  relevant  to  the  present  charge  of  breach  of  a  protection  order because, as I have indicated, the present charge was not associated with any form of domestic violence.

Sentence

[15]     The Crown submits that, in terms of a Court of Appeal case called Terewi,[1] that the starting point for your offending should be in what is called category 2 and that it should be 3 years imprisonment – the starting point.  And that is before taking account of matters which might increase or decrease that sentence.

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

[16]     There was no appeal from Judge Doogue‟s judgment.  But that judgment does not have any express findings on commerciality – that is, supply for profit.   The Judge‟s conclusion was essentially limited to what I earlier noted, that your own consumption, which you said was high, and the occasional supply to friends, could not account for consumption of the total of 61 ounces.  There is no challenge to your evidence  that  you  have  been  a  heavy  user  of  cannabis  and  this  may  also  be associated in some way with periods of depression.

[17]     The Court of Appeal has emphasised that the categories referred to in Terewi and also in other tariff cases are not to be applied as if they are mathematical formulas.  Category 1 of Terewi relates to growing for personal use and supplies to others on a non-commercial basis.  Generally, category 1 offending would result in a non-custodial sentence.  Category 2 is for small scale commercial growing for profit. Generally, the starting point will be 2 to 4 years.  I emphasise the word „generally‟. As the Court of Appeal said, where there are infrequent sales and these are of very limited extent, a lower starting point may be justified. As I have already said, in this case there is no direct evidence of sales at all and this can only be inferred, to an

extent, from the quantity.  I would also note that it would not be inconsistent with

Judge Doogue‟s judgment to conclude that the total yield over the 61 week period

may have been less than the total of 60 ounces.

[18]     Having regard to Terewi, and other cases for comparison, and having regard to the provisions of the Sentencing Act, I consider that the starting point should be

18 months imprisonment.  This involves a substantial period of imprisonment when compared with a non-custodial sentence which would generally be applied for category 1.

[19]     Personal  circumstances,  apart  from  your  guilty  pleas,  cannot  result  in substantial credits.  Nevertheless, I consider the matters I have referred to do warrant some   reduction,   including   for   the   purposes   of   seeking   to   encourage   your rehabilitation and, by that means, preventing further offending.  And you again have acknowledged as I am saying these things the importance of this.  I consider there should be a reduction of 3 months which takes it down to 15 months.

[20]     Your guilty pleas were entered at an early stage.   The Crown accepts that there should be a further reduction of 25%.  That produces an end sentence of 11 months imprisonment if imprisonment was appropriate.

Home detention

[21]     The  probation  officer  firmly  recommended  home  detention.    When  this matter came before me last week there were difficulties with that recommendation in relation  to  the  proposed  address.    The  offending  in  this  case  was  offending committed in your home.   And the proposal was that you be sentenced to home detention at the same house which is in a rural area outside Whangarei.  Following discussions with both counsel, and then directly with you at the hearing last week, it was agreed that the sentencing should be adjourned for a week to enable enquiries to be made of your parents to see whether they would agree to your serving a sentence of home detention at their home.

[22]     A favourable report has been received.  This, Mr Reddy, is a positive advance compared with the earlier proposal and particularly with the benefit of parents who

wish to provide support.   This is now a case where home detention is definitely appropriate in my judgment.

Formal sentence

[23]     You should now stand and I will impose a formal sentence.

[24]     For the offence of cultivating cannabis you are sentenced to home detention for 6 months.

[25]     There will be special conditions applying to the home detention.  These are the conditions set out at page 2 of the recent report and being the report received by the Court on 10 May 2011.

[26]     You will be subject to special post-detention conditions for a further period of six months being the special conditions applying during the home detention other than the conditions relating to residence.   And those are in particular to assist in rehabilitation.

[27]     In relation to the breach of the protection order I consider that it was, as I say, in substance part of the cultivation of cannabis offence.  As I have also said, there is nothing to indicate connection with the reasons for the original protection order.  For this reason it is appropriate to impose a concurrent sentence.   The sentence is 1 month‟s home detention.  So the total is a sentence of 6 months home detention.

[28]     There is an order for forfeiture and destruction of a surveillance system and the airgun.

[29]     Mr Reddy, you are getting an opportunity and I hope you can really make the most of it.

Peter Woodhouse J