R v Reed

[2013] NZHC 1706

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-28 [2013] NZHC 1706

THE QUEEN

v

CHRISTOPHER REED

Hearing:	5 July 2013
Appearances:	J M O'Sullivan for Crown R Boot for Prisoner
Sentence:	5 July 2013

SENTENCING REMARKS OF LANG J

R v CHRISTOPHER REED [2013] NZHC 1706 [5 July 2013]

[1]      Mr Reed, you appear for sentence today having pleaded guilty to a charge of cultivating cannabis.   The maximum penalty for that charge is seven years imprisonment.   The District Court declined jurisdiction to sentence you and committed you to this Court for sentence.  It did so because it only had the ability to impose a sentence of 12 months imprisonment, and the Judge obviously considered that a sentence longer than that was warranted.

Background

[2]      The charge stems from a search that the police carried out of your rented residential address on 28 February 2013.  When they searched the outside of the address, they found a large number of well tended plants, placed in various locations round the outside of your property.   Some of these were grown in pots and were between 20 and 50 centimetres in height.  The police found 27 plants that can properly be described as plants rather than seedlings.   In addition, they found 60 cannabis seedlings measuring six centimetres in height being grown in pots.  These were housed in a wooden box that had a glass lid.

[3]      The police then searched the interior of the house, and found several areas in which cannabis was being grown.  First, they found a cannabis grow operation in a closet in the kitchen dining area.  This housed 31 small cannabis plants ranging from five to ten centimetres in height.  Other items consistent with being used in the cultivation of cannabis, such as fertilisers and potting mix, were also found in the area.

[4]      In the bedroom, the police found a reasonably sophisticated grow room. This was secured by a padlock which you removed for the police.   Inside the growing room were various items of equipment commonly associated with the indoor cultivation of cannabis.   These included a dehumidifier, transformers, ducting, multiple plugs and air venting equipment, buckets and timers.  Inside the grow room the police found 13 cannabis plants ranging between 30 and 40 centimetres in height.

[5]      When you were spoken to by the police, you said that you were growing the cannabis for your own use.  You frankly admitted that you were the person behind the cannabis growing operation.

Sentencing Act 2002

[6]      As I am sure you know by now, in any case involving commercial drug cultivation, a sentence of imprisonment is virtually inevitable.  In this context, issues of deterrence, denunciation and the need to hold the offender responsible are to the forefront.  The main issue to determine in your case is where the starting point for the sentence to be imposed on you lies, having regard to your overall culpability.

Starting point

[7]      Counsel agree that the starting point in your case is to be determined having regard to the guideline judgment of the Court of Appeal in R v Terewi.1   In that case the Court identified bands relating to starting points to be imposed for offending involving  modest  commercial  growing  operations.    That  category  of  offending attracts a starting point of between two and four years imprisonment.

[8]      There was obviously a degree of commerciality about your operation simply because of the sophistication of its setup and the cost that would have been involved in acquiring all the equipment and material for use in it.  In addition, the number of plants, 133 in all, is simply far great for personal use.

[9]      I accept, however, that a considerable quantity of the cannabis was used by you for personal consumption. You have explained to the Probation Officer that you use cannabis habitually as a form of natural pain relief. You suffered a bike accident as a young man in which you lost part of your leg, and now have a prosthetic leg. You obviously continue to suffer from pain and have chosen cannabis as your chosen form of palliative.

[10]     That may be the case, Mr Reed, but that does not, as you know, excuse you from the consequences of the law.  It does, however, affect the starting point that I apply because I am, as I have said, satisfied that a significant proportion of the plant

material that you produced was for your own use.

1      R v Terewi [1999] 3 NZLR 62.

[11]     When I came into Court, I had in mind a starting point of two years eight months imprisonment.  Having listened to your counsel’s submission, I am prepared to reduce that to reflect the significant element of personal use.  I select a starting point of two years five months imprisonment.

Aggravating factors

[12]    I now need to consider whether to increase the starting point to reflect aggravating factors personal to you.  In this context there are two aggravating factors that need to be taken into account. The first, and most significant, is the fact that you have appeared on several occasions now on charges of cultivating cannabis.  The most serious of these was on 1 April 2003, when you were sentenced to three years imprisonment on a charge of cultivating cannabis.  I take it from that sentence that it must have been a reasonably serious charge given the length of the term of imprisonment imposed.

[13]     In 2001, you had served another sentence of six months imprisonment on a charge of cultivating and possessing cannabis.  After your release in or about 2005, you continued to be involved with cannabis. You were convicted again in 2011 on a charge of cultivating cannabis and received a sentence of 100 hours work, together with supervision.  On 31 May 2012, you were convicted again of being in possession of cannabis and utensils.   On this occasion, you were sentenced to 65 hours community work, together with intensive supervision designed to deal with your cannabis-related issues.  You were still subject to that sentence of supervision when you committed the present offences.

[14]     I  consider  your  previous  convictions,  together  with  the  fact  that  you committed this offending whilst subject to the sentence of intensive supervision, warrant a reasonably significant uplift.  I propose to apply an uplift of eight months imprisonment to reflect that fact.

Mitigating factors

[15]     I now need to have regard to mitigating factors personal to you.  In reality, the only factor I can take into account is the fact that you have pleaded guilty.  You

pleaded guilty at an early opportunity, hence your appearance in the District Court. You are entitled to a discount of 25 per cent in respect of that.

[16]     I do not propose to grant any other discount.  You told the Probation Officer that you are motivated to change and to attend any counselling or rehabilitation courses if ordered to do so.  Your history, however, suggests that you have very little motivation to change, and it is highly likely that you will go back to your association with cannabis again if the opportunity arises.  For that reason I am not prepared to allow you any further discount.

Sentence

[17]     You are sentenced, Mr Reed, to two years four months imprisonment.

Lang J

Solicitors:

Crown Solicitor, Hamilton

Counsel:

R Boot, Hamilton