R v Reese HC Christchurch CRI-2005-009-010188

[2007] NZHC 1851

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2005-009-010188

REGINA

v

GEORGE ALAN REESE PAUL JULIAN FISHER DANIEL DANNY WALKER

RAYMOND THOMAS GRAHAM

ROSEMARY ANNE COTTER

Hearing:         15 June 2007

Counsel:        K J Beaton for Crown

A N D Garrett for Mr Reese

P B McMenamin for Mr Fisher

R A Peters for Mr Walker

P N Dyhrberg for Mr Graham

G R Lascelles and K H Cook for Ms Cotter

Sentence:       15 June 2007

SENTENCE OF PANCKHURST J

[1]      You may remain seated.  I will ask you to stand when I want you to.

[2]      Mr Reese, Mr Fisher, Mr Walker, Mr Graham and Ms Cotter, you are for sentence  this  morning  on  various  cannabis-related  offences,  having  been  found guilty at trial, or having pleaded guilty to those offences on arraignment.  I will refer

to the specifics of the charges which you each face, shortly.

R V GEORGE ALAN REESE AND ORS HC CHCH CRI-2005-009-010188  15 June 2007

[3]      Each of you was arrested at the termination of a police operation named “Ghost”.  That was on 8 September 2005.  The operation had been conducted for a period of three months prior to that date.  An interception warrant was obtained from this Court, and pursuant to it, numerous calls were intercepted and became of central relevance at your trial.  So, too, did text messages, some surveillance evidence and, importantly, the evidence of searches which were conducted at the termination date.

[4]      Prior to the trial last month Ronald Young J, in a pre-trial ruling, excluded evidence of the search of two addresses.  In addition, at the trial, three of your co- accused, Mrs Maureen Reese, Gus Blackgrove and Nigel Bryce, were acquitted in relation to involvement in the cannabis conspiracy, by virtue of verdicts of the jury.

[5]      I mention these aspects because to my mind they give rise to a difficulty for me at this stage in imposing sentence.  As I have already indicated to counsel in the course of submissions, I think the exercise is invested with a degree of artificiality as a result of both the ruling and the verdicts to which I have referred.

[6]      The evidence of the sources of cannabis which became the subject of the telephone calls to which I have referred, is, in part, absent.   In addition, I must proceed on the basis that some of the telephone calls concerned dealings in a product unknown, particularly the calls between you Mr Reese and Blackgrove.   However, that’s the way it is.

[7]      I need to begin with an outline in broad terms of the nature and extent of the cannabis dealing operation.   That provides the backdrop to assess individual culpability.   You, Mr Reese, resided at 126B Rockinghorse Road at the relevant period.  Your ex-wife, Maureen, resided there at least part of the time as well, and she  had  leased  a  property,  another  address  in  Rockinghorse  Road,  to  you, Mr Graham,  and  more  importantly,  for  present  purposes  at  least,  a  property  at Kingfisher Lane to you, Mr Fisher.

[8]      The intercepted conversations evidenced close associations between numbers of you.  Mr Reese had frequent dealings with Mr Walker who was obviously a street level dealer.   He had occasional dealings with you, Mr Graham, which I view as

evidence that you were an occasional seller.  Then there was a substantial body of evidence which established the closeness of the relationship between you, Mr Reese, and  Mr  Fisher.    You  were  cousins  and  you  collaborated  in  the  distribution  of cannabis which had been grown at Kingfisher Lane.  There can be no doubt that you, Mr Fisher, in conducting that hydroponic operation at Kingfisher Lane, were the main supplier of cannabis for the purposes of the conspiracy.  Mr Garrett, however, commented this  morning,  that  as you said  at  a  police  interview,  not  all  of the cannabis went in the direction of Mr Reese.

[9]      Arising out of this the real issue I have to confront is what scale of operation was this.  I conclude that as a group you had the ability to supply very significant amounts of cannabis, both pound lots and, on a very regular basis, ounce lots.  There was the potential for considerable, if not major, profits.  Yet, I note, I cannot reject Mr  McMenamin’s  argument  that  serious  amounts  of  money  or  other  signs  of affluence have not been uncovered.  Perhaps the best indication of the level of the gains is to be found in the sums of money which were recovered at termination date, significant amounts of cash, but by no means vast amounts.

Mr Reese:

[10]     Would you stand up please?  You are for sentence in relation to two crimes. The first is participation in the conspiracy to sell cannabis.  The second is possession of that drug at termination date for the purpose of sale.   For the reasons I have already  given,  I  consider  that  you  were  involved  on  an  almost  daily  basis  in procuring, and supplying, cannabis throughout this three month period.

[11]     At termination when a search warrant was executed at your home, you were in possession of 5 ounces of good quality cannabis.  There were sums of $700 and

$3,560 in cash, mainly $20 notes, also in your possession.   I accept Ms Beaton’s description of you as being the hub of this cannabis dealing operation.

[12]     Mr Reese, you are 54 years of age.  As your counsel has stressed, you have a number of business interests which you have effectively put at risk as a result of this activity.

[13]     You have a total of nine previous convictions; a number in the 1960s and

1970s which I ignore.  Other than that, in more recent times over the last 10 or 15 years, you have incurred four drink driving convictions and one, in 1994, for possession of cannabis in relation to which you were fined a small sum.   I do not regard those convictions as of great moment.

[14]     The drink driving ones confirm an aspect of the pre-sentence report, that you have had, and perhaps still have, an alcohol problem.   I note also that you suffer from depression and from the condition known as Hepatitis C, and that you claim your use of cannabis was originally for medicinal purposes.

[15]     However it came about, you chose to become involved in commercial dealing for profit.  As Mr Garrett has realistically acknowledged, the pre-sentence report is unrealistic in suggesting you could be sentenced by way of community work.   I agree with the Crown’s assessment that you fall within category 3 in R v Terewi [1999] 3 NZLR 62. On the other hand Mr Garrett stressed that I must remove from consideration any involvement in the actual cultivation at Kingfisher Lane and likewise from consideration, the contention that you sold large amounts, probably pounds, direct to Blackgrove. He contends that you fall in category 2 of Terewi but I do not accept that.  In my view the scale of your involvement is greater.

[16]     I have significant regard to the scale of the growing operation at Kingfisher Lane.  That, in my view, best indicates the scale, albeit I bear in mind the argument that not all of the cannabis was necessarily sold through you.

[17]     There  is  an  application  for  the  forfeiture  of  the  money  found  in  your possession and for the forfeiture of a Mercedes car.  As I have already indicated, I am prepared to reserve for consideration the greater amount of the money, $3,560, and the car, and if the Crown wishes to pursue those it should do so by a separate application.  However, I order forfeiture of the sum of $700 as, on the basis of the evidence I have heard, I am well satisfied that was drug money.

[18]     With reference to your sentence, I consider the appropriate starting-point is four years imprisonment.  I see no reason to deviate upwards or downwards from

that figure and, accordingly, that is the sentence imposed in relation to both counts, an effective term of four years.

You may stand down.

Mr Fisher:

[19]     Could you stand please.  You are for sentence upon a number of charges: the conspiracy, cultivation of cannabis at both Kingfisher Lane and at Chancellor Street, possession of cannabis for sale and the theft of electricity.   You entered pleas of guilty to the Kingfisher Lane cultivation and the theft of electricity at the commencement of the trial and, through Mr McMenamin, you realistically acknowledged your involvement in the Chancellor Street cultivation, before the jury.

[20]     I accept the descriptions that you were the main grower and, as it has been put, Mr Reese’s right hand man.  The search warrant in relation to Kingfisher Lane, revealed a house which had been converted to grow cannabis on a hydroponic basis, virtually to the point that the house was unliveable.   Three bedrooms, a bathroom were converted for cannabis growing purposes.   There were 469 plants under cultivation, although Mr McMenamin has said the bulk of them were immature, but that is part of the process where plants are being grown in cycles.  There were all the normal accoutrements of a cannabis-growing operation.

[21]     In addition, electricity was being diverted, stolen, with the result that you face a claim for reparation in the sum of $6,212.

[22]     The Crown expert considers that the operation had the capacity to produce four crops a year, that if that cannabis was sold in ounce quantities it was worth of the order of $76,000 per crop and therefore over $300,000 on an annual basis.  There was dried cannabis which is the subject of the possession for sale charge, in the amount of 679 grams or 24 ounces, which, of itself, had a value of $3,000-$7,000, depending on how it was sold.  If that was not enough, you were in possession, on

8 September, of $7,560 found in the kitchen and a further $900 found in a jacket.

[23]     You  were also  implicated  in  the  growing  operation  at  Chancellor  Street which was a fraction of the size of that at Kingfisher Lane, but nonetheless, to use your words, produced an awesome return of one and a half, in my view, pounds, when it was harvested shortly before termination date.

[24]     Mr  Fisher,  I  have  read  the  report  and the  references  about  you  and,  in essence, I agree with everything Mr McMenamin has said on your behalf.  You are

53 years of age; you lived in Australia for about 30 years before returning here comparatively  recently.    You  are  a  talented  musician.    You  obviously  regard cannabis as a drug which it’s okay to use because that is part of the music scene.  I note you have also said to the report writer that the Crown estimates of the potential returns in this case are greatly exaggerated.

[25]     With reference to your sentencing, the Crown places you in pretty much the same category as Mr Reese.  Mr McMenamin, however, contended that this was, and I quote “a small scale cottage industry”.  I disagree.  He suggests “the potential was never realised” and that there was “no evidence of aggregation of property, high living or expensive assets”.   Well there certainly was some realisation: the cash found in your possession alone speaks for that.  But it is a somewhat curious feature of  the  case  that  there  is  not  the  existence  of  material  wealth  which  might  be expected, given the scale of the hydroponic growing operation you were conducting.

[26]     You have no relevant convictions, it seems to me.   There is one for the importation  of  methadone  where  you  appeared  in  1995  in  the  High  Court  at Auckland and were fined $3,000.  Mr McMenamin has said that this was the result of inadvertence.  He asked, as well, that you be given credit for your pleas of guilty, albeit they were only entered upon arraignment, and I suspect indeed for tactical reasons, and for the realism that was evident on your instructions in the way Mr McMenamin conducted the defence on your behalf at trial.

[27]     The sheaf of references that have been provided by your friends and music acquaintances speak with a single voice.  They describe you as intelligent, talented, handy, likeable, generous.  Mr McMenamin added the qualification, unsophisticated. I do not differ from those descriptions.  I fear you have brought a number of these

attributes to bear in Kingfisher Lane.  I also have the impression that you think that cannabis should be legalised and that that is part of the reason, (I note, your disagreement in shaking your head.  That’s good.)  I can only then assume that you became involved on account of a need for money.

[28]     In relation to you, I consider that the same starting-point as for Mr Reese must be adopted.  I allow a reduction of three months from that, to recognise the fact that there was some acknowledgement, eventually, of your involvement.   That produces an effective sentence of three years and nine months.  That is imposed in relation to the two most serious offences, the conspiracy and the Kingfisher Lane cultivation.    The  remaining  charges will attract  a penalty of 18  months  for the possession charge and six months for each of the other two offences, but all of those terms are concurrent.

[29]     I also order forfeiture of the sums of money totalling $8,460 found in your possession.   With reference to the application for reparation, I am bound to take account of your means, which are modest to say the least, and not helped by the fact that you are about to be out of circulation for a period.  I consider that an order to make reparation of part of the sum is all that is appropriate at this stage and I direct payment of $2,000 by way of reparation, leaving it for Contact Energy to pursue you for the balance if it chooses.

Please sit down.

Mr Walker:

[30]     You pleaded guilty on arraignment to possession of cannabis for the purpose of supply, an amount of about three ounces found at termination date.   You were found guilty by the jury in relation to the conspiracy.   You were dealing at street level in cannabis.   You procured ounces from Mr Reese and onsold them to your customers.   There has been some debate between Mr Peters on your behalf, and Ms Beaton for the Crown, as to the extent of your dealing.  The Crown contends you were dealing in several ounces per week.  Mr Peters would have it as being perhaps a couple of ounces per week.   The fact is there is evidence, hard evidence, that you

were at it constantly.  You were making regular, daily calls almost, to Mr Reese and on the basis of those, one can identify of the order of 26, perhaps, ounces which were actually the subject of express discussion over the phone.  But there were many more calls where you were seeking to restock but the amount you uplifted was not articulated.  I think Ms Beaton is right in saying you were dealing on a basis which was repetitive, ongoing and consistent.

[31]     You are 59 years of age.   You are in indifferent health.   You are a bit old really, Mr Walker, to be involved in this lark.  Your previous list extends back as far as 1963 and forward to 2001.   Of relevance are convictions in 1971 for offering morphine for which you received a substantial sentence of imprisonment; in 1990 for possession of cannabis for supply and then in 1998, again possession of cannabis for supply, when you got a short term of imprisonment.   But you haven’t learnt apparently.

[32]     What then is the appropriate starting-point in your case?  In my view you are within category 2 of Terewi and I think that the appropriate starting-point is two years and six months.  I do not think there is any reason to deviate from that point, either on account of your late pleas or upwards on account of your past record.  You are therefore sentenced to that term on each count, the terms to be concurrent and I order forfeiture of the cash of $790 and of the vehicle which you used repetitively in the course of your offending.

Please stand down.

Mr Graham:

[33]     You are for sentence in relation to one offence, that of the conspiracy.  You were involved in only two calls which were intercepted on 22 and 28 June.  You also made some admissions when you were interviewed by the police.  I do not think the interpretation  of  the  verdict  and  the  evidence  in  your  case  is  entirely  straight- forward.  No doubt there is an element of artificiality, as well, arising for the reasons which I have already mentioned, but I remain deliberately ignorant of exactly what that excluded evidence encompassed.

[34]     You are therefore to  be sentenced on the basis that  you entered  into  an agreement with Mr Reese to deal in cannabis on at least a couple of occasions.  In one of the conversations you refer to “having people” waiting and needing cannabis “over  the  weekend”.    Exactly  what  followed  those  conversations  is,  of  course, unclear.

[35]     The Crown accepts that your involvement is more limited than that of your co-offenders.  Your counsel, Mr Dyhrberg, argued that if you are in category 2 of Terewi, that the proviso to that category which covers situations of dealers whose sales are infrequent and of limited extent, should apply.  He therefore argued that a starting-point of less than two years imprisonment should be adopted.

[36]     The report in your case confirms that you are 57 years of age, hard-working as a self-employed builder.  It describes you as a loner; that you consider cannabis a harmless substance which should be legalised and, indeed, that your views about that are entrenched.  In consequence it is said that you see yourself as a victim of the law, rather than as someone who has infringed against it.

[37]     Mr Dyhrberg suggested that the description in the report is two dimensional. He  indicated  that  you  are  tired  of  the  consequences  of  your  involvement  with cannabis and now have an incentive to change, not the least on account of a small café business which you have in Hokitika.

[38]     I note that you have some relevant previous convictions.  In 1981 you were convicted upon five charges of selling cannabis and sentenced to a significant term of imprisonment and that same year to a term of community service for the same offence.

[39]     In my view it is appropriate in your case to adopt a starting-point beneath two years imprisonment.   I consider that 15 months is the appropriate term.   I see no reason to go up or down from that figure.

[40]     That raises the issue of leave to apply for home detention.  The seriousness of your offending  does not, in  my  view,  preclude  it  as an option.    Your personal

circumstances are somewhat ambivalent.  On the one hand your attitude to cannabis counts against you.   But on the other you have pressing business reasons which commend me to the view that home detention should certainly be left open as an option.  It is largely for that reason, and recognising your stage in life as well, that I grant you leave.   I impose, in relation to your sentence of imprisonment, standard conditions of release.

Please be seated.

Ms Cotter:

[41]     You are for sentence upon one charge of cultivating cannabis at Chancellor Street to which you have pleaded guilty on arraignment.   A search revealed the remnants of a healthy and productive cannabis-growing operation in your garden shed.    There had obviously  been a  harvest  a  few  days  before  the  search  on  8

September.  I am in no doubt that that harvest realised what Mr Fisher described as an awesome amount of one and half pounds of cannabis.   Accordingly the Crown does not accept that you were growing for personal use.   Rather, it is argued, this was a commercial activity, although it is accepted a starting-point below two years would be appropriate.

[42]     Mr Lascelles, however, does not accept that categorisation at all.  He argues that you should be placed in the least serious category of Terewi, category one, and be dealt with by way of a community-based sentence.   I think he supported that submission with various contentions and criticisms of the Crown stance.

[43]     I do not actually agree with either assessment and I will explain why in a moment.

[44]     You are 49 years of age.  You have never been before a Court before.  You are self-employed as a seamstress in relation to which you are described as talented. About the only adverse thing that can be said against you is that you are a cannabis user.   Like Mr Fisher, I have a number of references concerning you which are, frankly, glowing.  They describe you as generous, kind and caring.   You probably

know that personal circumstances cannot greatly influence the actual sentence in relation to drug offending.   But here I regard your circumstances, more accurately your character perhaps, as relevant to the assessment of your culpability.

[45]     I have read, as well, the letters that both you and Mr Fisher have written.  It was obvious you were in a relationship in 2005 and, from the letters, it appears that relationship is much closer now than it was then.

[46]     There is evidence of his fingerprints on the equipment used in your garden shed.   The set-up of that cannabis operation has some obvious hallmarks which suggest the same hand which was responsible for Kingfisher Lane could well have been responsible for Chancellor Street.   Kingfisher Lane impressed me as having been at probably about full capacity during the period of the police operation.

[47]     On the basis of all the evidence, including the surveillance evidence as to what occurred at about the point of the harvest of the plants in your possession, I am satisfied that Mr Fisher was instrumental in the setting-up of what was occurring in your garden shed.  You cooperated; no doubt you played an active part in tending the crop as well.  But for him and your relationship with him, however, I doubt that you would be here today.

[48]     It is also evident from the telephone conversations where the cannabis was bound and who had effective control over it.  By contrast, you were involved in no intercepted conversations.

[49]     In light of this assessment, the view I reach is that you should remain in the community and I consider the recommendation in the report is appropriate.  You are sentenced to 200 hours of community work.

You may stand down.