R v Ross
[2012] NZHC 3415
•14 December 2012
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2010-019-2006 [2012] NZHC 3415
THE QUEEN
v
GRAHAM BRUCE ROSS
Hearing: 14 December 2012
Counsel: R G Douch for Crown
M Robb for Prisoner
Judgment: 14 December 2012
SENTENCING REMARKS OF LANG J
R V GRAHAM BRUCE ROSS HC HAM CRI-2010-019-2006 [14 December 2012]
[1] Mr Ross, you appear for sentence having pleaded guilty to four charges in the amended indictment presented against you. The Crown no longer seeks to proceed in respect of Count 1, which was a charge of manufacturing methamphetamine. I therefore discharge you on that charge pursuant to s 347 of the Crimes Act 1961.
[2] You appear for sentence having pleaded guilty on arraignment to charges of supplying methamphetamine, cultivating cannabis, selling cannabis and possession of cannabis for sale. You entered your pleas approximately one week after I gave a sentence indication. For that reason you fall to be sentenced in accordance with the sentence indication.
The facts
[3] The facts surrounding your offending are fully set out in my sentence indication. This will be annexed to these remarks, and is to be read as part and parcel of my sentencing remarks. For that reason, I do not propose to refer to the facts again.
[4] In my sentence indication, I indicated that an end sentence of two years four months imprisonment was open on the material then before me. Neither counsel suggests I should adjust the sentence further, except in relation to mitigating factors other than your guilty pleas.
Mitigating factors
[5] The only mitigating factors that your counsel points to are those involving remorse and a desire to rehabilitate yourself.
[6] I have read this morning a letter you have written to me in which you express remorse for your offending. I have difficulty, however, in accepting that the remorse extends beyond a feeling of sorrow at the position in which you now find yourself. The pre-sentence report makes it clear that you continue to use drugs, and your counsel tells me this morning that this relates to the occasional use of methamphetamine. I consider any true remorse in the circumstances in which you
find yourself would have, as a basic factor, the complete abstinence from all forms of illegal drugs. The fact that you continue to use methamphetamine, by your own admission, means that your assertions as to remorse must be given very limited weight.
[7] This also flows into the area of rehabilitation. For so long as you continue to use methamphetamine, you run the very real risk of becoming involved in the sale and supply of it. The consumption of methamphetamine is the most common way in which drug users become drawn into the commercial sale and supply of the drug in order to finance their own consumption of it.
[8] These factors persuade me that it would not be appropriate to reduce the sentence further from that indicated in my sentence indication.
Sentence
[9] On the charge of supplying methamphetamine you are sentenced to two years four months imprisonment.
[10] On the charge of cultivating cannabis you are sentenced to two years imprisonment.
[11] On the charge of selling cannabis you are sentenced to 18 months imprisonment.
[12] On the charge of possession of cannabis for sale you are sentenced to 18 months imprisonment. All those sentences will be served concurrently, which means you will serve an effective sentence of two years four months imprisonment.
[13] Stand down.
Lang J
Solicitors:
Crown Solicitor, Hamilton
Counsel:
M Robb, Hamilton
IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY CRI-2010-019-2006
THE QUEEN V
GRAHAM BRUCE ROSS
Hearing: 27 September 2012
Counsel: R Douch for Crown
M Robb for Mr Ross
Date of remarks: 27 September 2012
SENTENCE INDICATION OF LANG J
Solicitors:
Crown Solicitor, Hamilton
Counsel:
M Robb, Hamilton – [email protected]
[1] Mr Ross seeks a sentence indication prior to the commencement of his trial on 15 October 2012. He is charged with cultivating cannabis as well as manufacturing and supplying methamphetamine. For the purposes of today’s hearing, the Crown proceeds on the basis that his culpability will be adequately recognised by guilty pleas to charges of supplying methamphetamine, cultivating cannabis and selling cannabis.
Background
[2] The offending occurred after Mr Ross accepted a position of farm manager on a rural property owned by Mr Stephen Gray. Between May and October 2009, the police undertook an extensive electronic monitoring operation to intercept communications between Mr Gray and his associates. During the course of the operation, the police intercepted numerous conversations between Mr Gray and Mr Ross. These demonstrated that Mr Ross was assisting Mr Gray with the cultivation of cannabis on the farm.
[3] During the summer of 2008 and 2009, Mr Ross and Mr Gray were involved in the extensive cultivation of cannabis. I take the summary to record that Mr Ross was primarily responsible for the husbandry of the operation. In other words, he looked after the crop on a day to day basis. Mr Gray, on the other hand, was responsible for organising the sale of the cannabis that was produced as a result.
[4] Generally speaking, distribution of the cannabis would occur from Mr Gray’s home in Hamilton. Mr Gray would either uplift cannabis plant whilst visiting the farm, or he would arrange for Mr Ross to deliver it to his home in Hamilton. Occasionally, Mr Gray would arrange for purchasers to travel to the farm property and obtain cannabis from Mr Ross directly. During the period covered by the police operation, 91 ounces of cannabis were sold in this way by Mr Gray.
[5] On 19 August 2009, the police intercepted a conversation in which Mr Gray and Mr Ross discussed the forthcoming cannabis cultivation season. It appears they planned, at that time, to plant 150 cannabis clones.
[6] The police eventually searched the farm on 12 October 2009. There, they found 28 ounces of cannabis material, of which 20 ounces is said to comprise head material. The balance was seed. Waste cannabis material, weighing 28 ounces, was found in a second location 100 metres away.
[7] The Crown case is that another person lived on the farm and was utilised by Mr Gray to manufacture methamphetamine. Once the methamphetamine had been manufactured, Mr Ross assisted Mr Gray on occasions by taking the methamphetamine from the farm to Mr Gray’s address in Hamilton for sale. On other occasions he acted as an intermediary by passing information between Mr Gray and the methamphetamine cook.
Starting point
[8] I take the lead charge to be that of cultivating cannabis. This was undoubtedly an extensive cannabis growing operation. It falls within Category 2 identified within R v Terewi,1 and therefore attracts a starting point of between two and four years imprisonment.
[9] I take Mr Gray to be the principal party here, because it was his farm and it was clear that he was organising the sale of the cannabis produced as a result of the operation. It is therefore to be assumed that he also received any profits from it. I proceed on the basis that Mr Ross began helping Mr Gray through his position as farm manager. He may have felt a sense of obligation to him. Whatever the motivation, it is clear that he assisted Mr Gray in the fullest way and to the best of his ability. Without Mr Ross being the person on the ground, Mr Gray would not
have been able to undertake the operation.
1 R v Terewi [1999] 3 NZLR 62.
[10] I consider that a likely starting point in respect of Mr Gray in respect of the cultivation operation is around three and a half years imprisonment. Mr Ross falls to be dealt with as a secondary party, but nevertheless as an important assistant to Mr Gray. I would take a starting point on the cannabis charges of two and a half years imprisonment.
[11] To that, there must be an uplift to reflect the fact that Mr Ross was prepared to become involved in the distribution of methamphetamine. There is no suggestion that he was involved in the sale of methamphetamine, or that he derived any material gain from it. Nevertheless, he obviously formed an important link in the chain because he was the person that transported some of the methamphetamine from the farm to Hamilton where it was to be sold.
[12] That must, in my view, be given some weight in the sentencing process. On its own, it would probably a sentence of around at least two years imprisonment. I propose to apply an uplift of five months to reflect the methamphetamine charge. This leaves me with an end starting point of two years 11 months imprisonment.
[13] There is no dispute that a discount of 20 per cent should be applied to reflect the guilty pleas. They would come relatively late, but this was a complex police operation and there have been ongoing discussions between the Crown and counsel for the accused. Other accused have received the benefit of a 20 per cent discount, and it is only appropriate that Mr Ross should receive the same.
[14] Applying that level of discount the end starting point is reduced by seven months, leaving an end sentence of two years four months imprisonment. That is outside the range for which a sentence of home detention would be available. It is possible, of course, that issues such as remorse and factors personal to Mr Ross may operate to reduce the sentence a little further, but that is an issue that can only be explored once a pre-sentence report is received. Even if the sentence came down to two years, there could be no guarantee that a sentence of home detention would be imposed because such sentences are not often imposed in serious cases of drug dealing or cultivation. I therefore make no promises about a sentence of home detention being imposed, even if it was technically available.
[15] This indication will be open for acceptance for a period of a week from today’s date. If Mr Ross wishes to take advantage of it, he should appear in this Court on Friday, 5 October 2012 at 9 am when I will take pleas from offenders who have received sentence indications today.
[16] I record that this indication is given for the purposes of this hearing only. It is based on limited material. In the event that Mr Ross declines to accept the indication and proceeds to trial, the trial Judge will sentence him based on his assessment of the evidence given at trial.
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