R v Shand

[2013] NZHC 3024

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-024-994 [2013] NZHC 3024

THE QUEEN

v

JONATHAN GERALD SHAND

Hearing:                   14 November 2013

Appearances:           S Cameron for the Crown

G Walsh for the Prisoner

Sentence:                 14 November 2013

SENTENCING NOTES OF BROWN J

Solicitors:      Crown Solicitor, Hamilton

Counsel:       G Walsh, Hamilton

R v SHAND [2013] NZHC 3024 [14 November 2013]

[1]      Mr  Shand  you  appear  for  sentence  today  on  one  charge  of  cultivating cannabis in contravention of s 9 of the Misuse of Drugs Act 1975 in respect of which the maximum penalty is seven years imprisonment.  You are also for sentence on charges of driving while disqualified (third or subsequent) and careless driving causing injury.  Those two matters were transferred to this Court pursuant to s 138 of the Criminal Procedure Act 2001 following the entry of guilty pleas by you in the District Court. Two other charges have been withdrawn.

The facts

[2]      In relation to the cultivation charge on 2 November 2012 the police executed a search warrant at your residential address.   Upon searching the premises they found  that  you  had  been  cultivating  cannabis  at  the  address.    Inside  the  spare bedroom was what is called a “grow room”.   It was being used exclusively for growing cannabis plants.   The cannabis plants inside the spare bedroom were in varying degrees of growth and you were running a cloning operation.

[3]      You had 105 cannabis plants growing in four separate areas of the grow room as follows:

(a)      You  had  a  large  “grow  lush”  tent  housing  32  cannabis  plants  in individual planter bag.

(b)You had a large cannabis plant in a cupboard, known as the mother plant.

(c)      Inside a wardrobe were 12 cannabis plants from 20-30 cm in height, lit by two heat lamps.

(d)Also inside the grow room were two polystyrene boxes which had fish tank lights on the top containing 41 seedlings in one box and 19 in the other.

(e)       There were also four power boxes and a timer plug in the room.

[4]      Police also located other items at your address, including multiple snaplock bags, cannabis seeds in the lounge, scales, plant fertiliser, growth chemicals, growing material, potting mix, a cannabis plant hung upside down and drying in the grow room, pruned cannabis leaf and stalk on a table in the grow room and stalks of previously harvested cannabis still rooted in buckets.

[5]      You were present at the time of the execution of the warrant.  You admitted growing cannabis but stated it was for your personal use, that you consumed one ounce of cannabis per week and you admitted having paid $3000 for the grow tent.

[6]      Initially you disputed the commerciality of the operation and a disputed facts hearing was scheduled.  In June this year you elected not to pursue the disputed facts hearing and while you maintain that you have a significant drug habit and use a significant amount as a result, you accept there has been at least some level of commerciality.  It is contended for you however, that there is no other evidence of commerciality or intention to supply others such as cash or tick lists and there were few features of more advanced cannabis growing operations such as electronically controlled temperature, high technology cladding and the like.

Actual and potential commercial value of cannabis cultivation

[7]      You cultivated cannabis in three distinct stages (seedlings, vegetation and budding) enabling a crop of 15 plants on average to mature every 30 days.   The plants were capable of producing one ounce of cannabis in their growing environment.  Fifteen plants yielding one ounce would produce 15 ounces equating to an annual yield of 180 ounces per annum.

[8]      Taking into account your explanation of personal consumption of one ounce per week that would generate a surplus of 128 ounces per annum which, if sold at

$300 an ounce, would have a commercial value of a little over $38,000.

[9]      In  addition  you had  seedlings which would have a commercial value  of roughly $40 each which would result in an annual return on sale of a little over

$9,000.

[10]     The disputed fact hearing was scheduled for 28 June 2013 but when you elected not to proceed Lang J was persuaded to postpone sentencing to enable you to attend personally at the Manning Street Drug and Alcohol Support House and at the Higher Ground drug residential programme as and when required by the providers. Lang J adjourned sentencing on the basis that you would have strict conditions on bail including not to possess or consume alcohol or illegal drugs and his Honour formally  recorded  that  any  breach  of  the  conditions  would  result  in  bail  being revoked and you would be sentenced on the basis of the material available at that date.

Bail breach

[11]     You were located by police at approximately 10.30 pm on 9 October 2013 having driven a vehicle across the centre line and into an on-coming vehicle on McKenzie Road, Waiau Pa.  You fled the scene on foot.  You were driving in breach of a disqualification order.   You had been drinking.   You were in possession of a small amount of cannabis in breach of your bail conditions.   I have read the victim impact report of the driver of the on-coming vehicle who suffered not insignificant injuries in the accident and is still suffering

Personal circumstances of the prisoner

[12]     You are 23 years of age (you were 22 at the date of the cultivation offence). You have previous convictions although none are for offending involving drugs. Nevertheless, as the Crown submits, the previous conviction history illustrates that there is a nexus between alcohol and your offending.  The Crown submits that there are no mitigating personal circumstances that would serve to reduce the otherwise appropriate sentence.

[13]     In sentencing you I have taken into account a number of the sentencing purposes and principles set out in the Sentencing Act 2002 including those in ss 7 and 8 that are referred to in the written submissions of Mr Walsh.

Pre-sentence report

[14]     The original pre-sentence report dated 20 May 2013 recorded that you had a harmful pattern of alcohol and drug use which required intensive treatment.   In Lang J’s Minute of 28 June 2013 he said at [2]:

I have been persuaded today to postpone sentencing to enable Mr Shand to enter the Higher Ground drug rehabilitation programme. That is a residential programme designed to assist drug addicts deal with addiction problems. That is clearly an appropriate course of action for Mr Shand to take, because his addiction to cannabis is obviously at the route of his offending.  I propose to adjourn sentencing, however, on the basis that Mr Shand is granted bail on strict  conditions.     If  he  breaches  any  of  these  conditions,  bail  will immediately be revoked and he will be sentenced.

[15]     As previously noted, those conditions included that you attend personally at the Manning Street Drug and Alcohol Support House and at the Higher Ground residential programme.

[16]     Regrettably you did not complete the programme and the full pre-sentence report of 4 November 2013 states at page 2:

At the time of his last pre-sentence report, Mr Shand was to attend a residential  drug  and  alcohol  rehabilitation  programme  with  the  Higher Ground  Drug  rehabilitation  facility  in  Auckland.     In  discussing  this, Mr Shand advised that he had been “evicted” after three weeks, for being defiant  towards  staff.    When  asked  about  the  reason  for  his  defiance, Mr Shand stated that he had found the Higher Ground Programme to be too structured.   He maintained that he should be referred to a residential rehabilitation facility that is less structured, and more in tune with his particular needs.

[17]     That  report  records  that  at  interview Mr Shand  readily conceded  he has chronic dependencies on both alcohol and illicit substances.  He described a versatile and eclectic preference for both, stating that he would “drink anything” alcoholic and would readily consume any illicit substance available.

[18]     The report writer stated:

Mr Shand’s recent eviction from Higher Ground, subsequent lapse back into chronic alcohol consumption, and reoffending while on bail, cause me to assess him as being at a high risk of offending, with a resultant median risk of potential harm to others.

[19]     The report expressed the view that if you could overcome your dependency on alcohol and illicit substances, the risk would significantly reduce but the dilemma would be in convincing you to remain in residence for the duration of any rehabilitation programme within the community.  As an alternative the report writer noted that the Court might consider sentencing you to a term of imprisonment which would allow you to attend and complete a Drug Treatment Unit programme while in custody.

Crown submissions

[20]    The Crown submits that as the offending was commercial in nature the sentencing purposes of deterrence and denunciation should carry significant weight. The principal aggravating feature to the offending was said to be the commercial nature of the cannabis growing operation.   The Crown submits that the offending

falls within category 2 in R v Terewi.1     In determining where the offending falls

within category 2 the Crown submits that instead of attempting to estimate the likely yield, which is a relevant consideration to setting an appropriate starting point, the sophistication of the offending and the number of plants grown may be used noting the approach was adopted by Allan J in R v Taylor.2

[21]     Drawing attention to the volumes of plants and the starting points of three years in both Hockly v R3  and R v Thomson,4  the Crown submits an appropriate starting point is between two years six months and two years and nine months imprisonment.

[22]     The Crown accepts that your guilty plea was entered at the first reasonable opportunity, albeit in the face of a strong prosecution case, and that in those circumstances you would be likely to receive a full reduction of 25 per cent.5

[23]     With reference to the additional charges the Crown submits these are fresh matters committed while on bail and warrant the imposition of a cumulative sentence

1      R v Terewi [1999] 2 NZLR 62.

2      R v Taylor HC Rotorua CRI 2009-077-908, 30 November 2009.

3      Hockly v R [2012] NZCA 578.

4      R v Thomson HC Rotorua CRI-2004-070-6121, 19 November 2004.

5      Hessell v R [2010] NZSC 135.

under s 84(1) of the Sentencing Act if the offences are different in kind as well as committed whilst on bail.  The Crown further submits that due to your significant non-compliance with your bail conditions and the failure to follow through with the drug treatment programme when extended the opportunity by the Court, the most appropriate sentence is now a term of imprisonment.

Defence submissions

[24]     Mr Walsh for the prisoner concedes that the separate driving matter would ordinarily receive a cumulative consideration.   He says that a four to six month period could be expected.   He argues for a lower starting point on the cultivation charge, arguing that Hockly and Thomson were far more serious charges, they being three year starting point cases.

[25]     He cites the judgment of Brewer J in R v Werehi6 where a two year point was used and he submits that 18 months to two years would be an appropriate starting point in your case.  However, in Werehi the accused was not the principal offender in the cannabis growing operation and as Brewer J noted had it been the appellant’s cannabis growing operation alone then a starting point greater than two years would have been called for.7

Starting point

[26]     I intend to start at the lower of the starting points proposed by the Crown, that is two years six months on the cannabis charge.  To that I will apply a six month uplift  for  the  totality  of  your  offending  to  produce  a  total  of  three  years imprisonment.   I take into account the letters that you have written about your remorse, albeit that they are written after the events giving rise to the breach of your bail and deduct one month for remorse.  I will apply the 25 per cent discount for an early guilty plea to give an end sentence of two years two months imprisonment.

[27]     I have read your letters, I am conscious that you do not wish to return to prison but I have no alternative in the circumstances as I have outlined.  But if you

6      R v Werehi [2013] NZHC 2029.

7 At [15].

are genuine in the statements that you have made that it has led you to want to push alcohol and drugs out of your life, then the relatively short term of imprisonment would afford you the opportunity and the structure to attend such courses and this time hopefully to complete them. You are still a very young man and it is very much in your interests to secure a release from the chronic dependency which you have demonstrated in your recent behaviour.

Result

[28]     On the charge of cultivation of cannabis you are sentenced to two years two months imprisonment.

[29]     On the charge of careless driving causing injury you are sentenced to three months imprisonment to be served concurrently.

[30]     On the charge of driving while disqualified you are sentenced to six months imprisonment to be served concurrently.

[31]     You are also disqualified from driving for the mandatory period of one year.

[32]     I  also  make  an  order  for  forfeiture  of  the  cannabis  plants  and  drug paraphernalia.

Brown J