R v Sharp HC Rotorua CRI 2010-063-004641
[2011] NZHC 1326
•22 July 2011
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI 2010-063-004641
CRI 2010-063-005866
THE QUEEN
v
JOHN MCINALLY SHARP MELANIE ROLFE
Hearing: 22 July 2011
Counsel: S-L Tapsell for the Crown
M A Simpkins for Sharp
H S Edward for Rolfe
Judgment: 22 July 2011
SENTENCING NOTES OF WOOLFORD J
Solicitors:
Crown Solicitor, Rotorua
Lance Lawson, Rotorua for Sharp
H S Edward, Rotorua for Rolfe
R V SHARP & ROLFE HC ROT CRI 2010-063-004641 22 July 2011
[1] John McInally Sharp and Melanie Jane Rolfe, you appear today for sentencing under the Misuse of Drugs Act 1975 in relation to charges to which you have pleaded guilty. The charges arise out of a cannabis-growing operation at your home. The Crown also seeks the forfeiture of your home as an instrument of crime under the Sentencing Act 2002. The forfeiture of your home is not opposed.
[2] Mr Sharp, you have pleaded guilty to three charges:
(i) the cultivation of cannabis over a 20 month period between 1 January
2009 and 27 August 2010, the date that the police executed a search warrant at your home;
(ii) the possession of cannabis for supply on 27 August 2010; and
(iii) the sale of cannabis, again between 1 January 2009 and 27 August
2010.
[3] On 27 August 2010 police executed a search warrant at your home address at
34 Unsworth Road, Hamurana, Rotorua. That property is owned by you and
Ms Rolfe jointly. You lived there with your two children.
[4] Police found a sophisticated cannabis-growing operation. In total, 80 plants between 25 and 45 centimetres tall were found at the address. A fish bin containing
55.5 ounces (or 1.5 kilograms) of cannabis was also found along with $2260 in cash.
[5] The growing setup was mainly in an internal garage and included seven lighting systems, a fan to encourage airflow, a large industrial extractor fan and walls lined with reflective film. The 80 plans located had the potential to yield between
160 and 320 ounces per cycle, which would fetch $40,000 to $80,000. The dried cannabis found could have fetched up to $22,000. You told the police that the current crop was your fifth cycle grown at the address.
[6] As to your personal circumstances, you have two prior previous convictions both for cannabis cultivation. In 1991 and again in 1993 you were convicted in the Rotorua District Court and fined $500 for cultivating cannabis.
[7] The pre-sentence report shows that you are a 42 year old man of European descent who formerly lived locally with your partner, also for sentence today, and your two teenage children. You were born and raised in Rotorua and after leaving school undertook training in music and screen printing. For the past 12 years you have been working as a DJ and as a screen printer. However, prior to the report being written, you were supported by a sickness benefit. You have also had a number of mental health issues in the past. The stress you find yourself under now has caused you to undertake more counselling as you come to grips with what might happen to you today.
[8] You reported no alcohol issues to the report writer but you were open about your previous drug use. You advised the report writer that you had used ketamine and ecstasy in the past and were, up until your arrest, a regular smoker of cannabis. You and your partner would smoke a couple of ounces every 10 days. You told the report writer that you decided to start growing your own cannabis on account of your high personal use and began selling to friends when “it worked better than you thought” and you had excess cannabis.
[9] The report writer identifies habitual drug use, a sense of entitlement and pro- criminal associates as key factors in your offending. You, however, saw your offending as a victimless crime and your attitude previously towards drug offending was nonchalant. However, since your home has been restrained, you seem to have changed your attitude. Your motivation to address your drug habit is evidenced by your self referral to Te Utuhina Manaakitanga Trust to help you remain drug free. The report writer assesses you as having moderate motivation to remain offence free and as a low risk offender because of your limited offending history. The report writer recommends a sentence of community work and home detention with rehabilitative counselling to continue pursuant to post detention conditions. A favourable home detention report is annexed to the pre-sentence report.
[10] The Crown submits that as the offending falls into band 2 of R v Terewi1 a starting point of between three and three and a half years imprisonment should be
adopted. The Crown acknowledges, however, that a discount of 25 percent should
1 R v Terewi [1993] 3 NZLR 62.
be available for your early guilty pleas. The Crown also acknowledges that a discount will also be necessary to reflect the forfeiture it seeks of the Unsworth Road property. It does not, however, elaborate on how much this discount should be.
[11] Your counsel submits, as per the pre-sentence report, that a combined sentence of community work and home detention would be appropriate in all the circumstances. It is accepted on your behalf that there is a level of sophistication aggravating the offending and that there was an aspect of commerciality to the cultivation. It is submitted, however, that the sales were only ever to a limited number of people and in bulk rather than in tinnies. Furthermore, your counsel emphasises the historic nature of your previous convictions. Also in mitigation the early guilty pleas, your depressive illness, financial hardship, engagement in rehabilitative programmes and acceptance of responsibility, are all submitted to be relevant. Counsel also highlights the character references provided to the Court and your letter to the Court which, it is submitted, demonstrates your real and genuine remorse. It is submitted, of your behalf, that the offending falls into category two of Terewi and that once the relevant mitigating factors are taken account, a sentence of two years imprisonment would not be inappropriate. On this footing, a sentence of home detention is sought.
[12] In R v Terewi the Court of Appeal divided cannabis cultivation into three broad categories:
(a) Category One: small number of plants for personal use, supply on a non-commercial basis. Invariably dealt with by a fine or other non- custodial sentence.
(b)Category Two: small scale cultivation for a commercial purpose – deriving profit. Starting point generally between two and four years imprisonment. Infrequent and limited sales could point to a lower starting point.
(c) Category Three: serious offending – large scale commercial growing, usually with considerable sophistication. Starting points usually in excess of four years imprisonment.
[13] I have had regard to the cases of R v Seymour,2 R v Delamore,3 and R Cook.4
In assessing the offending it is clear that it falls within category two of the Terewi classification. Generally speaking, the starting point would, therefore, be somewhere between two and four years imprisonment.
[14] In light of the cases I have cited, it is my view that a starting point of three years imprisonment is appropriate in the circumstances. Your offending is not as serious as that in Seymour or Delamore where starting points of three and a half years imprisonment were adopted. Your case is more similar to Cook where a starting point of between three and three and a half years imprisonment was adopted.
[15] The starting point of three years imprisonment must be adjusted to take into account aggravating and mitigating factors relevant to you. Your previous convictions for cannabis offending are an aggravating factor. However, given that they are historic, there is no need for an uplift on their account. You have provided references to the Court from various friends and people who know you. You have also written a letter to the Court expressing your remorse for your offending. You also deserve credit for your guilty plea. In this case, I take into account the fact that the prosecution case was a strong one but that you did plead guilty at a very early opportunity. Given these factors a discount of 25 percent is appropriate, which brings the starting point down to two and a quarter years imprisonment.
[16] The question then becomes how much credit should you receive on account of the forfeiture of your home under s 10B Sentencing Act 2002. Forfeiture can itself be a substantial penalty which affects the sentence considerably. In this case there are two valuation reports. The Crown’s market valuation report undertaken by Property Solutions values the property at $270,000. Under forced mortgagee sale
conditions, however, the valuation drops from that figure. The defendants’ market
2 R v Seymour HC Whangarei CRI 2009-027-1356, 3 February 2010, Keane J.
3 R v Delamore HC Auckland CRI-2010-004-1934, 5 October 2010, Brewer J.
4 R v Cook HC Tauranga CRI-2008-087-320, 10 July 2008, Woodhouse J.
valuation undertaken by Property Indepth values the property at $305,000. There is no valuation under forced mortgagee sale conditions. The property is jointly owned by you and Ms Rolfe. It is subject to a mortgage held by Mortgage Holding Trust Company Limited. The Crown advises that as at today the total owing on the mortgage is $192,911.27. The extent to which a forfeiture order mitigates a sentence is a matter of discretion and there is not necessarily any direct correlation between the value of the property forfeited and the amount of the discount. Nevertheless, it seems logical that a greater loss to an offender from forfeiture should correspond with a greater discount.
[17] It is my view that the forfeiture of your home is a significant penalty of itself and I am able to give you a further discount in respect of the sentence of imprisonment which would otherwise be appropriate of 12 months. This brings the provisional sentence to one of 15 months imprisonment.
[18] Because the provisional sentence of 15 months imprisonment is less than two years imprisonment, I now need to consider whether it is appropriate to impose home detention. Section 15A Sentencing Act permits a Court to impose a sentence of home detention not exceeding 12 months where two statutory criteria are met. First of all, the Court needs to be satisfied that the purpose or purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences and, secondly, the Court would otherwise sentence the offender to a short term sentence of imprisonment, being two years or less.
[19] A sentence of home detention is subject to standard conditions under s 80C Sentencing Act and the Court has a discretion to impose special conditions under s 80D if it is satisfied that there is a significant risk of further offending by the offender and standard conditions alone would not adequately reduce that risk and the imposition of special conditions would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
[20] The Court of Appeal in R v Hill5 gave some guidance as to the imposition of a sentence of home detention. Rehabilitative considerations, which are to the fore in
5 R v Hill CA559/07 29 February 2008.
the present case, were expressly considered to be important in determining whether to impose a sentence of home detention when the Court of Appeal stated at para [37]:
Where an offender is motivated to change, and where there is a realistic prospect that he or she will be able to change, there are obvious benefits in a sentence of home detention, both from society’s perspective and from that of the offender.
[21] You have provided an address for the purposes of home detention which is not your home, which is to be forfeited. I am, therefore, of the view that the combination of the new address being provided, and your rehabilitative needs points strongly towards home detention as being appropriate in the circumstances.
[22] First of all, I make an order under s 142N Sentencing Act 2002 forfeiting your home that you jointly own with Ms Rolfe at 34 Unsworth Road, Hamurana, Rotorua, being the land and buildings described in certificate of tile SA16C/226 as a fee simple estate being 2424 square metres more or less on Lot 15-16 Deposited Plan South Auckland 1155. This forfeiture is subject to the interest of Mortgage Holding Trust Company Limited. At the request of the Crown I make an order under s 35(e)(v) Criminal Proceeds (Recovery) Act 2009 directing the Official Assignee to sell the restrained property immediately. I also order the forfeiture and destruction of the cannabis found at your home. I also order the forfeiture of the cash of $2260 found by the police at your home.
[23] Secondly, I sentence you to eight months home detention on the following conditions:
(a) Upon release from Court you are to travel directly to 32B Charles Road, Hannahs Bay, Rotorua and await the arrival of a probation officer and security officer;
(b)To reside at 32B Charles Road, Hannahs Bay, Rotorua for the duration of the sentence;
(c) Not to possess or consume alcohol and/or illicit drugs for the duration of home detention;
(d) To report to a probation officer as directed;
(e) To attend and complete any recommended counselling or treatment, including in-patient treatment for the abuse of alcohol and/or other drugs to the satisfaction of the probation officer and programme provider.
[24] I also impose the following post-detention condition, namely:
(a) to undertake and complete any remaining rehabilitative programme, counselling treatment and maintenance follow-up programme as directed by the probation officer.
[25] In addition, to add a punitive element to the sentence I also sentence you to
200 hours community work.
[26] Ms Rolfe, you have pleaded guilty to one charge of permitting premises to be used for the commission of an offence against the Misuse of Drugs Act between 1
January 2009 and 27 August 2010. That charge related to the home that you and Mr Sharp jointly owned at 34 Unsworth Road, Hamurana, Rotorua. The maximum penalty for that offence is three years imprisonment. At the time that you pleaded guilty on 18 March 2011, after committal to stand trial, no evidence was offered by the Crown in respect of a charge of cultivating cannabis and you were discharged pursuant to s 347 Crimes Act 1961 on that charge.
[27] As to your personal circumstances, you have three previous convictions, two of which are cannabis related. In 2000 you were convicted and sentenced to 80 hours community service on possession of cannabis and cultivation of cannabis charges.
[28] The pre-sentence report shows that you are a 38 year old woman of European descent. You have two children with Mr Sharp. You described a 19 year “on and off” relationship with him in which you are currently separated but remain close. You reported a good upbringing and remain close with your family. After leaving
school you have been largely employed in administration, early childhood, special needs and hospitality sectors. Currently, however, you are receipt of a sickness benefit.
[29] A harmful pattern of drug use was identified in the report and you confessed to using cannabis for the past 20 years. You described yourself as a heavy cannabis user since you had increased accessibility over the last three years. You claim to have abstained from cannabis use for the past six months and self referred to Te Utuhina Manaakitanga Trust as well. The report writer thought that there was a genuine motivation to change and live pro-socially.
[30] You attribute your offending to an attempt to keep the peace in the relationship with Mr Sharp. While you did not like the extent of the illegal operation you took no action for this reason, along with the fact that it supplemented your income and enabled you to meet your addiction needs. You have expressed remorse for your offending emphasising the effects on your children and the public humiliation that they have suffered. You think that your children will inevitably be affected by the sentences handed down to you and Mr Sharp.
[31] The report writer noted your cannabis use, disregard for the law and associates as key factors in your offending. Despite this you are assessed as having a low to medium risk of re-offending. A sentence of home detention coupled with rehabilitative programmes and appropriate post-detention conditions is recommended. A favourable home detention report is annexed to the pre-sentence report.
[32] The Crown submits that a starting point of between 18 months and two years imprisonment should be adopted. The Crown submits that the stage at which you entered your guilty plea after committal, only warrants a 15 percent discount. Again, the Crown does not elaborate on how much discount, if any, should be afforded to you in light of the forfeiture of your home.
[33] Your counsel submits that a sentence of supervision is the appropriate response to meet the need for denouncement and deterrence. He submits that there is
no principle guideline case for this particular type of offending. After noting your previous drug convictions, your counsel submits that you are remorseful and accepts that your actions have exposed your children to criminal activity. He notes your co- operation with the police and your genuine efforts to address your drug abuse.
[34] Your counsel submits a starting point of one and a half years imprisonment should be adopted and after adjustment for aggravating and mitigating factors a provisional sentence of 12 months imprisonment is appropriate. In that regard a sentence of home detention may be imposed in lieu of a sentence of imprisonment but if due consideration was given for the effect of forfeiture of your home upon your circumstances, then a sentence of a supervision to address drug issues may be imposed.
[35] There is no tariff for the offending of this type unlike cannabis cultivation but the cases of R v Edmonds6 and R v Bearsley7 cited by the Crown are both relevant. Given the starting points in Edmonds and Bearsley and the contrasting size of the operation in this case, I think that the starting point of between 18 months and two years imprisonment sought by the Crown is too high. It is in my view that an appropriate starting point is 15 months imprisonment.
[36] You deserve credit for your guilty plea despite the fact that it came after committal for trial as well as some credit for remorse. I accept, in those circumstances, that a 20 percent discount is appropriate which would mean the starting point can be adjusted to one of 12 months imprisonment.
[37] As far as the forfeiture of your home is concerned, I can take into account the loss of your interest in the home under s 9(4)(a) Sentencing Act which allows me to take into account any mitigating factor that I think relevant. Your interest in the home was equal to that of Mr Sharp and you should receive an equivalent discount in mitigation. I am, therefore, of the view that imprisonment is not warranted in your
case.
6 R v Edmonds [2009] NZCA 54.
7 R v Bearsley HC Tauranga CRI-2009-070-4244, 19 June 2009, Lang J
[38] However, I am keen that you maintain your efforts to rehabilitate yourself and remain drug free. I am glad to learn this morning that you have an offer of employment.
[39] Accordingly, I sentence you to supervision for a term of nine months under s 45 Sentencing Act 2002. You are subject to the standard conditions of supervision set out in s 49 of the Act. You are to report to the Probation Service as soon as practicable - not later than 72 hours after this sentence. You will then be advised of the other standard conditions of supervision.
[40] I also impose a special condition under s 52 of the Act that you are to attend and complete any recommended counselling or treatment, including in-patient treatment for the abuse of alcohol and other drugs to the satisfaction of the probation officer and the programme provider.
[41] Both you and Mr Sharp can now stand down.
Woolford J
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