R v Sheehan HC Hamilton CRI-2011-039-151

[2011] NZHC 2037

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-039-151

THE QUEEN

v

KEVIN JOSEPH SHEEHAN

Hearing:         19 December 2011

Counsel:         R G Douch for the Crown

MLA Wright for the Prisoner

Judgment:      19 December 2011

SENTENCING NOTES OF ELLIS J

Solicitors:      Crown Solicitors, PO Box 19-173, Hamilton

Rae & Wright Limited, PO Box 2, Morrinsville 3340

R V SHEEHAN HC HAM CRI-2011-039-151 19 December 2011

[1]      Kevin Sheehan you have pleaded guilty to, and are to be sentenced today, for:

(a)      one charge of cultivating cannabis under s 9 of the Misuse of Drugs Act 1975 (the maximum penalty for that offence is seven years imprisonment); and

(b)one charge of unlawful possession of a pistol in terms of s 50(1)(a) of the Arms Act 1983 (the maximum penalty is three years imprisonment and/or a $3000 fine).

[2]      Many of the matters that are relevant to your sentencing today have been set out in my earlier judgment relating to the Commissioner’s application for instrument forfeiture.  In particular I set out there the facts of your offending and your personal circumstances.  I am not going to repeat those things now, although of course I take them into account.

[3]      In my earlier judgment I ordered that 70 per cent of your half share in the property located at 1162 Te Aroha Gordon Road, Manawaru should be forfeit to the Crown.    The  value  of what  you  have  lost  is  approximately $175,000  which  is considerably more money than your 64 cannabis plants would have yielded.  That forfeiture order will be taken into account by me in arriving at your sentence today.  I must also take into account the fact that your partner, Susanne Harrison, has been able to retain the value of her half share in the property.  But while it is important to recognise that you will almost certainly get some benefit from that, I do not lose sight of what you have lost.  That seems to me to be of particular significance in terms of any further need, through sentencing, to deter you and others from committing offences of this kind in the future.

[4]      Plainly, the cultivation of cannabis charge is the lead offence.  The Court of Appeal1  has set out sentencing guidelines for such offending.  As I indicated in my earlier judgment what you have done seems to me to fall within what is called

category two of those guidelines, which means that the applicable sentencing starting

1 R v Terewi [1999] 3 NZLR 62 (CA).

point sits somewhere between two and four years imprisonment.  Mr Douch for the Crown put your offending at a slightly higher level originally (between categories 2 and 3) but today said in light of my earlier judgment he would place it at the top of category 2.  While it seems clear enough that you were growing cannabis for profit, it was not a particularly large or sophisticated operation and you had not yet realised any gain from it.

[5]      On  the basis  of  my assessment  of the facts  of  your offending and  after considering a number of similar cases I agree with Mr Wright that a starting point of two years, six months imprisonment would be appropriate.

[6]      I must then adjust that starting point to take account of personal factors, although the Court of Appeal has said2  that in offending like this an offender’s personal circumstances are not usually to be given much weight.

[7]      You have two previous convictions, one for cultivation of cannabis, in 1981, and another for driving with excess blood alcohol.   The Crown submitted that an uplift of six months is required for your previous cultivation of cannabis conviction but again I do not agree – rather I agree with other judges in recent cases who have said that that is too long ago fairly to warrant any increase.3

[8]      In terms of factors that will operate to reduce any sentence of imprisonment from two years and six months there is your guilty plea and there is the forfeiture order and there is your remorse.  The Crown submits that a 20 per cent reduction is appropriate for the guilty plea and I agree with that.  Having considered those few other cases involving instrument forfeiture, all of which are fairly similar to yours, I consider that the appropriate further reduction for the forfeiture order and for your remorse (taking into account what has been retained by Ms Harrison) would give a

end sentence on the cannabis offending of 14 months imprisonment.

2 Terewi at [66]

3 In R v Sharp, Woolford J noted the historic nature of cultivation of cannabis offences which in that case, had occurred in 1991 and 1993.  His Honour did not think that they required an uplift.  In R v Loretz, Brewer J took a similar approach to possession of cannabis offences that had occurred in 1989 and 1996 for similar reasons.  I respectfully adopt the reasoning of those Judges in not imposing an uplift in your case.  Instead, I will treat both of your previous convictions as indicating an absence of previous good character.

[9]      Because  that  end  sentence  is  less  than  two  years  imprisonment,  home detention is available.  Mr Wright advised today - well in fact I got a fax today that the proposed address has been confirmed as suitable.   In your case I think home detention is an appropriate alternative to imprisonment particularly because it will enable you to keep working and to try and rebuild some of what you have lost. Home detention is no walk in the park and in your case is capable of meeting the purposes  and  principles  of  sentencing  that  I am  require  to  consider.   Although Mr Wright also asked me to consider community detention, I do not think that that would meet those purposes and principles of sentencing in your case.

[10]     Lastly, though I must also take into account the Arms Act offence, Mr Douch submitted that I should impose a cumulative sentence on you for this - that is a sentence that you will serve on top of your sentence for cultivating cannabis. As you may  know  the  Courts  often  regard  offences  involving  guns  or  weapons  as  an

aggravating feature when they occur at the same time as drug offending.4    On its

own, such an offence would usually warrant a cumulative sentence of six months imprisonment.  But I think the appropriate course here is to add a further two months home detention for the Arms Act offence.

[11]     Please stand, Mr Sheehan.  In formal terms, I sentence you to seven months home detention on the cultivation charge and two months home detention on the Arms Act charge, to be served cumulatively.  That means your final sentence will be one of nine months home detention - on the conditions set out in the home detention annex and on the standard conditions.

[12]     Please stand down.

Rebecca Ellis J

4 In R v Wade,4 Wylie J noted that although Arms Act charges and drug-related offending are different in kind, the courts have, at various times, accepted both concurrent and cumulative sentences and being appropriate.  His Honour pointed to4  the following cases in which concurrent sentences were imposed: R v Caldwell,4 R v Fonotia4 and Bishop v R,4 and the following cases in which cumulative sentences were imposed: R v Faifua,4 R v Bunning,4 and McDonald v R.4