R v Simeon

[2012] NZHC 1999

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2010-015-675 [2012] NZHC 1999

QUEEN

v

JOSEPH PATRICK SIMEON

Hearing:         9 August 2012

Counsel:         M G Sinclair for Crown

P S Coles for Prisoner

Sentencing:     9 August 2012

SENTENCING NOTES OF MILLER J

[1]    Mr Simeon, you appear for sentence on one charge of cultivating cannabis and another of possessing precursor equipment, isopropyl alcohol, which can be used to produce a Class B drug, cannabis oil.

[2]    The matter has a tortuous history which I need not outline here.   You were arrested as long ago as November 2010 and it is now common ground that you pleaded guilty early enough to earn the full 25 per cent discount.  A disputed facts hearing was then held to establish the degree of commerciality in your operation. The narrative which follows reflects the findings made by Judge Atkins at that hearing, before he declined sentencing jurisdiction and referred you to this Court for

sentence.

R V SIMEON HC PMN CRI-2010-015-675 [9 August 2012]

[3]    The cannabis was found at a Feilding home occupied  by your ex-partner. Forty-nine growing plants were found in a grow room in the garage.   It was a moderately sophisticated setup, involving a fan, grow lights, transformers, ducting and fertiliser.  The power had been re-routed to bypass the meter.  Also present were

203 cuttings.  The Judge was satisfied that there was a commercial element to your activity.   I agree, and I add that the durable nature of this setup is arguably more cogent evidence of commerciality than the yield from the growing plants.  I am not prepared to accept Mr Coles’ submission that as you were no longer living at the address you had no security of tenure, to use his term, in the setup.   I do accept, however, that you consumed some of the cannabis yourself.

[4]    The Judge found that all of this put you into Category 2 of Terewi.  I agree.  In my opinion it invites a starting point of two years and eight months imprisonment, taking into account the second charge.

[5]    The presentence report describes you as a 32 year old, of Tainui descent.  You have three children and although they do not live with you, you do see them every weekend.  You are not presently in a relationship according to the report.

[6]    You are employed as a shearer.  Your employer says you are a reliable hard worker and he has put you in charge of a gang.  He says he will keep a job open for you.

[7]    You do have a harmful pattern of alcohol and drug abuse, and you have a number of convictions.  Two involve cannabis, the last in 2006, and there are two for driving with excess alcohol.   Perhaps more importantly for present purposes, you have a number of convictions for breaching court orders or sentence conditions:  you have convictions for breaching periodic detention (3), breaching bail and driving while disqualified.   However, most of those convictions are very old.   You have complied with two more recent sentences of community work, and as I will shortly explain you have been taking steps to rehabilitate yourself.  I am prepared to accept in the circumstances that you will comply with a community-based sentence.  That is an important consideration, Mr Simeon, because home detention is a burdensome

sentence and I would not impose that sentence upon you if I thought you were going to fail.

[8]    I  have  indicated  that  I  will  take  a  starting  point  of  two  years  eight imprisonment for the two charges.   I must also take into account any personal aggravating factors, but having reflected on that I will not add anything for your previous convictions.

[9]    In mitigation, I have said you are entitled to 25 per cent for your guilty pleas. The question is whether any further allowance should be made.  There is reason to believe  that  you  are  addressing  your  use  of  cannabis  successfully.    You  have attended  drug  and  alcohol  counselling  at  MASH  and  I  am  told  that  drug  tests confirm you have not been using cannabis.   You appear motivated, and you have engaged well with the probation officer.  You have undertaken an anger management course, which arises out of your more recent convictions relating to a protection order.  I will make an additional allowance of four months for those matters.

[10]  That brings me to an end sentence of twenty months.

[11]  That sentence admits the possibility of home detention, which I have been asked to impose with community work.   This raises the question as Ms Sinclair submits whether deterrence and denunciation require that I impose a sentence of imprisonment.  As to that I place this offending at the lower end of Category 2 and at that level home detention with community work may sufficiently meet the objectives of deterrence and denunciation.

[12]  As I have indicated, it would concern me if it were likely that you might continue to offend while on home detention.  As to that, I have already referred to your efforts at rehabilitation, and I am prepared to assume that you will sustain those efforts, knowing that should you breach by using drugs you will face re-sentencing. You are now 32 and you should be able at that age to sustain the discipline needed to comply with these conditions over what will be a lengthy period of confinement.

[13]  There is a suitable address with your sister.   Accordingly I am prepared to impose home detention coupled with community work.

[14]  So, your sentence on the cannabis charge will be ten months home detention, with 300 hours community work.  There will be a concurrent sentence of six months home detention on the possessing equipment charge, recognising that it is a distinct and significant matter in itself.  The conditions of the sentence are as per the pre- sentence report dated 25 May 2012, that is:   you are to  go immediately to 21

McCorkindale Street, Feilding and there await the arrival of probation officer and the monitoring company representative;  you are to live at that address for the duration of the sentence;   you are to abstain from using or possessing alcohol and non- prescription drugs unless prescribed by a medical practitioner for the duration of the sentence;   you must attend any alcohol and other drug assessment and attend and complete any treatment or counselling as recommended by the assessment, to the satisfaction of both the probation officer and a treatment provider, and that may involve ongoing monitoring in the form of drug tests.

[15]  There will be an order for destruction of all of the cannabis related items seized at the premises.

[16]  You may stand down

Miller J

Solicitors:

Crown Solicitor’s Office, Palmerston North for Crown

Broadway Legal Chambers for Prisoner