R v Spencer HC Tau CRI 2009-070-9161

[2010] NZHC 42

IN THE HIGH COURT OF NEW ZEALAND

TAURANGA REGISTRY

CRI 2009-070-9161

THE QUEEN

v

LAURENCE DAVID ARTHUR SPENCER

Charges:Possession of cannabis for supply; Cultivation of cannabis;

Theft of electricity

Plea:               Guilty

Appearances:  Duncan McWilliam for Crown

Nicholas Dutch for Prisoner

Sentenced:     5 February 2010

Cannabis charges - 2 years 3 months imprisonment
Theft of electricity - 2 months imprisonment (terms concurrent)

SENTENCING NOTES OF HARRISON J

SOLICITORS

Ronayne Hollister-Jones Lellman (Tauranga) for Crown

NM Dutch (Tauranga) for Prisoner

R V SPENCER HC TAU CRI 2009-070-9161  5 February 2010

Introduction

[1]      Mr Spencer, you appear for sentence today following pleas of guilty in this Court to charges of cultivating cannabis, possessing cannabis for supply, and theft of electricity.   The maximum term of imprisonment to which you can be sentenced on any one charge is eight years.  The appropriate sentence will primarily be determined by the relevant facts.

Facts

[2]      On 25 August 2009 the police searched your garage.  In it they found a large meat cooler which had been converted into a growing room.  That contained 55 fully mature  cannabis  plants  with  cannabis  head  material  growing  in  pots  under  grow lamps.  About nine of these plants were over 900 mm in height but most - some 46 - were about 1300 mm in height.   They also found a freestanding carbon filter, floor fans, and thermometer and humidity meters.

[3]      Also the police  found  a  caravan  with its windows covered which had  been converted into a growing room.  Inside there were 91 cannabis plant growing in pots under grow lamps on timers.  Some 30 of these plants were about 1100 mm in height and mature with cannabis head material and the rest were between 700 and 900 mm. Again they found a freestanding carbon filter, oscillating fans, and thermometer and humidity meters.

[4]      Further  the  police  found  in  a  wooden  box  under  a  pool  table  66  cannabis seedlings  about  150 mm  in  height  growing  under  lamps  in  two  plastic  containers. Another box in the corner of the garage contained three mother plants.  There were a large  number  of  chemicals,  hormone  gels,  fertilisers  and  nutrients. There  were additionally   two   high   carbon   filters   with   a   motor   attached,   floor   fans,   and significantly  40 ounce  bags  of  dried  cannabis,  some  in  the  clothes  drier  and  most under the sink bench.

[5]      Also significantly you had altered the power board to avoid paying for power consumption.  The value of the electricity stolen is estimated to be $1,741.

[6]      There is a dispute about the value of the cannabis head material.  The Crown, based  on  the  evidence  of  Detective  Kingsbury,  says  that  each  plant  would  have yielded two ounces of dried material and that the total crop would have been worth about $127,000.  You say that each plant would have yielded about half an ounce of material, to a total value of about $25,000.

[7]      It is not necessary for me to resolve that difference.  Assessments of value in this  area  are  notoriously  difficult. A proper  assessment must lie  somewhere in between. I accept Mr Dutch's submission that the detective's estimate represents a hypothetical top market value.   It would be appropriate for a sophisticated operator with  well  settled  contacts  and  a  distribution  outlet.   You,  I accept,  were  a  relative novice and did not have access to a network which would have allowed sale on the level suggested by the police.   Doing the best I can in the circumstances, I estimate the value of that crop potentially at $50,000.

Starting Point

[8]      Against that background, Mr Spencer,  I must fix the starting point for  your sentence.   The  starting  point  is  the  term  of  imprisonment  which  is  appropriate  to reflect the circumstances of the offending taken on their own.  Then I must consider any favourable or adverse personal circumstances.

[9]      Needless  to  say,  I  am  familiar  with  the  leading  authority  of  the  Court  of Appeal in this area (R v Terewi [1999] 3 NZLR 62 (CA)) and many decisions in this Court. I am satisfied that you were operating for profit. The facts disclose that your operation was of a relatively sophisticated nature. While you may have obtained all the information from the internet and it may have been your first venture into cannabis cultivation, you plainly had organised the operation carefully. You knew what you were doing. You had a deliberate end in mind. That was to make a significant amount of money from trafficking in illegal drugs.

[10]     In  my  judgment  the  appropriate  starting  point  on  the  charge  of  cultivating cannabis alone is three years.  That must be uplifted by a minimum of six months to take account of the charge of possession for sale.  It matters not how that three-and-

a-half years is broken down.  Overall the appropriate starting point for your cannabis dealing  offending  is  three-and-a-half  years.             An  additional  three  months  on  the starting point is appropriate for the theft of the electricity.  Thus the ultimate adjusted starting point is three years nine months.

Mitigation

[11]     You  are  entitled  to  a  substantial  discount  for  your  early  plea  of  guilty.   It represents two things. One is  your admission of wrongdoing and  your atonement. The other is that it saves the state the cost and inconvenience of a trial.

[12]     It is often said that personal circumstances do not count for anything when sentencing for drug dealing offending.   However, I take into account that you have been of good character before this offending.   You, as the probation officer's report indicates, live in a stable domestic relationship.  You are 30 years of age.  You reside with your partner of some years and her six month old daughter.  She is expecting a child to you in April 2010.

[13]     Of concern, though, as Mr McWilliam has emphasised, are statements by you

to the probation officer.  You show little insight into your offending.  You sought to justify your actions.   While you proclaimed that you would not offend in this way again,  you  argued  that  you  were  right  to  do  this  because  you  were  struggling financially and had no means of supporting the family.   The probation officer notes your  sense  of  entitlement,  the  monetary  gain,  and  your  apparent  addiction  to cannabis.

[14]     Mr Dutch today says that you will never offend in this way again.   I am not

so certain given those factors.  However, all I need to point out to you, Mr Spencer,

as an intelligent man, is that if you undertake this activity again you will inevitably

be caught.  Equally inevitably you will go to prison for a long term.

[15]     I  am  prepared  to  make  a  substantial  discount  against  that  starting  point  of three years and nine months to take account of your guilty plea and some favourable aspects  of  your  character. In  the  result  you  are  sentenced  to  concurrent  terms  of

imprisonment of two years and three months on the charges of cultivating cannabis and  possession  for  supply.  You  are  also  sentenced  to  a  concurrent  term  of imprisonment of two months on the charge of stealing electricity.  An order is made for forfeiture and destruction of the cannabis.

[16]     The future is in your hands, Mr Spencer.  Please stand down.

Rhys Harrison J