R v Stanley HC Auckland CRI 2009-004-22099

[2010] NZHC 297

IN THE HIGH COURT OF NEW ZEALAND

PALMERSTON NORTH REGISTRY

CRI-2009-004-022099

THE QUEEN

v

EARL PETER STANLEY

Charges:         1.        Cultivation of cannabis

2.       Dishonestly using a document (x2)

3.       Dishonestly accessing a computer system

4.       Breach of parole

5.       Assault

6.       Threatening to kill

7.       Wilful Damage

Plea:               Guilty

Counsel:          E C Killeen for Crown

O S Winter for Prisoner

Sentence:       9 March 2010

Imprisonment

1.        Five years

2         Fifteen months

3.        Fifteen months

4.        Four months

5.        Three months

6.        Three months

7.        Two months

All terms to be served concurrently

at Oral

SENTENCING NOTES OF MACKENZIE J

R V STANLEY HC PMN CRI-2009-004-022099  9 March 2010

[1]      Earl  Peter  Stanley  you  appear  for  sentence  on  one  count  of  cultivation  of cannabis,  one  count  of  threatening  to  kill,  two  counts  of  dishonestly  using  a document,  one  count  of  dishonestly  accessing  a  computer  system,  one  count  of wilful damage, one count of assault, and one count of breach of parole.

[2]      You were originally sentenced on all of those counts  in  the  District  Court. The sentence imposed on the cultivation of cannabis count exceeded the maximum which may be imposed on a summary conviction. That was done in  reliance  on

s 28F(4) of the District Courts Act 1947.  The Judge did not, in the circumstances in which  the  conviction  on  that  count  was  entered,  have  jurisdiction,  for  the  reasons discussed  by the  Court  of  Appeal  in  R  v  Hoe  [2001] 2 NZLR 633 and the earlier decision in R v McLeod [1998] 2 NZLR 65. The judge has accordingly vacated the sentence pursuant to s 77 of the Summary Proceedings Act. Because all of your offending is related, the sentences imposed on the other counts have also been vacated.

[3]      The offending which has brought you before this Court is the cultivation of cannabis.   In May 2009 police conducted a search at the address at which you were living.  A  sophisticated  hydroponic  cannabis  growing  operation  was  discovered inside the building including four good sized rooms fitted with lighting, cooling, and extractor  fan  systems.   There  were  a  large  number  of  growing  plants  found;   165 mature plants, and 132 smaller plants.  Approximately 11 plants were located drying and there was a large quantity of dried cannabis head.  The potential yield was in the region of $250,000.

[4]      This was, as the learned District Court judge recognised, large scale growing with a considerable degree  of  sophistication  and  organisation. The District  Court judge assessed your offending as falling at the bottom end of  category  3  in

R v Terewi [1999] 3 NZLR 62. That categorisation was clearly correct and I adopt it.

He adopted a starting point of four years.   In fairness to you, because of the way in which this matter has come before this Court,  I do not think that I should adopt a higher  starting point  than  that. That is the lowest starting point for category 3 of Terewi, and there is nothing in the circumstances of the offending which  would

justify me in adopting a lower starting point.  Accordingly, I adopt a starting point of four years for the cannabis offending.

[5]      As to the other offending, the dishonesty offending, and the assault and threat

to kill, were all offences committed against one victim, a person who was rooming with  you  in  an  alcohol  addiction  rehabilitation  centre.   You  obtained  the  victim’s bank account details and bank debit card to obtain funds exceeding $110,000.   You also  assaulted  and  threatened  the  victim.   The  breach  of  parole  count  arises  from your having failed to advise your supervising probation officer of a move of address in March 2009.

[6]      The sentencing judge, quite properly, adopted a cumulative approach and would have reached a total of eight years and nine months which, applying the totality  principle,  he  reduced  to  seven  years.  Again,  I  do  not  think  that  I  should adopt a higher total starting point. I do not think that you should be disadvantaged

by the jurisdictional error which was made.   I would, if I had reached a view that a lower  starting  point  was  appropriate,  adopt  that.  However,  I  do  not  reach  that conclusion.   I consider that a total starting point of seven years is amply justified to reflect the totality of your offending.

[7]      There are no personal mitigating factors, and the only mitigating factor to be considered  is  your  guilty  plea.  A  personal  aggravating  factor  is  your  previous convictions, particularly for dishonesty and cannabis cultivation.  The judge did not make  any explicit  uplift  for  these  aggravating  personal  factors.   For  the  reasons  I have given I do not think that I should do so.

[8]      For the guilty plea, the judge made an allowance of 25 percent.  That would

be one year and nine months, but the judge in fact the judge allowed a discount of two years.  Your guilty pleas were entered at depositions.  In terms of the guidelines

in R v Hessell [2009] NZCA 450, that was a generous discount. Again adopting the stance that you should not be disadvantaged by the jurisdictional error, I maintain that same discount. That means that I adopt the same total end sentence as the judge, that is five years.

[9]      The judge imposed that sentence by a combination of cumulative sentences.

I  intend  to  depart  from  that  approach.   The  one  count  which  requires  that  you  be sentenced in this Court is that of cultivation of cannabis.  You should be sentenced in this Court on a basis which reflects the totality of your offending, as I have done in calculating the  sentence.   To  avoid  any possible  issue  about  the  other  sentences,  I prefer to apply the total sentence to the cannabis offending, and impose concurrent sentences on the other offending,

[10]     You are accordingly sentenced as follows:

(a)       Five years on the cultivation of cannabis count;

(b)      Fifteen months on each of the dishonesty counts; (c)   Four months on the breach of parole;

(d)      Three months on the assault;

(e)       Three months on the threatening to kill;  and

(f)       Two months on the wilful damage.

[11]     All of those terms are to be served concurrently.  There will also be orders for the destruction and forfeiture of the drugs.

[12]     The judge imposed a minimum non-parole period in respect of the cannabis offending only.  He described that as required to hold you accountable for the harm

to the victims and the community, to deter you from committing further offences and

to   protect   the   community. He noted that rehabilitative prevention has been ineffective in the past.  He imposed a minimum non-parole period on the drug sentencing of 60 percent. For my part, having considered the relevant factors in s 86

of the Sentencing Act, I have concluded that the imposition of a minimum period is not in this case required.  A minimum period should in accordance with the guidance given by the Court of Appeal in R v Brown [3003] 3 NZLR 670 be imposed only where the offending is of a more serious nature than the ordinary range of offending.

Ms Killeen submits that a period should be imposed as you are a recidivist offender and that is necessary for the protection of the community from you.  I have taken the view  that  the  risk  should  not  be  addressed  by  the  imposition  of  a  minimum  non parole  period.      However,  you  attitude  and  your  willingness  to  participate  in  any rehabilitative efforts will clearly be relevant to whether you do in fact obtain parole.

[13]     That is all thank you.  Stand down.

“A D MacKenzie J”

Solicitors:            Crown Solicitor, Palmerston North

WinterWoods Lawyers, Palmerston North for Prisoner