R v Turner

[2012] NZHC 1897

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2011-054-2891 [2012] NZHC 1897

QUEEN

v

JAMIE ALAN TURNER

Hearing:         31 July 2012

Counsel:         A Read for Crown

R Bedford for Prisoner

Sentencing:     31 July 2012

SENTENCING NOTES OF MILLER J

[1]    Mr  Turner,  you  appear  for  sentence  on  two  charges,  one  of  cultivating cannabis and the other of possessing it for supply.  The charges were laid summarily and the District Court has declined jurisdiction.

[2]    The summary of facts records that on 26 August 2011 the police executed a search warrant at the home you shared with  your partner.   There they found a substantial cannabis growing operation.   One bedroom had been fitted out as a growing room, lined with plastic, ducted for ventilation, and equipped with heaters and fans.  In that room were found six growing plants and 96 small pots containing potting mix and stumps of cannabis plants.   That indicates that plants had been grown from cuttings and transplanted to larger pots.   In the second bedroom was

found a setup for growing plants in a cabinet.  Sixty-three cuttings were found in the

R v TURNER HC PMN CRI-2011-054-2891 [31 July 2012]

kitchen, together with 1.5 kilograms of cannabis head.   The police finally found another 400 grams of cannabis, that makes a little less than two kilograms in all.

[3]    Electronic scales were present but none of the other usual paraphernalia of a dealer, such as tick lists or cash, were found.

[4]    You account for the offending by saying that you were addicted to cannabis, which you and your partner smoked in substantial quantities.  You also claim that you were depressed after the death of a close friend.  I am prepared to accept that you did consume a good deal of your own product, but you must be taken to admit the facts essential to the plea of guilty, namely that you had the cannabis for supply. In any event the quantity of cannabis and scale of the operation were such that I could not possibly accept that you were growing for personal use.  The scales too are a strong pointer towards commercial purpose.

[5]    The pre-sentence report records that you are 28 and you were living with your partner of ten years.  As a couple you have two children who live with other family members.

[6]    You pleaded guilty as long ago as 21 September 2011 and were remanded for sentence in the District Court on 18 November.  You did not appear in Court on that day, having panicked when you learned that the Crown had invited the District Court to decline jurisdiction.  You appear to have gone bush in order to evade sentence. You were eventually found and arrested on 4 June 2012.

[7]    Your previous convictions are significant, although only two involve drugs and those were in 2002 and 2003.  You have offended regularly since 2000, and there are a significant number of convictions for breach of community-based sentences for breach of bail, and a number for offences of dishonesty.   Notably, you have been sentenced to community work for breaching your one previous sentence of home detention, and you then failed to comply with the community work sentence.  You have not previously been sentenced to imprisonment, and you claim to have found your remand in custody since 4 June a salutary experience.

[8]    An  experienced  probation  officer  now  recommends  home  detention.    The home nominated is that of your mother and brother, and it is proposed that your partner will also live there.   The probation officer feels some confidence that you will comply with the terms of your home detention because your time on the run, and in custody subsequently, has resulted in you drying out.

[9]    I must begin with a starting point.  Having regard to the quantity, the evidence of investment in a durable setup, and the presence of scales, I am satisfied that your case falls in the middle of Category 2 in R v Terewi.  That category attracts a starting point of two to four years.

[10]  I have considered comparable cases, which I will list in my sentencing notes, and they lead me to adopt a starting point of two years and nine months imprisonment.[1]

[1] R v Collings [2008] NZCA 30; R v Taylor HC Rotorua CRI-2009-077-806, 13 November 2009; R v Young HC Palmerston North CRI-2006-054-3336, 8 December 2006;  R v Hawke HC Auckland  CRI-2009-044-10006, 24 August  2010; R  v  Sharp  HC  Rotorua  CRI  2010-063-

004641, 22 July 2011;  and R v Warren HC Hamilton CRI-2011-073-184, 13 September 2011.

[11]  I will not add anything for your previous convictions.

[12]  In mitigation, you did plead guilty at the earliest opportunity and the Crown is prepared to accept that you should receive the full credit of 25 per cent for that. Your subsequent behaviour might suggest that you should forfeit that discount, but the Crown does not take that point, and I will not make anything of it today.  I do note that you have not been charged with breach of bail.

[13]  The total allowance I am prepared to make is eight months, which would bring me to 25 months imprisonment.

[14]  That sentence is too long to admit home detention, but I have to say I would not have imposed that sentence in any event.   Deterrence and denunciation are always dominant sentencing considerations in offending of this sort.   Sometimes

lenient sentences are imposed, but such cases are usually distinguished by concrete

prospects of rehabilitation and tangible efforts to that end.[2]     The case on which Mr Bedford relied today is an example of that.[3]   Although you have few prior drugs convictions  you  are  clearly  an  addict,  and  there  is  in  my  opinion  insufficient evidence that you have beaten your addiction, or have the commitment to do so.

You may not have been using recently, but that is due to the environment in which you have been living.  I note that no specific interventions are proposed.  It is to be hoped that something can be done for you in prison or on release conditions because otherwise you will find yourself back in Court.   Finally, you have a considerable history   of   noncompliance   with   community-based   sentences   including   home detention.    Your mother is clearly a decent person but, her best efforts notwithstanding, you could easily resume drug use in the home.

[2] R v Hobson HC New Plymouth CRI-2010-043-3699, 12 May 2011;  and Hutton v Police HC Wanganui CRI-2009-483-29, 4 September 2009.

[3] Larking v R [2011] NZCA 401.

[15]  So Mr Turner, your sentence is 25 months imprisonment on each charge, to be served concurrently.  There is an order for destruction of the forfeited cannabis and equipment.   I record that you still face charges of breach of community work and common assault and those matters will be dealt with in the District Court in due course.

[16]  You may stand down.

Miller J

Solicitors:

Crown Solicitor’s Office, Palmerston North for Crown