R v Warren HC Hamilton CRI 2011-073-000184

[2011] NZHC 2068

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2011-073-000184

THE QUEEN

v

GRANT LESLEY WARREN

Hearing:         13 September 2011

Appearances: P Cornege for Crown

A Jones for Warren

Judgment:      13 September 2011

SENTENCING NOTES OF WOOLFORD J

Solicitors:

Crown Solicitor, Hamilton.

Ms A Jones, PO Box 27009, Hamilton. Email:  [email protected]

R V WARREN HC HAM CRI 2011-073-000184 13 September 2011

[1]      Mr Warren, you have pleaded guilty to two counts of cultivation of cannabis (maximum penalty of 7 years imprisonment),1  possession of equipment (maximum penalty of five years imprisonment)2  and theft of electricity (maximum penalty of seven years imprisonment).3

[2]      On 1 February 2011, police executed a search warrant at the rural property where you lived.  Your associate lived in the house and you resided in a bus on the property, which  you also used to grow cannabis.   Police located a total of 287 cannabis plants inside the bus, a crate beside the bus, a van, and in a shed at the back of the garage.  The cannabis plants were grown in plastic-lined rooms, with extractor fans and heat lamps on timers.

[3]      The  bus  was  connected  to  a  power  box  in  the  garage  which  had  been tampered with to conceal your power use.  The estimated loss to Trust Power has been calculated at $10,029.

[4]      The  equipment   located   included   fertiliser,   power  boxes,   water  spray containers, extension cords and multi-plugs.

[5]      You stated that this was the second crop of cannabis that you had grown at the property.

[6]      A police affidavit filed estimated that the potential yield of the plants (at maturity) was between 65 and 391 kg of cannabis head.  The wholesale value of that crop, it is said, would be between $430,000 and $4,305,000; the retail value between

$1,302,980 and $7,817,880.

[7]      Your counsel disputes that you could have made those amounts.  The police

affidavit describes over half the plants as being in “poor condition” and as such she

1      Misuse of Drugs Act 1975, s 9(2).

2      Ibid, s 12A(2)(a).

3      Crimes Act 1961, s 219 and 223(b).

submits that it is highly speculative as to whether they would have ever reached maturity.

[8]      Counsel for the Crown has today conceded that the plants in poor condition can be discounted or put to one side as not worth anything.   I agree with that approach judging by the photographs I have seen.

[9]      So I sentence you on the basis that the police found 63 cannabis plants in your bus nearing maturity and 74 other small cannabis plants in the shed nearby which were in reasonable condition. These were, I infer, to replace the cannabis crop in your bus once it was harvested.  That is, I approach the case on the basis of 137 cannabis plants being found at your property.

[10]     Crown counsel has today accepted that if all those plants reached maturity a conservative estimate of its value would be $205,500.

Counsel’s submissions

[11]     The  Crown  submits  that  you  ran  a  relatively  sophisticated  commercial cannabis  growing operation, with a comparatively large crop.   You had already successfully harvested a previous crop of cannabis.   Given the nature of your operation, the Crown seeks a starting point at the lower end of category three of the Court of Appeal’s guideline judgment on cannabis offending, R v Terewi,4 being four years imprisonment.  The Crown further seeks an uplift in respect of your previous convictions, before a discount is applied for your guilty plea.

[12]     On your behalf, Ms Jones submits that your offending falls within the lower to middle of category two of Terewi and that a starting point of two to two and a half years imprisonment is warranted.   She submits that your operation was relatively unsophisticated  and  there  is  no  evidence  that  you  were  growing  cannabis  for

commercial gain. You claim the cultivation was for your own use.

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

[13]     In deciding what sentence should be imposed upon you I have to take into account the established sentencing principles.5    There is a strong public interest in denouncing drug offending and imposing a sentence on offenders that will deter others.  I must take into account the gravity of your offending and the degree of your culpability.  The sentence I impose on you must be consistent in kind and in length with those imposed on others who have offended in a similar way.  Finally, I have to

look to ways to assist your rehabilitation and reintegration into the community.

Culpability of offending

[14]     In approaching sentencing I first consider the culpability of the offending itself without considering matters relating to you personally, and I fix a starting point in relation to that offending.

[15]     In terms of aggravating factors of your offending, there is the loss, damage and harm that results from drug offending.6    There was also the element of premeditation, although that is to an extent inherent in the charges.7

[16]     R v Terewi8  sets out the sentencing guidelines for the cultivation, possession for supply, and sale of cannabis.  No distinction should be made between the three offences at sentencing.9  There are three broad categories of cannabis offending:

Category 1:   involves growing a small number of cannabis plants for personal use without any actual or intended sale to another party.   It is generally appropriate to impose a fine or non-custodial sentence.  The offender may be subject to periodic detention or a short prison term where

there has been supply to others on a non-commercial basis.

5      Sentencing Act 2002, ss 7 and 8.

6      Ibid, s 9(1)(d).

7      Ibid, s 9(1)(i).

8      R v Terewi [1999] 3 NZLR 62 (CA) at [4].

9      R v Duncan [2009] NZCA 18; R v Taui CA494/05, 14 June 2006.

Category 2:  involves small-scale cultivation of cannabis plants for a commercial purpose (profit).  A starting point of two – four years imprisonment is generally appropriate, but a lower starting point may be taken if sales are infrequent and of a limited extent.

Category 3:  the most serious offending involving large-scale commercial growing “usually with a considerable degree of sophistication and organisation”.   The starting point for this category is four years imprisonment or more.

[17]     The Crown has cited and summarised three cases.  First of all it has referred to the Court of Appeal’s decision in R v Pure,10 where the Court upheld a sentence of four years imprisonment on a charge of cultivation of cannabis and two years imprisonment on charges of selling cannabis and possession of cannabis for supply. There was clear evidence of commerciality with the appellant admitting he sold cannabis to pay for some bills for his children and himself.  There were 382 healthy

plants discovered on execution of a search warrant together with a 1kg of cannabis material and 281 grams of seedless female cannabis head material.  Cash and tinnies were also recovered.

[18]     The Crown has also referred me to two sentences, being R v O’Donnell11and R v Cross.12     In  R  v O’Donnell, police recovered almost 6kgs of good quality cannabis bud, 2.39kg of cannabis stalks, 61 mature plants and 38 seedlings.  Again, there was clear evidence of commerciality, with $24,400 cash found in the house,

mostly under the prisoner’s  bed.    From  a starting point  of four and  half  years imprisonment, a final sentence of two years and seven months imprisonment was imposed on three charges of cultivating cannabis, selling cannabis and possession of cannabis for supply.

[19]     In R v Cross, the sentencing Judge adopted a starting point of four years

9 months imprisonment for a reasonably sophisticated cannabis growing operation.

10     R v Pure CA359/00, 20 February 2011.

11     R v O’Donnell HC Wellington, CRI 2009-032-2886, 23 October 2009, Miller J.

12     R v Cross HC Hamilton CRI-2005-079-705, 6 October 2005, Asher J.

The police found a large shed divided into two rooms, lined with plywood painted white.  Joints were foamed to ensure controlled temperatures.  Growing lights were suspended from ceilings.   A ventilator was fitted to the roof as well as fans.   A smaller shed was set up as nursery fitted with pink batts and plastic lining.  There was also an area set up to dry the cannabis.  Police found 398 plants, including 97 mature plants and 85 that were 500 mm high.   In addition there was 2kg of dried cannabis head.  Again, there was clear evidence of commerciality as the prisoner’s personal financial spreadsheets indicated that he was earning $1000 monthly from the operation.

[20]     Your counsel has referred me to two previous cases.   In   R v Latham13  the Court of Appeal allowed an appeal against a sentence of two years and two months imprisonment on a charge of cultivation of cannabis and 14 months imprisonment on a charge of theft of electricity.  It substituted sentences of one year and four months imprisonment and 10 months imprisonment respectively.   It also granted leave to apply for home detention.

[21]     When a search warrant was executed at the appellant’s property, the police found eight cannabis plants growing outside in containers and, in a roof cavity accessed through a manhole, three cannabis plants about a metre high, 400 cannabis cuttings,  94  cannabis  plants  about  20  to  30  centimetres  high,  and  another  117 cannabis plants also about the same height.  There was, however, no evidence of sale although there was evidence of supply or intention to supply to at least his co- accused.

[22]     The Court of Appeal took the view that although the number of plants and indicia of cultivation were reasonably significant, the likely yield was modest and evidence of supply, rather than sale, was minimal.  The Court thought it was on the borderline  of  category  one  and  two  of  Terewi.    A starting  point  of  two  years imprisonment was the appropriate starting point.

[23]     In the R v Bearsley and Moss14  Lang J sentenced the principal offender in a sophisticated cannabis growing operation to two years and one months imprisonment from a starting point of three years and six months imprisonment.

[24]     Mr Moss had buried a 40 foot container in a hillside accessed through a trapdoor in a shed.   The container had three rooms which housed a much more sophisticated operation than yours Mr Warren.  The police found 175 cannabis plants at varying stages of maturity.  The operation had potential to produce about $100,000 worth of cannabis per annum.

[25]     The Court thought that the operation was small in terms of quantity and volume as it had to be kept within the size of a container but there was a reasonable degree of commerciality involved.

Starting point

[26]     Given the facts in dispute and the range of estimated revenue it is difficult to determine the relative seriousness of your offending, Mr Warren.  However, in the end, I will give you the benefit of the doubt.  There is relatively little evidence of commerciality.   The Crown accepts that half the plants would not have reached maturity.  You are also undoubtedly a heavy user of cannabis, saying that you use two ounces a week.

[27]     On the facts before me I am of the view that a provisional starting point at the lower to middle of category two is appropriate, that is, two years and six months imprisonment.

Personal factors

[28]     You are 51 years old, employed as an orchard worker.   The pre-sentence report  discloses,  as  I  have  said,  that  you  smoke  approximately  two  ounces  of

cannabis a week.  Your attitude is that there is nothing wrong with using cannabis.

14     R v Bearsley and Moss HC Tauranga, CRI-2009-070-4244, 19 June 2009, Lang J.

You say you have no intention to cease using cannabis and you will continue to cultivate it for your own use.  You have outstanding fines which you say you do not intend to pay.   Your attitude makes it inevitable that you will continue to be imprisoned.

[29]     You have nine previous convictions for cannabis possession and cultivation, the most recent being two counts of possession in 2009.  You served a sentence of two years two months imprisonment on cultivation and possession charges in 2006. You served a sentence of two years and ten months imprisonment on cultivation and possession charges in 2002.  I therefore adopt an uplift of six months imprisonment in light of the repetitive nature of your offending.  This brings the end starting point to one of three years imprisonment.

[30]     You  pleaded  guilty  at  the  first  reasonable  opportunity  so  a  guilty  plea discount of 25 percent is warranted in terms of the Supreme Court decision in Hessell v R.15

Home detention

[31]     The offending is too serious to reach a short term of imprisonment whereby home detention may be considered.  In any event, given your lack of motivation to address your offending and your nine previous convictions for similar offending, a non-custodial   sentence   would   be   inappropriate.      The   pre-sentence   report recommends imprisonment.

[32]     I regret that is in fact the case, Mr Warren, because it seems that you do have the support of your ex-wife and your son, who offered you a home detention address in Te Kuiti.  The pre-sentence report also mentions the availability of programmes which may have been able to help you to address your offending patterns.  You have chosen not to engage at all with any of those.  You leave me with no alternative in these circumstances.

Reparation

[33]     Although  the  summary  of  facts  states  that  reparation  of  $10,029  is  also sought in respect of the stolen electricity, Crown counsel today acknowledges that, given the likely outcome of the sentencing today, it is inappropriate to make any order for reparation in respect of the electricity because you are just not in a position to pay it.

Sentence

[34]     So in conclusion, Mr Warren, from a provisional starting point of two years and  six  months  imprisonment,  I  have  given  you  an  uplift  of  six  months imprisonment for your previous offending, which takes me to an end starting point of three years imprisonment.  From that, you are entitled to a 25 percent discount for your guilty pleas, which leaves me with a final sentence of two years and three months imprisonment on the lead charges of cultivation of cannabis.

[35]     On both those informations (CRN 11073000089 and CRN 11073000071) you are sentenced to two years and three months imprisonment.

[36]     In respect of the secondary charges these are relatively minor and lesser sentences   are   warranted.      On   the   possession   of   equipment   charge   (CRN

11073000090)  you  are  sentenced  to  12  months  imprisonment.    On  the theft  of electricity charge (CRN 11073000072) you are sentenced to six months imprisonment.  These sentences will be concurrent with the sentence of two years and three months imprisonment on the cultivation charges.

[37]     You may stand down Mr Warren.

Woolford J