R v Webby HC Napier CRI-2011-020-000664

[2011] NZHC 2067

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2011-020-000664

THE QUEEN

v

JAMES ROSS WEBBY

Hearing:         30 August 2011

Counsel:         J Rielly for the Crown

AJS Snell for the Prisoner

Judgment:      30 August 2011

SENTENCING REMARKS OF ASHER J

Solicitors/Counsel:

Crown Solicitor, DX MP70017, Napier 4140. Email:  [email protected]

AJS Snell, PO Box 101, Hastings 4156.

R V WEBBY HC NAP CRI-2011-020-000664 30 August 2011

[1]      James  Ross Webby,  you  have pleaded  guilty to  one count  of cultivating cannabis. The maximum penalty is seven years’ imprisonment.

Background facts

[2]      On  15  February  2011,  the  Police  had  gone  to  your  home  address  at

41 Buckingham Street, Whakatu and executed a search warrant.  On the floor of the master bedroom there was a polystyrene bin containing 34 cannabis clones.  There was a light in the bin connected to a power point.  There was a second polystyrene box found in the garage with 66 cannabis clones inside.

[3]      Of most significance was a custom built growing room found inside the garage which had been constructed using timber.  There were three smaller rooms inside the construction, two of which housed cannabis plants growing under lights. There was also a large carbon filter, extraction fan and heat lamps.  In the larger of the growing rooms there were 42 cannabis plants and in the smaller 10.  Heat lamps were used in both rooms.  The height of the cannabis plants was between 400 and

550 millimetres.  There was also a plastic bag and box in which there was stored 358 grams of cannabis leaf.

[4]      There was a fridge inside the garage which contained five grams of cannabis head, as well as 75 grams of cannabis leaf.   A small set of electronic scales and unused small plastic bags were located with the scales.

[5]      You were telephoned by the Police, Mr Webby, and you went to the Hastings Police Station with your lawyer.  You immediately admitted the growing operation and said it was your own, and that you had been growing cannabis in that manner for about three years. You explained that it was for your personal use as you suffer from long term back pain.

Principles of sentencing

[6]      In sentencing you I apply the purposes and principles set out in ss 7 and 8 of the Sentencing Act 2002 and the particular factors set out in s 9.  I must first set a

starting point taking into account the nature of the offending, without regard for personal factors.  In doing so I turn to the Court of Appeal decision of R v Terewi which sets out the three broad categories for sentencing for cannabis cultivation.[1]

Only the first and second are relevant here.

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

[7]      The first is category one for the growing of a small number of cannabis plants for personal use without any sale to other parties occurring or being intended.  The penalty for category one offending will generally be a fine or other non-custodial sentence.

[8]      Category two is small-scale cultivation of cannabis plants for a commercial purpose.  The starting point for sentencing there is generally between two and four years’ imprisonment.   Where sales are infrequent and of a very limited extent, a lower starting point may be justified.

Disputed facts

[9]      It was initially suggested that there would be a disputed facts hearing as to the level of commerciality of your growing of cannabis.  However, at the invitation of counsel I have expressed an initial view as to how I saw the degree of commerciality and the conclusion I have reached has not been contested by counsel.

[10]     My conclusion is this:  the quantities of cannabis that you were growing were very considerable indeed.   I do accept that you have been a very heavy user of cannabis and I will be elaborating on this shortly.  However, despite the fact that you were using large amounts of cannabis every day, the amounts you were growing and disposing of are consistent with at least some degree of commercial dealing or supplying to friends and associates.  That this is so is confirmed by the presence of scales and plastic bags.  It is hard to see why you would have had scales if it was not for the weighing of cannabis so you could supply it to other persons.

[11]     Having said that, I do accept that the driver behind your growing was your own cannabis habit.   The Police through Ms Rielly in very fair submissions have

accepted that you were a very significant user and suggested a start point of two to three  years’  imprisonment.     Your  counsel  in  his  equally  fair  and  balanced submissions has suggested a starting point of two years.

[12]     I have concluded that the correct starting point is towards the bottom of category two.  Given the amounts involved it cannot be at the very bottom.  I fix a starting point of two years and three months’ imprisonment.

Personal factors

[13]     I now turn to factors relating to you personally.   I have the benefit of a probation report.  That report assesses you as at low risk of further offending and recommends a sentence of home detention.

[14]     I have not only the benefit of the views of the probation officer, but I also have a number of testimonials supplied by your counsel that speak very highly of you, and I will return to these.

[15]     Your record shows some minor offending in 1992 and 1993 when you were a young man, but no offending since. You have been employed it would seem through your adult life.  For some years you have held a senior position with a significant New Zealand honey producer. You had been, until now, a beekeeping block manager working in the Hawke’s Bay region.  Your work included management of beehives, supervision of junior staff and other beekeeping work.

[16]     Beekeeping requires quite a lot of physical activity and strain on the back. You have a severe back problem.   On your account you had been consuming extraordinary  amounts  of  cannabis  per  day.    Unusually  approximately  a  month before the search warrant was executed in February 2011 you went to see your doctor seeking help in relation to your cannabis habit. You recognised that you had a major problem and wanted to fix it.

[17]     You were of course still growing cannabis when the search warrant was executed, but since then you have stopped using it entirely.  Recent reports indicate

that you have no presence of cannabis in your body.  It would seem then that you have kicked your habit.  You have been supported in this by your partner, who has throughout opposed your use of cannabis and wanted you to stop.   She is a good member of our community and you have between you two children aged seven and

15.   Your  youngest child has a  difficult medical problem that requires ongoing attention and a lot of work from you and your partner.

[18]     Clearly you could not have carried on consuming cannabis the way you were. If the Police had not intervened in the end the medical consequences would have been severe.  You appear to recognise this.  You appear to be genuinely remorseful and indeed the fact that you had sought help before your arrest is a most unusual feature of this sentencing and a clear indication of your good faith.

[19]     So, putting to one side issues of your good character and guilty plea, which I will deal with next, I consider your remorse exceptional.  A discount for remorse, in addition to the discount for a guilty plea, in the area of seven per cent is justified.

[20]     Now I have already said a bit about your character.   You appear to be a competent man, a good employee, a good father and partner, although of recent years this  must  have been  blighted to  an  extent  by  your  cannabis  use.    I  have been particularly  impressed  by  the  statement  I  have  received  from   your  doctor, Dr Beacham, which shows you to be a good family man and a caring father who worries about the health of his youngest child and is doing his best with his partner to find a cure for his condition. You are entitled to a credit for the good life you have led.  So I am going to give you again a comparatively high percentage discount for your good character, which again will be in the vicinity of seven to eight per cent.

[21]     The total discount then that I am prepared to give for remorse and good character is 15 per cent.

[22]     That would in itself bring your sentence down to just under 23 months’ imprisonment.  From that you are entitled to a full credit for your guilty plea which was entered at the first possible opportunity.  Although the Crown case would have been strong, you immediately went to the Police and spoke to them very frankly,

giving them information you did not need to give.  So in those circumstances you will get the full 25 per cent, which would reduce the period of imprisonment to approximately 17 months.

Home detention

[23]     At this point, your sentence being under two years’ imprisonment, I turn to consider the issue of whether you should have a sentence of home detention or some other sentence rather than imprisonment.

[24]     There is a report from the Department of Corrections that records that the address that home detention would take place would be your father’s three bedroom home at 56 Whitby Crescent, Flaxmere.  Your father and his partner are regarded as appropriate occupants and they are supportive of you.  You are able and willing to comply with a sentence of home detention.

[25]     There are real advantages in sentencing you to home detention.  While you have given up your job as a beekeeper anticipating a sentence which will preclude that work, you can take another job close to home.  That is what you wish to do, and of course maintain close contact with your family.

[26]     Given the mature attitude you show to your offending, your wish to work and your responsibilities to your family, home detention seems to me to be entirely the right option.

[27]     A question  arises  whether  this  should  be  combined  with  a  sentence  of community work.  Such a further sentence taking up Saturdays would give you less time to work and to be with your family and I do not consider it appropriate.

[28]     So I am going to sentence you to home detention.  The only issue is for how long.   It is recognised that home detention has the characteristics of a full time custodial sentence and sentences tend to be approximately half of the sentence of imprisonment that might otherwise be imposed.  In all the circumstances a sentence

of eight months’ home detention is the correct sentence on the conditions set out in the pre-sentence report.

Result

[29]     Mr Webby, I sentence you to eight months’ home detention, which will be on the three conditions set out in the pre-sentence report being:

(a)      You are to reside at 56 Whitby Crescent, Flaxmere and not to move from that address without prior written approval of your probation officer.

(b)You are to attend and complete alcohol and drug counselling to the satisfaction  of  your  probation  officer  and  programme  provider. Details of appropriate programme to be determined by your probation officer.

(c)      You  are  to  abstain  from  the  consumption  and  the  possession  of alcohol and illicit drugs for the duration of the home detention sentence.

[30]     Mr Webby it is unusual to have someone appear on such a serious charge who appears to have such good character and have such genuine remorse.  You and your partner impress as good people, not of a criminal type at all, and you have the opportunity of having a long and happy life together with your children.  But there is a great cliff beside you which you will fall into if you return to cannabis use.  I am sure you realise that and you will not start growing or using cannabis because that would be the way to disaster.  I wish you all the best.

[31]     Please stand down.

……………………………..

Asher J