R v Weir HC Auckland CRI 2011-057-1203

[2011] NZHC 1444

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-057-1203

Hearing:         18 October 2011

THE QUEEN

v

ISSAC JOHN WEIR

Appearances: M Galler for Crown

S Asmundson for Accused

Judgment:      18 October 2011

SENTENCING NOTES OF WHITE J

Solicitors:           Crown Solicitors, Manukau, Auckland:  [email protected]

Public Defence Service, Manukau, Auckland:  [email protected]

[1]      Mr Weir, you appear for sentence today on three charges.  You pleaded guilty to and were convicted of those charges in the District Court at Pukekohe on 14 June

2011.   That Court declined jurisdiction and transferred the matter to this Court to impose sentence.  Your offending results from a search of your house on 12 April

2011 and consists of:

R V WEIR HC AK CRI 2011-057-1203 18 October 2011

Offence	Section / Act	Maximum Penalty
Possession of a Class C drug (cannabis) for the purposes of sale or supply	s 6(1)(f) & (2) Misuse of Drugs Act 1975	8 years’ imprisonment
Cultivation of a prohibited plant (cannabis)	s 9(1) & (2) Misuse of Drugs Act 1975	7 years’ imprisonment
Possession of utensils	s 13(1) & (3) Misuse of Drugs Act 1975	1 years’ imprisonment and/or a fine not exceeding $500

Facts

[2]      On the morning of 12 April 2011, the New Zealand Police initiated a search at a rural property at 79 Aldred Road, Karioitahi.  You were the sole occupant of that property and were present when the police searched it. As a result of that search they found a significant cannabis growing operation and two firearms.

[3]      The scale of the cannabis growing operation is described in the summary of facts provided to me. The following important features of the operation were:

(a)      The Police located 143 cannabis plants growing in pots inside the house;

(b)74  of  these  plants  were  near  maturity  with  the  remainder  being somewhat younger;

(c)      You had set up growing rooms inside your house where cannabis was grown under electric lights within growing tents with extractor fans whose inner surfaces were covered with reflective foil;

(d)The Police located approximately two and a half kilograms of dried cannabis material.  You say that a large amount of this dried material was “cabbage”, that is to say leaves, stalks and other (non-bud) waste and that the true amount of saleable cannabis was around 12 ounces (about 340 grams);

(e)       You have admitted to selling cannabis to associates.  The Police found

$900 in cash when they searched your property and you say that came from selling ounces of cannabis to associates in the days prior to the search and that you sold ounces for $300; and

(f)       There was, however, no evidence from the Crown as to the expected value of the cannabis crop.

[4]      You co-operated fully with Police when they arrived at the property and indicated to them the location of a shotgun with a broken firing pin and a rifle.  You did not have a licence for these weapons.  The Crown appears to have accepted that they were, as you have said, for animal and pest shooting.  You were convicted and discharged on the firearms charge in the District Court at Pukekohe on 21 September

2011.

Personal Circumstances

[5]      Mr Weir, you are now 30 years old.   You have lived both here in New Zealand  and  in  Fiji  while  growing  up,  the  latter  as  a  result  of  your  parents’ separation.  You lost your brother in a natural disaster when you were younger, an incident which deeply affected you.   You left school after the fifth form, despite being assessed as intelligent, and you worked in roofing and in construction. Unfortunately you suffered injuries in that line of work that led to you being placed on a sickness benefit.  You have had other unfortunate medical difficulties in recent years  and  also  suffer  from Attention  Deficit  Hyperactive  Disorder  (ADHD)  for which  you  are receiving treatment.   You  have  previously been  treated  for drug addiction.

[6]      You are single and live alone.  It appears, however, from the material before me that you enjoy a good relationship with your father and that he is supportive of you.  Indeed I recognise that he is present in Court here this morning.

Prior Convictions

[7]      You  have a number of previous  convictions,  some of them  for cannabis related offending.  Your last relevant previous conviction was, however, in 2003 and for the purposes of sentencing those convictions do not have any real significance now.

Pre-sentence report

[8]      You have been spoken to by a member of the probation service who has prepared a pre-sentence report that I have received and which the Crown and your counsel have addressed in their submissions.

[9]      The report-writer notes that you have a harmful pattern of substance use, beginning with the misuse of medication used to treat your ADHD, and this has also included alcohol and, more recently, cannabis.   You have explained your current cannabis use as largely medicinal, designed to address pain you suffer as the result of other conditions.

[10]     You told the report-writer that you were regretful for your offending and that you wish to try and regularise your life and to reintegrate into the community and workforce.  You have taken some positive steps to address your fitness for work and your  drug  use.    The  Probation  Officer  believes  you  carry  very  little  risk  of reoffending and are of little risk to others.

[11]     The report-writer sees your drug use and health issues as factors in your behaviour.   She believes you have shown some motivation and efforts to change, however, she believes you seriously need to assess your drug use.   Her ultimate recommendation is for a sentence of home detention, with conditions that would see you abstaining from alcohol and seeking treatment.  The Police have not indicated any opposition to home detention, but I will address that further in the context of Mr Galler’s submissions.

Letters / References

[12]     I have received and read letters from health professionals in relation to your condition, which also include positive references to you personally.  In addition there is a letter from your martial arts instructor who speaks of your participation and motivation in a positive way.

Submissions

Crown Submissions

[13]     Mr  Galler  for  the  Crown  submitted  that  this  offending  demonstrated hallmarks of sophistication and commerciality that would justify a starting point of a sentence of three years and six months’ imprisonment, and that, with reference to the decision in R v Gemmell,1 the presence of a firearm was an aggravating factor.  In his submission the mere presence of the firearm was significant and created inherent dangers.  The Crown, however, did not seek an uplift for your previous convictions.

Mr Galler submitted that a discount of around 20% would recognise the timing of your guilty plea and the strength of the prosecution case, but did recognise other mitigating factors in your favour.   On home detention, the Crown was not able to consent because of the presence of the firearms, but at the same time, given your personal circumstances, the Crown did not vigorously advocate for imprisonment.

Submissions on your behalf

[14]     Mrs Asmundson, on your behalf, accepted that I should start by considering a term of imprisonment but should conclude that home detention was ultimately appropriate.  Her suggested starting point was two and a half years’ imprisonment, recognising the moderate sophistication of the cultivation and that sales of the cannabis were of minimal commerciality.  While she acknowledged that the presence of firearms was of concern, they should not be treated as an aggravating factor in the same way as in other cases where the firearms had been linked to the offending.  She emphasised your future prospects, rehabilitation, family support and remorse.  She

also submitted that you should be entitled to the full credit of 25% for your guilty

1 R v Gemmell CA271/01, 23 October 2001.

plea.  She referred in particular to the decisions in Larking v R2, R v Didham3 and R v Hobson4 and she submitted that if the Court were to accept that a sentence of home detention was appropriate a term of nine to 12 months would be suitable.  She also accepted that the conditions recommended by the probation officer were appropriate.

Purposes and Principles of Sentencing

[15]     In sentencing you, Mr Weir, I take into account the purposes and principles of sentencing prescribed by the Sentencing Act 2002.5

[16]     The  purposes  that  I  consider  most  important  in  your  case  are  that  your sentence:

(a)       should denounce your cultivation of cannabis and make it clear that it is illegal and unacceptable;

(b)should deter others from doing the same thing by showing that there are consequences for such conduct; and

(c)       should provide for your reintegration and rehabilitation so as to avoid your offending in the future.

[17]     Equally  I  consider  the  following  principles  are  important  in  imposing  a sentence and setting the level of that sentence:

(a)       I recognise the level of seriousness of your offending;

(b)I impose a sentence which is consistent with other people who have committed similar types of offending;

(c)       I impose the least restrictive outcome that is reasonably available in the circumstances of your case;

2 Larking v R [2011] NZCA 401.

3 R v Didham HC Dunedin CRI-2010-012-5871, 3 August 2011.

4 R v Hobson HC New Plymouth CRI-2010-043-3699, 12 May 2011.

5 Sections 7 - 8 Sentencing Act 2002.

(d)I take into account any personal characteristics that might make a particular sentence disproportionately severe; and

(e)       I bear in mind your personal and family background when imposing sentence upon you.

Sentencing Approach

[18]     The approach that I follow in sentencing you today is that set out in the Court of Appeal’s judgments in R v Taueki6 and more recently R v Clifford.7

[19]     In  summary,  that  approach  provides  that  I  should  look  first  at  the circumstances of the offending and identify the appropriate level of sentence that the facts of the offending demand, considering both aggravating and mitigating factors. This gives what is called a starting point, and to that I can make adjustments for your personal circumstances, including your guilty plea.   That will give me the final sentence that I impose upon you.

[20]     This will cover the lead offence, the one that I feel best represents your offending,  after that  I will  need  to  consider  whether other sentences  should  be imposed on top of that for the other charges.

[21]     I  take  the  cultivation  of  cannabis  offence  as  the  lead  charge,  since  the offending principally turns on your cultivation of cannabis, the possession for supply being secondary to that.  There is a small difference in maximum penalty, but that is unlikely to affect the result and this was the approach suggested by both counsel.

Tariff Case: R v Terewi

[22]     In setting the starting point for cultivation, I apply the Court of Appeal’s decision in R v Terewi8 which provides for an assessment of the scale and commerciality of the operation and sentencing according to that.   It sets out three categories or bands for this type of offending:9

(a)      Category one: characterised by small scale cultivation for personal use, with in some cases non-commercial supply to acquaintances.  A fine or non-custodial  sentence is  appropriate for  all  but  persistent offenders.

(b)Category two: small-scale cultivation for commercial ends.  A starting point of between two and four years is appropriate, though where sales are infrequent and limited then a lower starting point may be appropriate.

(c)      Category   three:   large   scale   commercial   cultivation,   with   a considerable   degree   of   organisation   and   sophistication   to   the operation.

Relevant or comparable cases

[23]     Guideline   judgments   are   important   in   setting   the   starting   point   and maintaining consistency.  The following comparable cases are also relevant, in that they indicate appropriate levels of sentence in similar cases of this type.

[24]     Counsel did not dispute that your offending falls within category two of the Terewi classification meaning that a starting point of between two and four years is usually appropriate.   Counsel cited a number of cases to me and I have reviewed others as well.  I summarise those that are most relevant:

(a)      R v Knowsley:10   the offender had 163 plants growing in growing tents in  a  garage  with  lights  and  ventilation  equipment.    There  was evidence of previous harvests, a system of growing cycles, as well as scales and bags. A small amount of cannabis material was found. The operation was both personal and commercial, though not at a high end.  A starting point of three years and three months’ imprisonment was appropriate.

(b)R v Didham:11     the offender had some 200 potted seedlings in his home.  Lights, reflectors and heatpads had been installed.  There was evidence of multiple cycles of growing over one to two years, 637 grams of dried cannabis head and signs of commercial sales.   The value of the cannabis found was disputed but may have been no more than $10,000. A starting point of two years six months’ imprisonment was adopted.

(c)      R v Latham:12     the offender has over 200 plants but of those only around  half  seriously  producing,  the  operation  involved  indoor lighting and ventilation.  There was evidence of supply, principally to friends and the offending had few indicators of commerciality.  The Court of Appeal suggested a two year starting point.

(d)R v Pearce:13   the offender had a sophisticated hydroponic, artificially lit growing operation in a converted shed with some 30 plants, all seemingly mature or near to it.   The electricity meter had been bypassed as well.   The operation had been going on in cycles for

18 months to two years.   There were sales of cannabis material to associates (yielding several thousand dollars) but not in a dedicated commercial fashion, much of the cannabis was for personal medicinal

use.  There were other charges of theft and firearms possession but the

10 R v Knowsley HC Auckland CRI-2010-057-1249, 14 September 2010.

11 R v Didham HC Dunedin CRI-2010-012-5871, 3 August 2011.

12 R v Latham [2007] NZCA 552.

cannabis operation by itself would have warranted a starting point of

two years and nine months’ imprisonment.

(e)      R v Parrott:14   The offender had 45 plants in three rooms in converted dairy with sophisticated controlled environment and hydroponic growing setup with electricity meter tampered with.   Uncertain duration of operation but yield in region of $35,000-50,000 per annum and clear element of commerciality. A starting point of three years for all charges was adopted.

[25]     There are numerous other examples of cannabis growing operations but these cases provide some indication as to relative sentencing levels for similar operations to yours .

Analysis

Setting a starting point

[26]     The  operation  that  you  conducted  involved  a  considerable  number  of cannabis plants, but that factor must be considered alongside others.   In terms of sophistication it was at a moderate level; it was clear some effort had gone into the preparation of the tents and lighting, but your counsel is correct in submitting that some of the hallmarks of greater sophistication such as hydroponics, timing systems and electricity theft are lacking.   The level of commerciality seems to have been towards the lower end and the Crown has not challenged your assertion that sales were principally to friends or associates and were made by you personally.   The amount of high quality material found at the time of the search was relatively small.

[27]   The Crown submitted that the presence of firearms should serve as an aggravating factor.  Given that that charge has been disposed of in the District Court, and given your explanation and willingness to disclose the whereabouts of the firearms to the Police, I do not consider that they can  be properly regarded as

aggravating  the  cultivation  offending.    I  recognise,  however,  that  there  are,  as

14 R v Parrott HC Rotorua CRI-2010-070-4119, 2 February 2011.

Mr Galler submitted, inherent dangers in the presence of firearms, but I accept that in your case, there was no particular link between the firearms and the offending.  I note  that  the  decision  in  R  v  Gemmell  may be  distinguished  on  the  basis  that Mr Gemmell’s role was as the armed guard of a commercial cannabis cultivation operation and that he was convicted on more serious charges which showed an intention to use the firearms.

[28]     I consider that a starting point of two years and nine months’ imprisonment is

appropriate.

Related Offences

[29]     There are two additional offences to deal with today, the charge of possession for supply and the possession of utensils.   In light of the similar and proximate nature of those offences15  and the principle of totality16  I propose to sentence them concurrently with the cultivation charge.

[30]     The Court of Appeal has made it clear that R v Terewi can also apply to possession for supply and sale of cannabis.17    Category one would then consist of small  scale possession for supply to  acquaintances  with  no  commercial  motive, while two and three would encompass commercial supply of increasing scale and sophistication.  A concurrent term of one year is appropriate in these circumstances in your case.

[31]     On the utensils  charge  you  will  be  convicted  and  discharged.    I do  not consider it necessary to increase the starting point in light of these other charges. The supply to others is recognised in the commercial element of the cultivation (albeit at a low level) for which you have received a higher sentence than you would have received for cultivation for your own purposes.   I am satisfied that in this

respect the starting point reflects the overall criminality of the offending.18

15 Section 84(2) Sentencing Act 2002.

16 Section 85 Sentencing Act 2002.
17 R v Keefe CA275/02, 28 November 2002; and R v Gray [2008] NZCA 224.

18 R v Xie [2007] 2 NZLR 240 (CA) at [18]-[19].

Personal circumstances

[32]     Taking  that  starting  point  I need  to  adjust  it  to  recognise  your  personal circumstances, Mr Weir, and I consider the following matters that your counsel has raised and the reports have disclosed to be worthy of recognition:

(a)      Rehabilitation and reintegration: I accept that you have had a life that has been upset in several respects and that you are now trying to take positive steps to address your health and motivation and to reintegrate yourself into society; your practical abilities and the comments by doctors,  the probation  officer and  your  coach  about  your positive nature suggest significant potential.  You have responded well to drug treatment for more serious addictions in the past.

(b)Remorse: Your counsel has indicated that you are remorseful for your offending.  There are positive signs in the acknowledgement of your offending, your cooperation with the Police and the insight you have into your drug use.  I do not consider that these equate to the level of remorse19  that should be recognised by a separate discount but they count   favourably  towards   your   prospects   of   rehabilitation   and

reintegration.

(c)      Family Support: It is clear from the material that I have received and your  father’s  presence  today  that  he  supports  you  in  trying  to overcome the problems that you have experienced sofar and that he provides a positive influence in your life that may help with your rehabilitation.

(d)Health:  I accept  that  you  have  suffered  from  a  number  of  health problems in the last 10 years and that these have left you without work and may have contributed to your offending in that you saw cannabis as your preferred form of medication.  You would, however, have known that it was illegal and it is clear from your doctors’ advice

that they regard it as harmful to you.  I also consider that your ADHD

condition might make prison more difficult for you than for others.

[33]     These factors combined entitle you to some reduction on the starting point that I have indicated.   From the figure of two years nine months that I mentioned before I subtract three months.

Guilty Plea

[34]     Turning to your guilty plea; a guilty plea is a significant mitigating factor in sentencing.  The value that should be attributed to it for the purposes of sentencing involves a consideration of a number of factors including its timing, any pre-trial procedural matters, the benefits provided to the justice system and the strength of the prosecution’s case.20

[35]     You pleaded guilty on 14 June 2011, around two months after the search and prior to a committal hearing that would formally set the matter down for trial.  There may be reasons for the time that elapsed and in any event I regard your plea as coming early in the process, probably at the first reasonable practical opportunity.

[36]     The summary of facts also shows that you were cooperative with the Police from the outset and freely admitted to what you had done.  Given that the cannabis operation was discovered within in a house where you were the sole occupant, the prosecution may not have faced too onerous a task in proving the case.  Nonetheless because of the timing of your plea, your cooperation with the Police and the benefit to the justice system and the element of remorse, I consider in this case that close to the full 25% discount should be applied.

[37]     The discounts together reduce your sentence to one of a little under two years’ imprisonment, thus making you eligible for home detention.  I turn to consider whether that would be appropriate.

Home Detention

[38]     A sentence of home detention is provided for by ss 15A and 80A of the Sentencing Act.    Those  sections  provide  that  a  sentence  of  home  detention  is available where you would otherwise serve a short term of imprisonment,21  that

certain administrative arrangements have been made22  and, principally that I am

satisfied, as a matter of judgment, that the residence in which you would serve home detention is suitable.23   There is a discretion to impose a sentence of home detention which is guided by the purposes and principles in the Act.24     Guidance on the exercise of that discretion can be found in previous appellate judgments.25    It is clear that home detention is to be regarded as a real alternative to imprisonment and one which has a significant deterrent element.26

[39]     As to the suitability of the proposed home detention residence, I have taken into account the decision of the Court of Appeal in R v Hill.  In that case the Court of Appeal suggested that drug-dealing from one’s home may weigh against the imposition of a sentence of home detention and that home detention at the residence

where the offending occurred may not be appropriate.27    These considerations also

apply with some force to cultivation from one’s own home.   That is a factor that counts against imposing a sentence of home detention, but it is not determinative.

[40]     I am satisfied that your prospects for rehabilitation, your compliance with community based sentences and bail thus far, and your low level of supply mean that a sentence of home detention in your current residence would be appropriate. Needless to say, Mr Weir, if at any point during your sentence of home detention or after it, you are tempted to grow cannabis again, the result will almost certainly be a

sentence of imprisonment.

21 Section 15A(1)(b).

22 Section 80A(2)(a)(ii), (iii) and (b).
23 Section 80A(2)(i).

24 Manikpersadh v R [2011] NZCA 452 at [14].

25 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [32]-[41]; R v Salanoa [2008] NZCA 185 at [23]- [26]; and R v D [2008] NZCA 254 at [61]-[70].

26 R v Iosefa [2008] NZCA 453 at [41].

27 R v Hill at [41].

[41]     The  concurrent  term  for  the  supply charge  will  also  be  served  as  home detention.

Conclusion

[42]     For  the  offence  of  cultivation  of  cannabis  I  sentence  you  to  a  term  of

12 months’ home detention.   On the possession of cannabis for supply, you are sentenced to a term of six months’ home detention to be served concurrently.  For the possession of utensils you are convicted and discharged.

[43]     On that basis you are to:

(a)      Return directly to the home address of 79 Aldred Road, RD3 Waiuku after sentencing and await the arrival of the probation officer and a representative of the monitoring company;

(b)Adhere  to  all  of  the  rules  and  restrictions  of  an  electronically monitored sentence;

(c)      Reside at 79 Aldred Road, Waiuku for the duration of home detention and not shift from that address without the prior written permission of the supervising probation officer;

(d)Abstain from the possession and consumption of all alcohol and illicit drugs as directed by the supervising probation officer;

(e)      Continue  to  attend  all  medical  and  counselling  appointments  to address health problems and drug addiction as required by medical practitioners and as directed by the supervising probation officer; and

(f)      Attend any other appropriate counselling and training courses as may be directed by the supervising probation officer.

[44]     The standard post-detention conditions are also imposed under ss 80N and

80O of the Sentencing Act 2002.

[45]     There will be orders that the cannabis, growing equipment and utensils be

destroyed and an order for the destruction of the firearms.

D J White J