R v White HC Christchurch CRI 2010-009-7016

[2010] NZHC 1731

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-009-007016

REGINA

v

ROBERT JOHN WHITE

Hearing:         23 September 2010

Counsel:         C E Butchard for Crown

J J McCall and J Ling for Prisoner

Sentence:       23 September 2010

SENTENCE OF PANCKHURST J

Mr White:

[1]      As  you  might  have  gathered  from  the  discussion  I  have  just  had  with Mr McCall and my hesitancy in imposing sentence, I am finding your case quite a difficult one for the reasons I have already discussed with your counsel.

[2]      The facts are that on 10 May a search warrant was executed at the house at Bolton Avenue which you were renting at that time.  In two upstairs bedrooms at the address the police located what was quite a significant cannabis growing operation. There were some 90 plants, 42 of which were mature plants ready for harvest and then there were 48 plants which were a good deal younger, about four weeks on from

germination.  As might be expected, the police also found the normal paraphernalia

R V ROBERT JOHN WHITE HC CHCH CRI-2010-009-007016  23 September 2010

in terms of pots to grow the plants in, a lighting system, a fan system, a filter system and ducting pipes together with nutrients.

[3]      I have been told by Mr McCall this morning that having found this, the police then asked you if there was anything else that they should know about and, to your credit, you were cooperative with them and said that they had better search your home address as well, which was a house at Wendy Place in Heathcote.  There they found four mother cannabis plants which were being used to propagate your growing stock and also 150 seedlings; and 1.6 kilograms of dried cannabis plant which was, I assume, awaiting disposal by you.

[4]      When interviewed, you continued to be cooperative.  You said that you had rented Bolton Avenue for the purpose of growing cannabis.   Your method was to propagate the seedlings at your home address, when they were about 30 centimetres in height to move them to the growing address at Bolton Avenue and then, following harvest, to take the harvested plant material back to your home where you dried it out.  This account, of course, is entirely consistent with and really corroborated by what the police had already found.   You added that your method was to sell the cannabis in ounce lots for $250 and then you mentioned that as a result of this, although you had not worked for an extended period, at no time had you been dependent upon the state.

[5]      As is usual in these cases the summary of facts includes a calculation as to what the potential yield was from the crop.   The officer responsible for that has postulated that if there were four cycles of growth in each year, that this operation could have produced cannabis to a value of as much as $100,000.  But, I must say that, aside from the paraphernalia and the plants themselves which were found in your case, there was really little or nothing to indicate that you had operated at a level of that magnitude.

[6]      You were charged and entered pleas on request on 17 June which, it is accepted, was at the first reasonable opportunity and, accordingly, you are entitled to full credit for your guilty pleas.

[7]      Your sentencing was to occur in the District Court but on 6 August.  A Judge of that Court declined jurisdiction and committed you to this Court because he was obviously of the view that the penalties available, were he to impose sentence, were inadequate, given the culpability involved in your offending.

[8]      Mr White, you are 38 years of age.  You have no previous convictions.  The pre-sentence report confirms that you have lived alone in recent times; that you have not worked for something approaching 10 years as a result of a back injury I think sustained as a result of sport.  Perhaps the genesis of your involvement with cannabis was using it for pain relief, but the fact is you became a user and have been one for a period of years.  I have no doubt that it was this background which led to you also becoming a dealer.  I note that you were equally open and forthcoming with the pre- sentence report writer to whom you revealed you had been growing and selling cannabis for a period of about two years.

[9]      I agree with Mr McCall that the pre-sentence report, nonetheless, is a positive one.  You are assessed as being motivated to ensure that you never end up in this bind again.  You are described as remorseful and, despite the background to which I have referred, your risk of reoffending is assessed as low.  Finally, the pre-sentence report adopts as a recommendation that you might be sentenced to home detention. You have an address which is available to you with a friend who lives near to your home town of Ashburton, he living in Tinwald.

[10]     I note you have the support of your parents.   There is a letter from them which I have read and I note, as well, your regret for the fact that your offending has come to light at a time when your mother is battling a serious illness.

[11]     As you will have gathered from the discussion I have had with Mr McCall your case is squarely within what we call category 2 of a precedent decision R v Terewi.[1]    In that case the Court of Appeal effectively said that those who grow cannabis for commercial purposes will almost invariably receive prison sentences and that those who offend at the category 2 level can expect the sentence to be

calculated from a starting-point within a range of two to four years before adjustment is made for personal circumstances.

[1] R v Terewi [1999] 3 NZLR 62

[12]     In this case the Crown argues that this was significant offending which falls towards the upper end of the category 2 range identified in Terewi.   Mr McCall, responsibly and realistically, did not argue that this was not category 2 offending and he, I think, accepts that a starting-point up to about three years’ imprisonment is available.  But nonetheless he contends that your case should be met by a sentence of home detention and to that end he has drawn to my attention a number of cases

including, in particular, the case of R v Morrison,[2] who was sentenced in Auckland

in July of last year.   I agree that there are a number of parallels between your situation and that offender’s.

[2] R v Morrison HC Auckland CRI-2009-004-006524, 28 July 2009.

[13]     With some reluctance, however, Mr White I have come to the view that the normal sentencing policy must be followed in your case, essentially because of the level of offending which is revealed in the summary of facts.  I do not see any need for an uplift on account of the fact that you have pleaded to two charges, one of cultivation and one of possession of cannabis for the purpose of supply.  To my mind those two charges are so interrelated that the appropriate course is simply to arrive at a single starting-point and then an end sentence from there.

[14]     Despite the starting-point suggested by counsel, in my view the appropriate point in this case is two and a half years’ imprisonment.   From that I make an allowance of three months in recognition of the fact that you are a first offender and also in recognition of the fact that you were unusually cooperative in your dealings with  the  police  and  with  the  Probation  Service.    That  produces  a  sentence  of

27 months before one considers the allowance for your prompt pleas of guilty.  You are entitled to a one-third reduction on that account.

[15]     Accordingly,  the  end  sentence  is  18  months’  imprisonment.    You  are sentenced accordingly to that term in relation to the cultivation charge and to a concurrent term of six months in relation to the possession of cannabis charge.  The

two charges being concurrent means they are served together and the effective term is 18 months.

You may stand down.