Riches v Police

[2017] NZHC 2035

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-000094 [2017] NZHC 2035

BETWEEN

WILLIAM RONALD RICHES

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	17 August 2017
Appearances:	G P Tyrrell for the Appellant C J Bernhardt for the Respondent
Judgment:	24 August 2017

JUDGMENT OF NATION J

[1]      Is a fine the normally appropriate penalty for cultivating a small number of cannabis plants for personal use using hydroponic facilities?  That is the issue raised by this appeal.

[2]      The summary of facts described how the Police visited the appellant, Mr Riches, at his home in Christchurch.   He told the Police that someone they were asking about had come over to his place to smoke cannabis.  A warrantless search power was invoked. The summary then recorded:

Located in the garage was a grow room fitted out with lamps, heat sources and ventilation.    The garage contained 6 mature Cannabis plants approximately 1 metre in height with 2 smaller plants approximately 20 centimetres in height.

[3]      Mr Riches pleaded guilty quite promptly on a third Court appearance.   He was then remanded for a pre-sentence report and was sentenced on 12 July 2017.

RICHES v POLICE [2017] NZHC 2035 [24 August 2017]

District Court sentencing

[4]      The District Court Judge referred to the number and description of the eight plants.   He noted that  Mr Riches had told the Police the cannabis was for his personal use and said “[t]his cultivation appears to have been accepted by the prosecution as being non-commercial”.

[5]      The Judge noted Mr Riches was appearing before the Court at aged 29, for all intents and purposes as a first offender.  He referred to the submission for Mr Riches that Mr Riches knew he had let his family down and that his parents were most displeased.  The PAC report recorded that Mr Riches had expressed remorse for his actions and was disappointed that he had let his family down.

[6]      The Judge also noted the submission for Mr Riches that the offending was a category 1 offence in terms of the guidelines in R v Terewi.1     He referred to the probation officer’s opinion that there was a minimal or low risk of reoffending but also the probation officer’s opinion that Mr Riches had issues with cannabis use.

[7]      The Judge noted that community work was not recommended because Mr Riches’ employment could make completing that work difficult.  He did not consider imprisonment was required and said he was therefore “prepared to accept the recommendation of the probation officer as appropriate”.  He convicted Mr Riches and sentenced him to four months’ community detention, to be served by way of a curfew at his home from 7.00 pm to 6.00 am Monday to Sunday inclusive.  He also sentenced Mr Riches to 12 months’ supervision with a special condition that he attend and complete any recommended intervention for drug use to the satisfaction of the probation officer.  On his appeal, Mr Riches did not challenge that latter aspect of his sentence.

Principles on appeal

[8]      Appeals against sentence are brought under s 244 of the Criminal Procedure

Act 2011 and must be determined in accordance with s 250 of that Act.  Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has

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

been an error in the imposition of the sentence and that, in the event, a different sentence should be imposed.2

[9]      If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge.  It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion.  As Toogood J said (citing Ripia v R3) in Larkin v Ministry of Development:4

[26]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

[10]     The focus on most appeals is thus on the end sentence.  In Tutakangahau v

R,5 the Court of Appeal held that:6

…the focus is on the sentence imposed rather than the process by which the sentence  is  reached.  That  encapsulation  of  the  position  will  no  doubt represent the position in the vast majority of cases.

First ground of appeal

[11]     In  contending the sentence was manifestly excessive, the first  ground of appeal was that the sentencing Judge incorrectly made a factual finding of an aggravated feature in saying the cultivation was an “ongoing operation”.   The appellant submits that finding was not open to the Judge on the very brief summary of facts.

[12]     The Judge said:7

[6]       This cultivation appears to have been accepted by the prosecution as being non-commercial.   It was an indoor grow, as I said, using this hydroponic setup in order to enhance the prospects of a successful grow.  It is also utilised to produce a maximum quantity of cannabis in the shortest

2      Criminal Procedure Act 2011, ss 250(2) and 250(3).

3      Ripia v R [2011] NZCA 101 at [15].

4      Larkin v Ministry of Development [2015] NZHC 680.

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

6 At [36].

7      Police v Riches [2017] NZDC 15686.

possible time.   It also enables the exercise to be repeated several times a year.

[7]       In this case you had six mature plants and two small ones which indicates to me that this was an ongoing operation, not just a one-off.  You had the mature plants and you had the younger plants coming on.

[8]       I accept Mr Tyrrell’s submission that the aggravating features in this case are not at a level where I should consider a term of imprisonment, especially given  the fact that  you  are a  first  offender in  reality.    I am, therefore, prepared to accept the recommendation of the probation officer as appropriate.

[13]     Mr Tyrrell, for Mr Riches, said the Judge had drawn an adverse inference without providing any opportunity for Mr Riches to respond.  He referred to s 24(2) Sentencing Act 2002 which sets out the prescribed procedure if there is a disputed fact which could be of significance to the sentence.   Mr Tyrrell made these submissions on the basis Mr Riches’ instructions were that all plants were grown at the same time but two grew more slowly than the others.

[14]     Given the way in which the Judge referred to “the aggravating features in this case”,  immediately  after  describing  the  nature  of  the  grow,  I  accept  that  he considered the nature of the cultivation as making it more serious, although not to a marked degree.  The Judge was still prepared to regard the grow as non-commercial and on the basis it was for Mr Riches’ personal use.

[15]     The Judge also regarded the use of the hydroponic setup as making the grow more serious.   I do not consider there was any error in that regard.   It means the cultivation  was  at  a  more  sophisticated  level  than,  for  instance,  would  be  the situation with someone who had gone to no great trouble over attempting to cultivate a small number of plants and who was willing to leave the ultimate productive capacity of those plants to the vagaries of nature.

[16]     A Judge is justified in referring to the hydroponic setup as an aggravating feature because, with such a setup installed, there is the potential for it to be used in cultivation several times a year, as was mentioned by the Judge here.  The offender must,  however,  be  sentenced  only  for  the  offending  for  which  he  has  been prosecuted, as disclosed by evidence or, as in this case, the summary of facts.

[17]     Here, that cultivation involved six mature plants of approximately one metre in height and two smaller plants about 20 centimetres in height.  I do not consider the Judge referred to this being “an ongoing operation” in a way which suggests Mr Riches was being sentenced for cultivating further plants before and after this grow. The Judge described it as an ongoing operation in the sense of having mature plants and “younger plants coming on”.   It was thus ongoing in the sense of requiring cultivation of plants at two different stages.

[18]     There was nothing in either the summary of facts or the submissions which the Judge noted at the time to indicate that Mr Riches had planted all the plants at the same time.   Neither was there explanation as to how and when they were found, some had grown to a metre and were described as mature while two were smaller at only 20 centimetres in height.  Even if the plants had been planted at the same time, this would have been a cultivation where some plants were going to be capable of harvest earlier than others.   In that sense, it was an ongoing operation.   I do not consider that, simply through the way the Judge described the operation, it can be said Mr Riches was sentenced for more extensive cultivation of cannabis than had been accepted with his guilty plea.

[19]     The second ground of appeal was that the sentence was manifestly excessive because, with this sort of cultivation, a fine or, at the very least, a lesser term of community detention should have been imposed.

[20]     The   Judge   said,   in   the   circumstances,   he   was   able   to   accept   the recommendation of the probation officer as appropriate.  The probation officer may not however have considered the alternative of a fine.   The report refers to the Court’s request that the suitability of an electronically monitored sentence be canvassed.  The record of hearings shows that, at 30 March 2017 when Mr Riches pleaded guilty, the Judge had requested that the report address community detention and/or home detention.    The probation officer may well have made the recommendation on the assumption that one of the possible community-based sentences would be imposed.

[21]   On that assumption, the recommendation of community detention was appropriate, given Mr Riches’ concern that a sentence of community work could well cause difficulties with his work as a plumber or vice versa.  The sentence of community detention with evening and night time curfews might also have been appropriate given Mr Riches’ resolution, as conveyed to the probation officer, that he needed to make changes to his lifestyle and bring to an end associations with friends that had led to some problems for him in the past.  He had also told the probation officer that he had come to prefer his own company in all the circumstances he faced.

[22]     The issue remains whether the sentence of community detention, instead of a fine was manifestly excessive in the circumstances that applied here.

[23]     Mr Riches was 29.  He was employed as a plumber and was working fulltime for a plumbing company and had the support of his employer.  Despite the fact the potential sentence on a charge of cultivating cannabis is seven years’ imprisonment, Mr Riches seems to have had a rather blasé attitude to both the cultivation and use of cannabis.   He apparently volunteered to the Police that someone had visited his home to use it.  He acknowledged, obviously honestly, to the probation officer that he knew exactly what he was doing at the time of his offending but justified his actions on the basis he was growing it for his own use.

[24]     The  Police  do  not  appear  to  have  treated  the  cultivation  as  particularly serious.  The summary of facts provides little detail as to the state of the plants, their potential value or the likely harvest from them.  There is nothing in the summary to indicate the Police made any detailed enquiry as to when and how the hydroponic setup was installed or as to how and when the cannabis was planted.   The only information as to the cultivation was that referred to in paragraph 2 above.

[25]     Sentencing for the cultivation of cannabis has to be considered against the guidelines provided by the Court of Appeal in R v Terewi.  In terms of Terewi, this

was a category 1 offence.  Category 1 is described in Terewi as follows:8

8      R v Terewi, above n 1, at [4].

Category 1:  consists of the growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended.  Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence.  Where there have been supplies to others on a non-commercial basis, the monetary penalty will be greater and in more serious cases or for persistent offending a term of periodic detention or even a short prison term may be merited.

[26]     Terewi was decided in 1999 before the enactment of the Sentencing Act 2002. With the Sentencing Act 2002, there is a presumption in favour of the use of fines wherever a fine would constitute sufficient punishment for the offence and it is within the means of the offender to pay it.9

[27]     Section 13 Sentencing Act 2002 was considered significant by Faire J in Leaupepe v Police when he allowed an appeal against sentence and substituted a fine for a sentence of 150 hours’ community work.10   Faire J had regard to s 13(a) and the need for the Court to consider the purpose or purposes for which sentence is being imposed, in deciding whether the presumption in favour of a fine is rebuttable.  Faire J noted that, in relation to s 7, denunciation and deterrence are particularly relevant for drug offending, particularly where there is cultivation for supply.  However, even in that more serious situation, a fine had been deemed to be an adequate deterrent in some circumstances.11

[28]     I  agree  with  Faire  J  that  a  fine  is  ordinarily  capable  of  achieving  the necessary degree of deterrence and denunciation in a situation where a defendant is charged with cultivating plants for his own personal use.  The imposition of a fine at the appropriate level means his cannabis use has been at a real cost.  In addition, the fact of conviction represents a significant penalty itself.  Conviction for a cannabis- related offence may have continuing consequences with regard to international travel and all the situations such as arranging insurance or seeking employment where disclosure of criminal convictions may be required.

[29]     The Leaupepe appeal involved cultivation of five cannabis plants with a hydroponics  setup.    The  Crown  accepted  that  the  authorities  relied  on  by  the

9      Sentencing Act 2002, ss 13(1) and 15.

10     Leaupepe v Police [2016] NZHC 76.

11     Parker v Police HC Wellington CRI-2007-485-150, 27 February 2008.

appellant in that case, such as Parker, provided support for a way of dealing with the matter through a sentence other than community work.  In allowing the appeal, Faire J  said  the  sophistication  of  the  operation,  involving  a  range  of  hydroponic equipment, called for a final sentence that reflected the planning and organisation that would have occurred: “[a]nything other than a significant fine would not achieve the important goals of denunciation and deterrence.”12   Faire J adopted a discount of

20 per cent for a guilty plea, weighing in the balance the strength of the prosecution case, namely the hydroponic setup and the fact plants were found by Police in Mr Leaupepe’s bedroom.  Taking those matters into account, Faire J substituted a fine of

$1,550 for the sentence of 150 hours’ community work.

[30]     In Parker v Police, the Police had found 10 mature, well-tended cannabis plants approximately one metre high and a tray containing 15 cannabis seedlings growing beneath lights.  The Police also found approximately 625 g of high-quality dried  cannabis  plant  material  underneath  newspaper  on  the  bed.    The  Police estimated that the cannabis had a street value of approximately $5,500.  The Crown accepted there was no commercial motive associated with the cultivation.

[31]     On  appeal,  Mallon  J  was  concerned  that,  perhaps  because  the  sentence imposed was consistent with a pre-plea sentence indication, the District Court Judge had not discussed whether a fine was an appropriate penalty in terms of ss 13 and 15

Sentencing Act 2002.   Her Honour considered sentencing in a number of cases involving relatively similar offending, some in which sentences ranging from 120 to

175 hours’ community work had been imposed, and some where fines had been imposed.  She considered the situation before her was one where a fine ought to have been considered.

[32]     Her Honour noted the sophisticated nature of the cultivation was consistent with Mr Parker’s acknowledged heavy daily use.  Her Honour held that, in all the circumstances,  a  fine  met  the  purposes  and  principles  of  sentencing  and  was therefore not inadequate.  Accordingly, under s 13, a fine had to be imposed unless

Mr Parker did not or would not have the means to pay it.   She considered the

12     Leaupepe v Police, above n 10, at [37].

sentencing Judge had erred in failing to consider whether a fine was appropriate. She quashed the sentence of 150 hours’ community work and imposed a $2,000 fine.

[33]     In Sadd v Police, there was an appeal against a sentence of six months’ periodic detention.13    Mr Sadd had pleaded guilty to cultivation of 17 large, mature cannabis plants.  He was sentenced on the basis the cannabis was being grown for his personal use.  This appeal was dealt with before Terewi and before the Criminal Procedure Act 2011.  Neazor J referred to the then guideline judgment of the Court of Appeal in R v Dutch.14   He referred to the sentence of periodic detention as being “otherwise unexceptional” but allowed the appeal because of the consequences the sentence was having on the appellant’s employment.   The Court considered the imposition of a fine could be sufficient as a deterrent and the public interest in seeing the appellant’s employment continue justified setting aside the sentence of periodic detention and imposing instead a fine of $2,000.

[34]     In Hartley v Police, Mr Hartley was sentenced on one charge of possession of cannabis, which related to 736 grams of cannabis head found drying on a newspaper in a room inside his house.15   He was also sentenced for the associated cultivation of cannabis.   Seven cannabis plants, ranging in height from 0.75 to 1.7 metres were found.  When confronted by the Police with what they had found, Mr Hartley was unrepentant about both his use of cannabis and cultivation, and indicated he did not consider he had done anything wrong.   He had previous convictions for cannabis offending.  He was sentenced to nine months’ imprisonment in the District Court.

[35]     On appeal, Dobson J considered the issue was whether the Judge had erred in imposing a sentence of imprisonment rather than a sentence of home detention or community  detention.     His  Honour  held  that  the  decision  not  to  impose  a community-based sentence or a sentence of home detention was plainly wrong.  In reaching that conclusion, the Judge held that insufficient weight was placed on Mr Hartley’s  personal  circumstances  “and  the  distinction  between  cultivation  for

personal use and cultivation for supply of others”.16   He also noted that “community

13     Sadd v Police HC Blenheim AP 7/98, 7 July 1998.

14     R v Dutch [1981] 1 NZLR 304 (CA).

15     Hartley v Police [2014] NZHC 2304.

16     Hartley v Police, above n 15, at [23].

detention combined with intensive supervision has been imposed on comparable occasions where the motivation for change is strong and the offender has secure employment and family support”.  Dobson J also said:17

I also consider that the need for denunciation and deterrence is lower in cases of cultivation than in cases of supply.  The seriousness of cultivation for personal use should not be minimised, but the harm caused by such offending  is  more  to  the  offender  and  his  or  her  family,  than  to  the community.

[36]    Dobson J concluded that a community-based sentence should have been imposed.  Home detention was not appropriate because it would require Mr Hartley to forego employment.  His Honour took into account the two months’ imprisonment already served, quashed the sentence of imprisonment and imposed a sentence of four months’ community detention, together with 18 months’ intensive supervision.

[37]     There was no issue in Hartley as to whether a fine should have been imposed as distinct from a sentence of community detention.   The appellant’s previous convictions distinguish it from Mr Riches’ situation.

Conclusion

[38]     I am satisfied that there was an error in the sentencing through the District Court Judge failing to adequately consider whether the offending could be dealt with by way of a fine, as is required by s 13 Sentencing Act 2002.  Section 15 states that, when  a  court  can  consider  imposing  a  community-based  sentence,  such  as community detention, it may do so only if it does not regard a fine as the appropriate sentence or because of other specified circumstances, which do not apply in this case.  In all the circumstances of this case, I consider the Court had to regard a fine, together with supervision, as the appropriate sentence.

[39]     The appeal is accordingly allowed.  The sentence of four months’ community detention is quashed.   The appellant is fined $1,700 and sentenced to 12 months’ supervision with a special condition that he attend and complete any recommended

intervention for drug use to the satisfaction of the probation officer.

17 At [26].

[40]     Given the sentence of supervision, Mr Riches is to report to Probation no later than 5.00 pm on Monday 28 August 2017.

Solicitors:

Weston Ward & Lascelles, Christchurch

Raymond Donnelly & Co., Christchurch.