Savage v Police
[2014] NZHC 590
•27 March 2014
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2014-463-000013 [2014] NZHC 590
BETWEEN JAMES ROBERT SAVAGE Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 27 March 2014
Appearances: A S Burns for Appellant
A Hill for Respondent
Judgment: 27 March 2014
ORAL JUDGMENT OF VENNING J
Solicitors: Crown Solicitor, Rotorua
Families Matter Law Practice, Rotorua
SAVAGE v NZ POLICE [2014] NZHC 590 [27 March 2014]
Introduction
[1] On 14 March 2014 in the District Court at Rotorua James Savage was sentenced by Judge Weir to imprisonment for two years, three months on the charge of cultivation of cannabis and to a concurrent term of imprisonment of three months on a charge of possession of cannabis.1 Mr Savage appeals against the sentence.
Background
[2] The summary of facts discloses that on the execution of a search warrant at Mr Savage’s home address the police located a reasonably substantial indoor cannabis cultivation operation within the basement of the home. Mr Savage had modified a portion of the basement to create two rooms that were set up for the purpose of growing cannabis. Along with a number of cannabis plants there was an extensive amount of cultivation paraphernalia, fertilizers, clonex, ph test kits, grow lamp bulbs, seed trays and buckets throughout the basement area and the detached double garage at the rear of the property.
[3] In the first and smaller of the two growing rooms there were two makeshift tables with a grow lamp connected to a timber device. There was an electric fan and water supply was plumbed in via a hose coming through the ceiling. There were 109 cannabis seedlings located on the first table growing in five trays. A further 130 seedlings were located on the second table growing in small planter bags contained within a shower tray. Through a small opening at the rear of the first room there was a larger more sophisticated room, which had five high pressure sodium grow lamps with shades suspended from the ceiling. A water supply was also plumbed into this room which fed an irrigation system supplying each plant. There were four electric fans on the floor and a ventilation fan had been fitted to the wall to bring fresh air into the room. There was a large ducted extraction fan with a carbon filter. There were 24 cannabis plants growing in this room planted in individual pots. They were approximately one metre tall midway through their growing cycle. The plants were healthy and starting to produce good quality head. Mr Savage had incorporated plastic meshing at the base of the plants to encourage them to hedge as they grew.
[4] On searching the kitchen a Freedom bag containing approximately 454 grams or a pound of cannabis leaf material was located in the pantry. A further two plastic shopping bags containing 224 grams of cannabis leaf was also located there.
[5] In a drawer in the basement plastic snap lock bags were found. The two bags each contained 25 grams, just under an ounce in each case, of high quality cannabis head material.
[6] In summary a total of 678 grams of bagged dry cannabis leaf was located together with 50 grams of packaged high grade cannabis head.
[7] There were 24 cannabis plants midway through the growing cycle and a total of 239 cannabis clones being cultivated. The estimated conservative value of the cannabis crop is in excess of $90,000. The defendant admitted to growing the cannabis and in explanation said it was just a hobby and he grew it for him and his bros to smoke. He said he did not sell it.
District Court decision
[8] The Judge considered the extent of the operation placed it squarely within R v Terewi2 band 2 and adopted a starting point of two years, six months, nothing that Mr Savage was charged with cultivation simpliciter. The Judge then uplifted the starting point by six months to take account of Mr Savage’s previous convictions, both in relation to cannabis and his other offending. From that adjusted start point of three years the Judge applied a full 25 per cent reduction by way of the discount for guilty plea, which led to a sentence of two years, three months’ imprisonment on the lead charge. He then imposed a concurrent sentence of three months’ imprisonment
on the possession simplicter charge.
The basis for the appeal
[9] In support of the appeal Mr Burns submits that the Judge failed to take into account a number of factors under s 8 of the Sentencing Act, particularly the need to impose the least restrictive outcome and to take account of the particular
circumstances of the offender, which may mean the sentence is disproportionately severe, and also to take into the offender’s personal and family background. He also noted that since his apprehension Mr Savage had addressed his cannabis use and provided a drug test showing he had tested negative to any THC in his system.
[10] Mr Burns emphasised the effect the term of imprisonment has had on Mr Savage’s partner and young daughter. His partner, Ms Williams, has sworn an affidavit to support the appeal. In that affidavit she has detailed the difficulty that she has working and caring for their child since Mr Savage’s imprisonment. She generally works five days a week from 6 in the morning to 3 in the afternoon.
Decision
[11] Section 250 of the Criminal Procedure Act 2011 applies to this appeal. The Court must allow the appeal if it satisfied that if for any reason there is an error in the sentence imposed. Relevantly in this case the generally accepted grounds of error would be:
(a) the sentence was manifestly excessive; (b) the sentence was inappropriate;
(c) the sentence involved an error of law or principle;
(d) relevant facts before the sentencing court were incorrectly assessed. [12] Mr Burns’ submissions were primarily directed at arriving at a sentence of
two years or less, which would have opened up the possibility of a sentence of home detention for Mr Savage. I have to say that even if the Court were to arrive at a sentence of two years’ imprisonment or less, I am not at all satisfied that home detention would be the appropriate sentence in this particular case in any event.
[13] The offending in this case took place in the home that Mr Savage was living in with his partner Ms Williams. Accepting Ms Williams’ affidavit that she had no knowledge of it Mr Savage must have gone to great lengths to conceal his growing
operation from her. It would not be appropriate that he be admitted to home detention, given the offending occurred in his home in those circumstances. Further, Mr Savage is 45 years old. He has a previous conviction for cultivation of cannabis. It is not as though he is a young man who has made a stupid mistake.
[14] For those reasons I am not at all satisfied that home detention would be an appropriate sentence in any event. The least restrictive sentence is imprisonment.
[15] Mr Burns argued that, while the offending fell within category 2 of Terewi, the Judge erred in taking a starting point of two years, six months. In my view such a starting point was open to the Judge. Even though this was a charge of cultivation simpliciter it was an extensive and sophisticated operation. As described the cannabis seized had a value of in excess of $90,000. Even though Mr Savage may not have sold any of the cannabis he was on his own admission supplying it to his “bros”. It was not limited to his personal use. In the circumstances and having regard to the authorities referred to by the Judge a starting point of two years, six
months was open. 3
[16] I accept there is more force in Mr Burns’ submission that the uplift of six months was not justified in this case. Mr Hill accepted it was stern. It was appropriate for there to be an uplift for the previous conviction for cultivation of cannabis and cannabis offending. However, it was not, in my judgment appropriate for the sentence to be uplifted to take account of other unrelated offending. That effectively amounts to punishing Mr Savage twice for that other unrelated offending. The previous cannabis conviction is however relevant because it displays a propensity to offend in this way. An uplift of two to three months was sufficient to reflect that.
[17] In terms of mitigating features the Judge could properly have taken into account the steps Mr Savage had taken to address his issues by abstaining from
cannabis after apprehension. That could have supported a reduction of some one to
3 R v Waling CA182/88, 26 July 1988; R v Abraham CA112/88, 13 September 1998; R v Scott
CA170/05, 9 November 2005; R v Harris [2009] NZCA 471; R v Butler CA221/04, 4 October
2004; R v Foreman [2012] NZHC 1954; White v R [2010] NZCA 565; R v Connolly [2012] NZHC 1950; R v Mead [2013] NZHC 236.
two months in the adjusted starting point. However, there are in my assessment no other mitigating factors other than the guilty plea. Despite Mr Burns’ submission and Ms Williams’ affidavit the position is that it cannot be said that imprisonment is disproportionately severe in this case. The difficulties of the family situation is unfortunately a consequence that Mr Savage is responsible for. He must take responsibility for that. Offending of this nature does impact on families.
[18] Having regard to the Supreme Court decision of Hessell v R,4 particularly the comments at [74] of that judgment and the earlier passages in the judgment where the Supreme Court rejected the Court of Appeal approach of not taking account of the strength of the prosecution case, the Court should consider the strength of the case. The prosecution case in this case was extremely strong. In the circumstances a reduction of no more than 15 to 20 per cent for the guilty plea would have been applicable.
[19] The end result is that on that adjusted assessment a sentence in the region of two years, one months to two years, three months would have been open to the Judge. Bearing in mind that the other offence of possession of cannabis simpliciter was also to be taken into account, I am not prepared to say that the end result reached by the Judge in this case of two years, three months was manifestly excessive or that there has been any other error in the sentencing approach that I have not addressed above.
[20] In the circumstances the appeal must be and is dismissed.
Venning J
4 Hessell v R [2010] NZSC 135.
5
0