Solicitor-General v Proctor HC Wellington CRI 2006-042-2971

[2007] NZHC 1604

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2006-042-2971

IN THE MATTER OF     an application pursuant to the Proceeds of

Crime Act 1991

BETWEEN  THE SOLICITOR-GENERAL OF NEW ZEALAND

Applicant

AND  KELVIN RUSSELL PROCTOR Respondent

CRI 2006-042-2971

AND BETWEEN             THE QUEEN

AND  KELVIN RUSSELL PROCTOR

Hearing:         9 February 2007

Appearances: E A Gambrill for Applicant

B Daniell-Smith for Respondent

R Holden for Westpac

Judgment:      9 February 2007

SENTENCING NOTES OF MILLER J

[1]      Mr Proctor, you appear for sentence on two charges of cultivating cannabis in August 2006, and one of unlawful possession of a pistol, a .22 rifle that had been cut down.  The maximum penalty for these offences following conviction on indictment

is seven and three years imprisonment respectively.

THE SOLICITOR-GENERAL OF NEW ZEALAND V PROCTOR HC WN CRI 2006-042-2971  9 February

2007

[2]      You appear in this Court because the Crown has also sought an order for forfeiture of your property at Upper Moutere.   When you appeared on 17 October

2006 you pleaded guilty, and Judge Zohrab purported to enter a conviction and remanded  you  for  sentence  in  the  District  Court.    You took the  point  that  the summary maximum penalty was less than the minimum of five years prescribed in the legislation governing forfeiture.    Judge McKegg subsequently declined jurisdiction and transferred you to this Court under s.28G of the District Courts Act. For  reasons given  in  R  v  Zanzoul  (CA  297/06,  6  December  2006),  I  approach sentencing on the basis that Judge McKegg was entitled to transfer you to this Court for sentence, and that the conviction entered in this Court will be a conviction on indictment for purposes of s.9 of the Misuse of Drugs Act 1975.

Facts

[3]      The facts are that the police searched your property on 10 August 2006, and there located a locked exterior room in which you admitted to growing cannabis.  In the room was a purpose built area with six juvenile cloned cannabis plants approximately 30 cm in height.  These were being grown underneath a grow light. Also present were fans used to regulate temperature.

[4]      Six mature cannabis plants were located in a compost heap on the property; they had been clipped and all of the bud or head material removed.  The plants had been grown in a shed attached to a water tank, and in this facility were found lighting transformers, lights, timers, an extraction fan unit, and fertilisers.

[5]      In the house were found drying lines rigged in the ceiling.  There was also a security camera positioned so as to film the driveway, although your instructions are that it was not operational.  The cut-down rifle was found beside your bed; it was loaded.

Personal circumstances

[6]      You are aged 49 with four children none of whom presently live with you. You are on a sickness benefit following knee surgery in 2004.  Previously you had been employed at a sawmill where you held the position of site union delegate and work and production management.  The probation officer reports that you accounted for use of cannabis by referring to loss of self-esteem following your inability to work.  You have support from members of the local community.  I record that you claim the weapon had nothing to do with the cultivation of cannabis.

[7]      You have no previous drug convictions, but you have a considerable number of driving and breath alcohol convictions the last of which was entered on 15 April

2003.  In your distant past there are also several convictions for dishonesty offences; burglary, being found in an enclosed yard, and attempted theft.  The most recent of these was in 1977.

[8]      Because you resisted counselling to address your cannabis use, the probation officer considers that your risk of reoffending is high.  Counsels instructions are that you are in fact receptive to counselling but I express scepticism about that in the absence of concrete evidence of commitment to rehabilitation.

Sentencing principles

[9]      I will treat the cultivation of cannabis as the lead offence and impose a short cumulative sentence for unlawful possession of the weapon.   The Crown submits that this case falls into the second category in R v Terewi  [1999] 3 NZLR 62, contending that this was a commercial operation and so attracts a starting point of two to four years imprisonment. Having regard to the firearm, the Crown invites me to adopt a starting point of three to four years imprisonment.

[10]     You maintain that the cannabis was for your personal use, and I observe that you are not charged with cultivation for the purpose of supply.   Certainly the operation was highly organised but it is not inconsistent with long-standing personal use and the quantity of cannabis found does not compel the conclusion that your

purpose was commercial.  The Crown did not call for a sentencing hearing.  I will sentence you accordingly.   Offending in category one is normally dealt with by a fine or other non-custodial sentence, but that need not be so.  Because it was highly organised and clearly sustained over time, a prison term is warranted.  I will adopt a starting point of 12 months imprisonment on the lead cannabis offences and impose a short cumulative term for the firearms offence.

Aggravating and mitigating factors

[11]     I will not treat your previous convictions as an aggravating factor; they are of a different  type.  In mitigation, you will receive the usual substantial credit for your guilty pleas.

Decision

[12]     The convictions entered on 17 October 2006 are set aside, and convictions entered on all three charges in this Court.   You will be sentenced to nine months imprisonment on the two charges of cultivating cannabis.  On the charge of unlawful possession of the firearm you will be sentenced to a cumulative term of four months, making your effective sentence 13 months imprisonment.

Home detention

[13]     I am required to consider granting leave to seek home detention.  I must take into account the nature and seriousness of the offence and your circumstances and background.   I have concluded that leave should be denied.   The offending was carried out  at your home, and on the  material before me,  you  are  a committed cannabis user who appears unrepentant.  But there is a risk that you will continue to offend in the same way,

Forfeiture

[14]     The Proceeds of Crime Act gives the Court a discretion to order forfeiture of property that is tainted in that it was used to commit a serious offence.  Cultivation of cannabis is also a “serious offence” as defined; that is, as already outlined, it attracts a maximum sentence of more than five years.  The legislation provides that I may have regard to  the  use  that  is ordinarily  made  of the  property,  any undue hardship, the nature and extent of your interest in the property, and any other matter relating to the nature and circumstances of the offence or the offender.

[15]     The Crown refers to R v Brough [1995] 1 NZLR 419, R v Pedersen [1995] 2

NZLR 386, and R v Dunsmeir [1996] 2 NZLR 1, in which the Court of Appeal recognised that forfeiture of property used to facilitate the commission of an offence is available for purposes of deterrence, even when the property was not itself the proceeds of crime.

[16]     Counsel contends on your behalf that forfeiture nonetheless would be wholly disproportionate to the seriousness of the offence.  I agree, for a number of reasons. First, this is not a case where the property was acquired from the proceeds of crime. Second, it is your home and only real asset, and at your age and having regard to your health, it is unlikely that you would be able to purchase another.  Third, your equity in the property is substantial; it is at least $140,000, and maybe $200,000. Fourth, the offence is not a serious one of its kind; I have not sentenced you on the basis that your purpose in growing cannabis was commercial.   Fifth, I must have regard to the sentence that has been imposed; it takes into account the aggravating features of your offending.  The case has some similarities, in my view, to Cooksley- Mellish v Solicitor-General (CA 209/05) 27 October 2005, although the offending there was more serious.

[17]     Stand down.

Solicitors:

Crown Law, Nelson for Applicant

Daniell-Smith & Co, Nelson for Respondent

Simpson Grierson, Auckland for Westpac New Zealand Limited

F Miller J