The Queen v Jody Martin Hooker
[2001] NZCA 232
•30 August 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 154/01 |
THE QUEEN
V
JODY MARTIN HOOKER
| Hearing: | 30 August 2001 |
| Coram: | Richardson P Heron J Chambers J |
| Appearances: | P E Dacre for Appellant J C Pike for the Crown |
| Judgment: | 30 August 2001 |
| JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J |
The offending
On 4 April 2000 the police executed a search warrant at Jody Hooker’s home in Swanson. The police discovered inside the home a well-established hydroponic cannabis-growing system. There were 238 cannabis plants in various stages of growth. Some were seedlings growing under lamps. Some of the plants were 1.5 metres high. The police also found in the house a plastic container, wrapped up in clothing. On examination, that container was found to contain some 19 grams of methamphetamine in one-gram lots. Methamphetamine is classified as a class B controlled drug under the Misuse of Drugs Act 1975. In addition, the police found $300 in cash in $10 and $20 bills. The police then looked in the garage. They found there a Nissan Patrol vehicle. That vehicle was discovered to be one that had been stolen on 14 October the previous year. It had had its identity disguised by having the number plates changed and other identification features obscured.
The police charged Mr Hooker with three offences:
(a) Possession for supply of a class B drug, contrary to s 6 of the Misuse of Drugs Act;
(b) Cultivation of cannabis, contrary to s 9 of the Misuse of Drugs Act;
(c) Theft of a motor vehicle, contrary to s 227 of the Crimes Act 1961.
Mr Hooker initially pleaded not guilty to all charges. On the day of his trial, the Crown presented an amended indictment. The first charge was reduced to one of possession of a class B drug. Mr Hooker, on his arraignment, then pleaded guilty to the three counts he then faced. Mr Hooker was then remanded for sentence.
Sentencing took place in the District Court on 27 April this year. Mr Hooker gave evidence. The sentencing judge sentenced Mr Hooker to two years three months’ imprisonment in respect of the cannabis offending, three months’ imprisonment in respect of the class B drug, and six months’ imprisonment in respect of the theft, all sentences to be concurrent. Mr Hooker has appealed against the sentence imposed on the ground that it was manifestly excessive.
Issues on the appeal
Mr Dacre, for Mr Hooker, submitted there were two essential errors in the judge’s reasoning. First, Mr Dacre submitted that the judge adopted too high a starting point. Secondly, Mr Dacre submitted that insufficient weight was given to the mitigating circumstances.
Was the sentence manifestly excessive?
There is no dispute that the judge correctly saw the cannabis offending as the most serious. Mr Dacre accepted that the governing principles applicable to cannabis cultivation sentencing are set forth in R v Terewi [1999] 3 NZLR 62 (CA) and R v Andrews [2000] 2 NZLR 205 (CA). Mr Dacre also accepted that the judge was justified in placing Mr Hooker’s offending into category 2 of Terewi. The starting point for sentencing in category 2 is generally between two and four years. The judge chose as his starting point three years. That is, of course, right in the middle of the range and would seem unexceptional.
It is even more unexceptional when one takes into account that the judge determined that this was an appropriate case for concurrent sentences. Mr Dacre accepted that a concurrent sentence approach could not be criticised, although he suggested that it might have been more logical to have adopted concurrent sentences for the drug offending, to which could then have been added an additional sentence for the theft. We agree that that would have been an alternative approach. But, as we have often said in this court, sentencing for multiple offences can give rise to a number of different approaches, each of which may be legitimate and logical. If one is adopting a concurrent sentence approach, then clearly the lead offence must recognise the totality of the offending. Otherwise some offending effectively goes unpunished. Sometimes judges reflect the additional offending by raising the starting point on the lead offence. At other times judges will leave the starting point intact for the lead offence but will view the additional offending as an aggravating circumstance. It does not particularly matter which approach is used, although it is perhaps unfortunate that the term “starting point” is used in judgments in two different ways. Sometimes the term is used to reflect the opening position before a consideration of aggravating and mitigating circumstances. At other times the term is used to reflect the position before mitigating circumstances are taken into account; that is, aggravating features are built into the so-called starting point.
Whichever way one looks at it, three years’ imprisonment for the total offending in this case, before a consideration of mitigating circumstances, was not unreasonable. The starting point for the cannabis offending, considered alone, must have been somewhere between two and a quarter years and three years. That is in the lower half of the Terewi category 2 range. That cannot be criticised.
Mr Dacre’s second point related to the discount given for mitigating features. The judge allowed nine months for mitigating factors. That is a 25% discount. The principal mitigating feature was the guilty pleas, although, as the judge noted, those pleas did not come until arraignment at the start of the trial. We note, however, that Mr Hooker had previously been prepared to enter guilty pleas to the cannabis and theft charges.
Mr Dacre accepted “that in drug cases personal circumstances can be given little weight”. He submitted, nonetheless, that more weight should have been given to Mr Hooker’s personal circumstances, including his work record, his general standing in the community, and the fact that he was wait-listed for surgery in respect of a leg injury he suffered back in 1996. His evidence had been that he was using drugs to take the edge off the continuing pain he suffered from the leg injury.
The judge did indicate that he had taken into account all “the mitigating factors that [had] been rehearsed before [him]”. We accept that he did so. A 25% discount solely for the guilty plea would have been generous. At the same time it is obvious that he did not give a significant discount for other mitigatory features. But in that we think he was right.
There was little information before the judge on Mr Hooker’s “work record”. There was a letter from the employer by whom Mr Hooker had been employed since July 2000. It was complimentary about him. There was really no evidence as to Mr Hooker’s “general standing in the community”. Mr Hooker’s criminal history was not too bad, although he had previously been convicted in 1987 for the cultivation of cannabis and in 1992 for the possession of cannabis. Clearly drug offending preceded his 1996 accident. The judge expressed sympathy for the pain Mr Hooker had endured while awaiting surgery on his leg. At the same time the judge noted that Mr Hooker’s cri de coeur that he could not afford the operation rang somewhat hollow when the amount he had spent to buy the methamphetamine he had in his possession would have been sufficient for the necessary surgery within the private health system. Mr Hooker had obviously decided he had other priorities.
We consider that the judge cannot be criticised for the allowance he gave for mitigating factors.
Quite apart from dealing with Mr Dacre’s two arguments, we have stood back and looked at the final effective sentence of two years three months. We consider that sentence to be well within an appropriate sentence range for the overall offending in this case, taking into account Mr Hooker’s personal circumstances.
Result
We dismiss the appeal.
Solicitors
Paul Dacre, Auckland, for Appellant
Crown Law Office, Wellington, for the Crown
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