Thompson v Police HC Invercargill CRI-2011-425-000010

[2011] NZHC 404

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2011-425-000010

BARRY DILLON THOMPSON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 April 2011

Counsel:         S Vidal for Appellant

E J Riddell for Respondent

Judgment:      5 April 2011

(ORAL) JUDGMENT OF LANG J (on appeal against sentence)

Solicitors/Counsel:

Crown Solicitor, DX YA90011, Invercargill 9840. S Vidal, PO Box 1195, Invercargill 9840.

THOMPSON V NZ POLICE HC INV CRI-2011-425-000010 5 April 2011

[1]      Mr Thompson pleaded guilty in the District Court to charges of cultivating cannabis, being in possession of equipment for cultivation of cannabis and utensils for consuming cannabis.   He was sentenced by Judge Phillips to 21 months imprisonment.[1]   He now appeals to this Court against sentence on the ground that it is wrong in principle and manifestly excessive.

Facts

[1] R v Thompson DC Invercargill CRI-2010-025-3760, 3 March 2011.

[2]      The   charges   arose   after   the   Police   executed   a   search   warrant   on Mr Thompson’s property on 22 October 2010.   They found that a bedroom in the house had been set up to grow cannabis.   Fourteen cannabis plants were found growing under high density lights and timers.  The plants were approximately 50–75 centimetres high.   In two wardrobes the Police found 24 seedlings, again under lights. Various utensils and snaplock bags were also found in the area.

[3]      Mr Thompson frankly admitted that the growing operation was  going to involve the sale of cannabis to third parties, although he contended that the plants were primarily being grown to produce cannabis for his own use.

The sentence

[4]      The Judge took the view that this was serious offending.  He considered that the 14 plants found growing in the bedroom would have yielded between two and three ounces per plant.   The fact that seedlings were present indicated that an operation of an ongoing nature had been discovered.   The Judge concluded that Mr Thompson was growing cannabis in quantities far in excess of what he would require, even if he was a habitual smoker of cannabis.

[5]      The starting point was determined by the decision of the Court of Appeal in R v  Terewi.[2]    This  requires  a  starting  point  of  between  two  and  four  years imprisonment in cases involving a degree of commerciality.   For that reason the

[2] R v Terewi [1999] 3 NZLR 62.

Judge adopted a starting point of 22 months imprisonment. The Judge then said:

[10]  ...However your past offending is of major concern and alarm to the Court.  Again it would appear that sentences imposed, even a term of imprisonment of one year, did not deter you from repeating your acts and did not sufficiently denounce the conduct to bring it home to you that cannabis is a major problem in our society.   It impacts majorly upon our youth.   It removes the desire to succeed or to be motivated.  The people who grow it and sell it must be held out as it must be shown by our Courts that the trade in cannabis will be dealt to by sharp and solid sentencing.

[11]  On the basis of your past convictions, therefore, I uplift the 22 month sentence by six months for your past offending to a term of imprisonment of

28 months.

[6]      After applying the uplift of six months, the Judge allowed a discount of seven months, or 25 per cent, to reflect Mr Thompson’s guilty pleas.  He therefore arrived at an end sentence of one year and nine months imprisonment.

Grounds of appeal

[7]      Counsel for Mr Thompson does not take issue with the starting point that the Judge adopted, or the level of discount that he applied in relation to the guilty pleas. The  sole  point  on  appeal  relates  to  the  uplift  the  Judge  applied  to  reflect Mr Thompson’s previous convictions.

[8]      Counsel submits that an uplift of 25 per cent was not warranted in the present circumstances, and that the Judge should not have applied an uplift beyond three months to reflect Mr Thompson’s previous convictions.

Decision

[9]      Counsel for Mr Thompson submitted that her client’s last  conviction  for cannabis-related offending had resulted in an effective sentence of 12 months imprisonment.  She submitted that an uplift that was effectively 50 per cent of that sentence was too great.  This approach, with respect, misconstrues the reason why previous convictions may be an aggravating factor.

[10]     Previous convictions, where they are relevant, are an aggravating factor in terms of s 9(1)(j) of the Sentencing Act 2002.   It is important, however, for a sentencing Judge to  ensure that,  in  applying an  uplift  to  reflect  this  factor,  the

offender is not effectively being re-sentenced in respect of earlier offending.  Any suggestion of double counting must be scrupulously avoided. The uplift is applied to recognize the fact that the present offending is made that much more serious by the fact that previous sentences of imprisonment have had no effect.  It becomes more serious because it is committed in circumstances where the offender knows that what he or she is doing is against the law and, it reflects the fact that previous sanctions have not deterred the offender from offending again.

[11]     It is not possible to set a guideline, or tariff, for the level of uplift that is to be applied in any given case.   The level of uplift must,  however, bear a sense of proportion   to   the   sentence   being   imposed.      Other   than   in   extraordinary circumstances, it would therefore be wrong in principle to apply an uplift of three years imprisonment to a starting point of one years imprisonment.

[12]     In the present case, Mr Thompson chose to set up a sophisticated growing operation  very  shortly  after  completing  a  sentence  of  imprisonment  on  another charge of cultivating cannabis and being in possession of cannabis for supply.  This type of offending does not occur accidentally or in the heat of the moment.   It requires a deliberate decision by the offender to equip himself or herself with the necessary premises and apparatus to conduct a cannabis growing operation.   The operation  is  then  carried  out  over  a  period  of  time  and,  in  part  at  least,  for commercial gain.

[13]     Those factors aggravate Mr Thompson’s current offending significantly.  I do not consider an uplift of 25 per cent from the starting point that the Judge identified to be out of the ordinary.  Indeed, I imposed the same uplift yesterday to a starting point of 21 months imprisonment in very similar circumstances.[3]    In the event that Mr Thompson continues to offend in this way, he needs to be prepared for the fact that the level of uplift will inevitably increase in relation to any sentence that is

imposed in the future.

[3] R v Irvine HC Invercargill CRI-2010-025-004392, 4 April 2011

[14]   For these reasons the uplift of six months cannot on any view of the circumstances be said to be excessive, let alone manifestly excessive.  Had I been sentencing Mr Thompson, it is likely that a greater uplift would have been applied.

Result

[15]     For these reasons, the appeal against sentence is dismissed.

……………………………..

Lang J