White v R

[2010] NZCA 565

IN THE COURT OF APPEAL OF NEW ZEALAND

CA633/2010
[2010] NZCA 565

BETWEENROBERT JOHN WHITE

Appellant

ANDTHE QUEEN

Respondent

Hearing:24 November 2010

Court:Harrison, Ronald Young and Keane JJ

Counsel:J J McCall and M R Smyth for Appellant

M F Laracy and M H Cooke for Respondent

Judgment:24 November 2010 

ORAL JUDGMENT OF THE COURT

A.          The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1]        When the police executed a search warrant in May 2010 at an address rented by the appellant they found 90 cannabis plants.  Later they also searched the appellant’s residential address.  There they found further cannabis plants and 1.6 kilograms of dried cannabis.  The appellant pleaded guilty to one count of cultivating cannabis and one of possession of cannabis for supply.  Panckhurst J sentenced him to 18 months’ imprisonment.[1]  The appellant says the Judge erred when he refused to impose a sentence of home detention.

[1]      R v White HC Christchurch CRI-2010-009-007016, 23 September 2010. 

[2]        No point of principle arises and we are therefore able to give an oral judgment today.

Background facts

[3]        The property rented by the appellant in Bolton Avenue, Christchurch had two rooms set up to cultivate cannabis with pots, lights, filters, nutrients and soil.  Of the 90 plants 42 were ready to be harvested and 48 were approximately four weeks old.  The prosecution estimated that on four cycles per annum of 42 plants the two rooms could produce $100,000 worth of cannabis a year.  The premises had been rented solely to grow the cannabis.

[4]        At the appellant’s home the police found four “mother” plants and over 150 cannabis seedlings.  The dried cannabis found had a value of $19,900.

Sentencing

[5]        The Judge noted the appellant’s co‑operation with the police; his lack of previous convictions; and the positive nature of the pre‑sentence report including an assessment that he was at low risk of re‑offending as all relevant in assessing the correct sentence.

[6]        The Judge said the proper starting point was two and a half years’ imprisonment and deducted three months for the appellant’s personal circumstances and co‑operation as well as one third for his guilty plea resulting in the final sentence of 18 months’ imprisonment.

[7]        As to home detention the Judge at [11] said:

As you will have gathered from the discussion I have had with Mr McCall your case is squarely within what we call category 2 of a precedent decision R v Terewi.  In that case the Court of Appeal effectively said that those who grow cannabis for commercial purposes will almost invariably receive prison sentences and that those who offend at the category 2 level can expect the sentence to be calculated from a starting point within a range of two to four years before adjustment is made for personal circumstances.

[8]        And further, at [12] and [13] he said:

In this case the Crown argues that this was significant offending which falls towards the upper end of the category 2 range identified in Terewi.  Mr McCall, responsibly and realistically, did not argue that this was not category 2 offending and he, I think, accepts that a starting point up to about three years’ imprisonment is available.  But nonetheless he contends that your case should be met by a sentence of home detention and to that end he has drawn to my attention a number of cases including, in particular, the case of R v Morrison, who was sentenced in Auckland in July of last year.  I agree that there are a number of parallels between your situation and that offender’s.

With some reluctance, however, Mr White I have come to the view that the normal sentencing policy must be followed in our case, essentially because of the level of offending which is revealed in the summary of facts.  I do not see any need for an uplift on account of the fact that you have pleaded to two charges, one of cultivation and one of possession of cannabis for the purpose of supply.  To my mind those two charges are so interrelated that the appropriate course is simply to arrive at a single starting‑point and then an end sentence from there.

Discussion

[9]        Mr McCall identifies two appeal grounds; firstly, that the sentence of home detention should as a matter of course be available to a sentencing Judge when considering an appropriate sentence for category two offences under R v Terewi;[2] secondly, the Judge erred in not imposing a sentence of home detention.

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

[10]       As to the first ground Mr McCall refers to the 2007 amendments to the Sentencing Act 2002 which introduced a standalone sentence of home detention.[3]

[3]      Sentencing Act 2002, s 15A.

[11]       Mr McCall identified what he said was a tension between this Court’s comments in Terewi regarding imprisonment for drug dealing offences and the appropriate imposition of home detention.

[12]       The relevant observations in Terewi related to suspended prison sentences.  There this Court said:

[14]       This brings us to the question of suspended sentences. The Court has the impression that some Judges, especially in District Courts, are making it their practice to suspend sentences for cannabis cultivation and dealing falling at the lower end of the second category where they consider that the appropriate prison term comes within the range specified in s21A of the Criminal Justice Act 1985. (It should go without saying that it is impermissible to reduce the proper term in order to bring it within that range.) The power to suspend such sentences should not be used in cases involving any commercial element unless the circumstances are exceptional, such as where the amounts involved are very small or there are unusual personal circumstances of the offender which deserve to be given more than the normal weight in drug cases.

[15]       The paramount consideration is, we repeat, the deterrence of others, and by that means to reduce the prevalence of cannabis use and dependence in this country. Others who might be contemplating becoming involved in cannabis production or dealing will not be likely to be much deterred when they can see that, if detected, they are likely to escape imprisonment. Section 21A is not intended for such circumstances. It is directed at deterring reoffending by the person being sentenced – "by holding a prison sentence over the offender’s head" (R v Petersen [1994] 2 NZLR 533 at 537), which is not the paramount consideration in sentencing for drug offending. In Petersen this Court said of s21A:

It is available to be used in cases of moderately serious offending but where it is thought there is a sufficient opportunity to reform, and the need to deter others is not paramount. [Emphasis added]

[13]       Since Terewi Parliament has introduced s 15A of the Sentencing Act.  That section obliges Judges to consider home detention where a short sentence of imprisonment (as defined by the Act) is appropriate and where the facts and personal circumstances indicate such a sentence is appropriate.

[14]       We see no conflict between this Court’s observations in Terewi and s 15A.  Where the proposed sentence of imprisonment qualifies as a “short sentence” then a sentencing court is obliged to consider whether in the circumstances a sentence of home detention rather than imprisonment may be appropriate.

[15]       There is nothing to suggest in Panckhurst J’s comments that he did not consider that a sentence of home detention was potentially available.  Indeed the Judge expressly considered home detention as a sentencing option (see [7]).  His conclusion was that on the facts of this case home detention was inappropriate given the seriousness of the offending.  We therefore see no error in his approach to sentencing.

[16]       Was home detention appropriate in this case in any event?  We agree with counsel for the Crown that the Judge’s starting point at two and a half years was generous.  This was a sophisticated indoor cannabis growing operation which could have yielded significant commercial benefits to the appellant.  The dried cannabis was ready for sale.  Other cannabis was ready for harvesting.  The house had been specifically rented to grow indoor cannabis.  Deterrence was therefore the primary motivating principle for this sentencing.

[17]       The Judge’s decision has not been shown to be wrong.  For the reasons given the appeal will be dismissed.

Solicitors:

Crown Law Office, Wellington for Respondent