The Queen v Harris [2009] NZCA 471 (13 October 2009)

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The Queen v Harris [2009] NZCA 471 (13 October 2009)

Last Updated: 21 October 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA574/2009 [2009] NZCA 471THE QUEEN

v

MICHAEL DOUGLAS HARRIS

Hearing: 28 September 2009

Court: Robertson, Chisholm and Priestley JJ

Counsel: P Nee Harland for Appellant
B D Tantrum for Crown

Judgment: 13 October 2009 at 12.30 pm

JUDGMENT OF THE COURT

A The appeal is allowed.

2. The sentence of two years and two months’ imprisonment for cultivating cannabis is quashed and replaced with a sentence of one year and ten months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

Introduction

[1] After the appellant pleaded guilty in the Hastings District Court to cultivating cannabis and permitting premises to be used for smoking cannabis, that Court declined jurisdiction and the matter was remitted to the High Court for sentence. Subsequently Wylie J sentenced the appellant to two years and two months’ imprisonment for cultivating cannabis, with a concurrent sentence of nine months for permitting premises to be used. The appellant appeals against his sentence.

Facts

[2] When the police were executing a search warrant at the appellant’s address for unrelated purposes they noticed a strong smell of cannabis coming from the house. Having invoked their powers under s18 of the Misuse of Drugs Act 1975, they searched the house and found that a large scale and sophisticated cannabis growing operation was being conducted in one of the bedrooms.
[3] The bedroom had been separated into three compartments. The first compartment contained approximately 37 mature cannabis plants, the second approximately 19 younger plants plus two “mother” plants, and the third several seedlings which had been cloned from the mother plants. Approximately 788 grams of cannabis leaf and 138 grams of cannabis head were also located. The operation involved a pump system, flowing water, temperature controls, fans and growing lights.
[4] A further 30 potted seedlings were found in the garage.
[5] In explanation the appellant told the police that he smoked cannabis for medical reasons because it helped to alleviate the constant pain from which he suffered. He also admitted that a seating area in the garage had been used for “communal” smoking of cannabis which involved “local boys”.

The appellant

[6] The appellant is 59 years of age. He has two previous convictions: a conviction in 1991 for possession of cannabis seeds and a conviction in 2007 for unlawful possession of a firearm. The probation officer reported that throughout the interview the appellant minimised his offending and cited his medical conditions as the reason. She assessed the risk of re-offending as moderate.
[7] For many years the appellant has suffered severe ulceration of his legs which gives rise to constant pain. He also suffers from diabetes and an enlarged heart. A detailed document containing medical reports and photographs was before the sentencing Judge. We were informed from the bar by Mr Nee Harland that shortly after sentencing one of the appellant’s legs was amputated.

Sentencing in the High Court

[8] With the consent of the appellant, a draft brief of evidence prepared by Detective Lee, a police drug expert, was made available to Wylie J. Although the appellant accepted the facts contained in that draft brief for the purposes of s 24 of the Sentencing Act 2002, he denied that the operation was for commercial purposes and maintained his stance that it was for his own use.
[9] Wylie J noted from the detective's brief that the operation was “very professional and well equipped” and was capable of supporting year round harvesting with high yields. He recorded the detective's estimate of the potential value of the crop at $50,750, with five separate harvests being possible each year. The Judge also took into account the detective's assessment that a very extreme cannabis user might smoke 1,825 grams in a year whereas on the detective’s calculation the potential annual yield from the appellant's operation was 6,496 grams.
[10] Having considered those matters Wylie J concluded that while the circumstances suggested that some of the cultivation was for personal use, there was also an element of commercial use. He said this reflected the number of plants, the value of the potential yield and the sophistication of the operation. Wylie J also considered that there was clear pre-planning and premeditation, and he noted that the appellant had accepted that he was supplying cannabis for use in the communal smoking area in the garage. The Judge concluded that the offending came within category two of R v Terewi [1999] 3 NZLR 62 (starting point two to four years).
[11] After starting at three years’ imprisonment, Wylie J added three months to reflect the totality of the offending. He rejected the Crown’s submission that there should be a further uplift to reflect the previous conviction. A discount of one third was then allowed for the early guilty plea.
[12] With reference to the appellant’s health the Judge said:

[36] ... As I have noted above, you are in poor health. I have received this morning a document headed “Summary of Medical Conditions” from Mr Nee Harland. I have read that document. I accept that your health might make a term of imprisonment more difficult for you – that is a factor which I can, in appropriate circumstances, take into account – see s 8(h) of the Act. However I note the comments by the Probation Officer. The Hawke’s Bay Regional Prison will be able to cater for your medical needs.

He declined to allow any further discount on account of the appellant’s health and imposed the sentences mentioned earlier.

This appeal

[13] Mr Nee Harland argued that the sentence of two years and two months was manifestly excessive and out of line with comparable cases, which he traversed in detail. He emphasised that the appellant was not charged with dealing and claimed that there was no evidence of any intention to make a profit. It was Mr Nee Harland’s submission that the appellant's offending was at the lower end of R v Terewi category two and that a starting point of three years was beyond the range reasonably available to the Judge.
[14] Although he accepted that personal circumstances can only be given limited weight, Mr Nee Harland submitted that the appellant's extreme medical condition had not been given sufficient weight. He was critical of the probation officer making direct contact with prison authorities and reporting to the sentencing Judge that the appellant's medical conditions could be accommodated by the prison. While he did not dispute that contact had been made by the probation officer, he said that the identity of the person contacted was still unclear.
[15] Mr Nee Harland said that the appellant had been hospitalised for weeks both before and after sentencing. When he was hospitalised after sentencing he had the “added humiliation” of having a prison warden sitting inside or outside his room for 24 hours a day even though he is classified as a minimum security risk. Mr Nee Harland questioned the point of keeping someone in full-time custody in that situation.
[16] For the Crown Mr Tantrum responded that the starting point adopted by the Judge was both consistent with R v Terewi and available on the facts. He submitted that although there was no direct evidence of selling, it was open to the Judge to find that there was a commercial element and that in all the circumstances the three month uplift for the associated offence was appropriate.
[17] In response to the appellant’s contention that there should have been an additional discount for the appellant's medical condition, Mr Tantrum submitted that this possibility had been properly considered and rejected by the Judge. He claimed that there is no evidence of any additional hardship on the appellant that would make imprisonment disproportionate and that in any event the prison is capable of managing any impact on the appellant.

Discussion

[18] Given the size and sophistication of the cannabis growing operation and the contents of Detective Lee’s draft brief, it was open to the sentencing Judge to proceed on the basis that the offending involved a commercial element. This was a matter of inference, and it was not necessary for the Crown to provide direct evidence of selling.
[19] We are also satisfied that the Judge was entitled to adopt an initial starting point above the lower end of category two in R v Terewi (two years). While the starting point of three years was at the upper end of the range available to him, we have not been persuaded that it was beyond that range. An uplift of three months to reflect that the appellant had also allowed his premises to be used by the “local boys” was clearly within the available range, and was probably modest.
[20] The critical issue is whether the requirements of s 8(h) of the Sentencing Act were met. In terms of that provision the Court, when sentencing an offender:

(h) must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe.

[21] According to a medical report of 3 July 2009 the appellant has suffered from lower leg ulcers since the early 1980s and the nurse practitioner who provided the report has known him since 1990. She reports:

These ulcers have high exudate levels (leakage) which contribute to infection risk and loss of protein in the wound fluid. Michael’s recent blood tests showed a low serum albumin level and he reported a weight loss of 50 kg with poor appetite ... at the moment the ulcers are looking clean, however over time they have continued to increase in size.

Photographs taken by the District Health Board on 1 June 2009 provide a graphic illustration of the extensive ulceration of the appellant’s lower legs. The medical reports confirm that he also suffers from diabetes, chronic urethral strictures, atrial fibrillation, congestive heart failure and gout. And, as we now know, one of his legs was amputated approximately one week after sentencing.

[22] Under those circumstances we are satisfied that, regardless of the ability of the prison authorities to manage the situation, a sentence of imprisonment will be disproportionately severe on this appellant. We have concluded that there should have been a discount of six months to reflect the application of s 8(h).
[23] To remedy the situation we will apply the discount to the Judge’s starting point of three years and three months, which will have the effect of reducing the provisional sentence to two years and nine months. We then apply a one-third discount for the guilty plea (11 months) and arrive at an end sentence of one year and ten months for the cultivation of cannabis.
[24] We have considered whether home detention might be appropriate. However, this was serious and sophisticated offending in the appellant’s home which also involved “local boys” smoking cannabis in his garage. Moreover, the appellant has minimised his offending. In our view home detention would not provide the necessary deterrence and denunciation.

Outcome

[25] The appeal against the sentence for cultivating cannabis is allowed and the sentence of two years and two months’ imprisonment is quashed. It is replaced with a sentence of one year and 10 months. The standard release conditions will apply. The concurrent sentence for allowing premises to be used stands.

Solicitors:
Crown Law Office, Wellington