Hockly v R [2012] NZCA 578 (10 December 2012)

Last Updated: 19 December 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA761/2012 [2012] NZCA 578

BETWEEN AARON STEWART HOCKLY Appellant

AND THE QUEEN Respondent

Hearing: 4 December 2012

Court: Ellen France, Wild and White JJ

Counsel: O S Winter for Appellant S B Edwards for Respondent

Judgment: 10 December 2012 at 10 am

JUDGMENT OF THE COURT

1. Order made extending the time for appeal.
2. The appeal against sentence is allowed. The sentences of two years and four months imprisonment on the cultivation charge and of four months imprisonment on the theft of electricity charge are quashed and a term of 10 months home detention is substituted.

100. The appellant is to go to 60 Cole Street, Dannevirke, at 12 noon on Tuesday 11 December 2012 and await the arrival of a probation officer and a representative of the monitoring company. The sentence of home detention is subject to the special conditions set out in the Appendix to this judgment.

4. The order to pay reparation of $1,196.90 stands.

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REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1] Aaron Hockly, the appellant, pleaded guilty to one charge of cultivation of cannabis and one charge of theft of electricity. He was sentenced by Judge Lynch to a term of imprisonment of two years and four months.[1] Mr Hockly appeals against his sentence on the basis that it is manifestly excessive. He seeks a sentence of home detention.
[2] As we shall discuss, our approach to the appeal is affected by its procedural history.

Factual background

[3] The charges were laid following a search of Mr Hockly’s rural address by the police on 28 October 2011. A cannabis growing operation was found in the double garage. There were 164 cannabis plants (between 60–90 cm in height) and 699 seedlings. The police also located associated equipment, namely, five heat lamps, seven power supply transformers, two carbon filters, six pedestal fans, a dehumidifier, electric heater and various extension cords.
[4] The cannabis was growing in a partitioned off area. The area was lined with polythene and split into three sections. The seedlings were in one section and the other two sections contained, respectively, 70 and 90 plants. The plants were in individual planter bags under lights. Mr Hockly diverted the electricity supply to the house before the meter, so he could use power without paying for it. It was ultimately agreed between the parties that the value of the electricity stolen was between $1,196.90 and just over $18,500.
[5] Mr Hockly was interviewed by police on the day of the search. He admitted he was responsible for the growing operation. He described how he had gone about it and said he had not yet harvested any plants. Mr Hockly also told the police he had a methamphetamine habit.

The District Court sentencing

[6] Judge Lynch took as his guidance R v Terewi.[2] The Judge assessed the offending as in the mid to upper level of category two in Terewi. That category encompasses small-scale cultivation of cannabis plants for a commercial purpose. The starting point for sentencing in this category is generally between two and four years but where sales are infrequent and of very limited extent a lower starting point may be justified.
[7] Judge Lynch based his assessment on the following factors:[3]

(1) The number of cannabis plants found.

(2) The degree of sophistication and planning. As the photographs plainly show this was an organised and well prepared growing operation.

(3) Commerciality. While [the appellant said he] did not intend to sell any of the cannabis, rather to trade it for methamphetamine, that is, if correct, nonetheless commerciality. This was a big undertaking with the potential ... to generate a significant amount of cannabis.

(4) The theft of the electricity. That is really allied to the sophistication, so I take care not to double count it. ...

[8] The Judge took as the starting point, three years and three months imprisonment. That point was uplifted by three months for the appellant’s “history of dishonesty”.[4] From the resulting three years and six months, Judge Lynch deducted six months for Mr Hockly’s remorse and commitment to rehabilitation. From the three years, the Judge afforded an eight month discount for the guilty plea. That left an end sentence of two years and four months.
[9] A concurrent sentence of four months imprisonment was imposed on the theft charge. Mr Hockly was ordered to pay reparation of $1,196.90.

A procedural mis-turn

[10] Mr Hockly appealed promptly against his sentence. However, the appeal was filed in the High Court. The impact of the fact that the cultivation charge was laid indictably was overlooked. Because of that charge, the appeal should have been to this Court.[5]
[11] The appeal in the High Court proceeded before Williams J.[6] The Judge concluded that the three years, three months starting point was manifestly excessive when considered alongside comparable cases. Williams J also said that there was no basis for the three month uplift for previous convictions. That was because the dishonesty-related offending was dated (2001 and earlier). The Judge considered a starting point of no more than three years imprisonment was appropriate. From that point, he gave a discount of nine months for the guilty plea and three months for remorse and rehabilitation.
[12] The Judge accordingly allowed the appeal and substituted a term of two years imprisonment. The Judge gave leave to the appellant to apply to the District Court to substitute a sentence of home detention.
[13] When the matter was referred back to the District Court, Judge Lynch pointed out that there was no jurisdiction for the High Court to hear the appeal. The parties accept that the High Court had no jurisdiction and that the appeal had to be reheard by this Court. The present appeal was accordingly filed.

The present appeal

[14] On appeal to this Court, Mr Winter for the appellant contends that a sentence of home detention should be imposed. In developing this submission, Mr Winter says, first, that the level of sophistication and other features of this offending did not justify placement in the mid to upper range of category two in Terewi. Mr Winter emphasises the absence of some of the features of more sophisticated enterprises such as hydroponics and elaborate attempts to conceal the operation. In addition, the absence of evidence of actual commercial activity such as cash and tick lists is said to support the appellant’s contention his intention was to swap plants for methamphetamine for his own use.
[15] Second, Mr Winter submits that the uplift for previous convictions was not justified given their age.
[16] Finally, Mr Winter says the appellant’s attendance at counselling and his commitment to rehabilitation mean a sentence which permits home detention is appropriate.
[17] The Crown submits that the starting point of three years and three months imprisonment adopted by the District Court was within the available range. Ms Edwards points, in particular, to the number of plants and the potential yield (an issue on which Judge Lynch heard expert evidence).
[18] The Crown ultimately did not seek to support the uplift for previous convictions. Finally, Ms Edwards said that if a term of imprisonment of two years or less was an available sentence, then there was no reason why home detention was not a suitable alternative.

Discussion

[19] We agree with the High Court Judge that there was no basis for an uplift for previous convictions. The dishonesty offending was dated and relates to a period when the appellant was about 18 to 19 years of age.
[20] That means that the only issue outstanding in this part of the appeal relates to the placement within category two of Terewi. On that aspect, the features identified by Mr Winter such as the lack of a high level of sophistication and the absence of indicia of actual sales, support the position taken by the High Court Judge. The starting point of three years adopted by Williams J is also consistent with the position taken in the Crown submissions at sentencing which advocated a starting point in the area of three years. In these circumstances, it would be unduly harsh on Mr Hockly for us to take a different position from that taken in the High Court. Accordingly, we consider that a starting point of three years imprisonment was appropriate.
[21] It was not disputed that the appellant should receive a discount in the order of 20 per cent for his guilty plea and a generous discount for his remorse and rehabilitative efforts. We simply adopt the breakdown used by Judge Lynch. From a starting point of three years imprisonment we deduct six months (16 per cent) for remorse and rehabilitative prospects and then apply a discount of six months (20 per cent) for the guilty plea. That leaves a term of imprisonment of two years.
[22] A sentence of home detention is therefore available. We agree that it is appropriate to substitute a term of home detention. Mr Hockly, prior to his remand in custody, engaged with the MASH Trust. His counsellor said he was doing “pretty well” and he passed all of his random drug tests. The home detention address is with Mr Hockly’s mother and there is no suggestion that it is not an appropriate address. Mr Winter advises he has discussed the recommended special conditions, which are set out in the Appendix to this judgment, with Mr Hockly and there is no objection to any of them.
[23] We turn then to the period of home detention. Taking into account the period of a little under two and a half months that Mr Hockly has already served of his prison sentence, on an evaluative assessment of the circumstances, we have concluded that a term of 10 months home detention is appropriate.[7]
[24] The notice of appeal was filed out of time. The delay is the result of counsel error. In the circumstances, no objection is taken to our extending the time to file the appeal.

Result

[25] An order is made extending the time to file the notice of appeal. The appeal against sentence is allowed. The sentences of two years and four months imprisonment on the cultivation charge and of four months imprisonment on the theft of electricity charge are quashed and a term of 10 months home detention is substituted. The appellant is to go to 60 Cole Street, Dannevirke, at 12 noon on Tuesday 11 December 2012 and await the arrival of a probation officer and a representative of the monitoring company. The sentence of home detention is subject to the special conditions set out in the Appendix to this judgment. The order to pay reparation of $1,196.90 stands.

Solicitors:
Winter Woods, Palmerston North for Appellant
Crown Law Office, Wellington for Respondent

Appendix – Special Conditions

The special conditions set out below apply. The appellant is:

1. To reside at 60 Cole Street, Dannevirke, Tararua District, for the duration of Home Detention.
   
2. To abstain from the consumption and/or possession of alcohol and non-prescription drugs, unless prescribed ... by a medical practitioner, for the duration of Home Detention.
   
3. Any dogs are to be contained away from the main dwelling at all times to allow unhindered access to the property for the Probation Officer, the Monitoring Company and Police for the duration of the Home Detention sentence.
   
4. To attend an assessment for a Department Rehabilitative programme and if found suitable to attend and complete the programme to the satisfaction of the Probation Officer and the programme provider, subject to programme availability.
   
5. To attend a maintenance programme on the completion of a Departmental programme to the satisfaction and as directed by the Probation Officer.
   
6. To undertake any further counselling/treatment/programmes as directed by the Probation Officer and to the satisfaction of the Probation Officer and provider.

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[1] R v Hockly DC Palmerston North CRI-2011-054-3713, 28 September 2012.
[2] R v Terewi [1999] 3 NZLR 62 (CA).
[3] R v Hockly, above 1, at [19].
[4] At [20].
[5] Crimes Act 1961, ss 2, 321 and 383.
[6] Hockly v Police [2012] NZHC 2938.
[7] R v Bisschop [2008] NZCA 229 at [18].