R v Adams DC Invercargill CRI-2011-025-2225 [2011] NZDC 1720 (19 October 2011)

Last Updated: 3 October 2016

IN THE DISTRICT COURT AT INVERCARGILL

_{CRI-2011-025-002225}

THE QUEEN

v

SHANE DEANE ADAMS

Hearing: 19 October 2011

Appearances: E Riddell for the Crown

R G R Eagles for the Prisoner

Judgment: 19 October 2011

_{NOTES OF JUDGE K J PHILLIPS ON SENTENCING}

[1] Mr Adams, you are for sentence before me this afternoon in the Invercargill Court on a large number of charges but I have to assess it on the basis of an overall criminality. The charges that I am dealing with you relate to the cultivation of cannabis, the maximum penalty being seven years’ imprisonment; receiving (x 11) where the maximum penalty was seven years’ imprisonment in the terms of ss 246 and 247(a) Crimes Act 1961; receiving (x 2) in the terms of s 246 and 247(b) Crimes Act and the maximum there is 12 months’ imprisonment on those two matters as against seven years on the other 11 receiving charges; unlawful possession of a firearm (x 6) in breach of s 45(1) Arms Act 1983 where you are liable on each charge to a term of imprisonment for four years or a fine of $5000; then on 4-5 July

2011 possession of cannabis simpliciter where you are liable to three months’

_{imprisonment or a fine of $1000.}

R V ADAMS DC INV CRI-2011-025-002225 19 October 2011

[2] You had become involved with the proceeds of a large number of burglaries that occurred on lifestyle properties surrounding Invercargill between December

2010 and February 2011. It appeared from the police investigations of the various burglaries that the burglars were particularly focussing on electronics, alcohol, jewellery, televisions, furniture and firearms. Also at one property a trailer was taken, no doubt in order to transport stolen property. Acting on information the police received, a search where you live (I think in Kennedy Road) a large amount of the property taken in these burglaries was recovered as a result. For example part of the $36,000 worth of property taken from Myross Road, $1800 of the property from Steele Road, a $2000 shotgun from Allen Road, over $6000 from a property on the Riverton-Wallacetown Road and so on. At 318 Mill Road, $14,900 worth of property, 760 Wallacetown Road $12,913; 277 Curran Road, $12,000;

385 Bay Road, $15,000. That is just a brief description of the properties that were burgled and the value of property taken. It ranged, from the information I have, down as low as just over $1000 at some properties. All the firearms found at your property came from burglaries that had been reported to the police as well.

[3] Whilst they were there the police did a quick inspection of your house and surprise, surprise they found a large hydroponic cannabis cultivation process taking place in a partitioned off part of your garage, set up permanently for the growing of cannabis, lined with polythene. In one room there were eight fish tubs each with cannabis plants under heat lamps (and obviously being looked after), reflective paper and so forth. Another room had six plants in it. There was reticulated water and there was growing apparatus as well. In another room there were five other plants. There were 19 plants in all found established quite sufficiently for the police purposes, an overall pattern of growing cannabis. There was also a large amount and quantity of fertiliser. The overall development of the cultivation showed experience and it showed skill. The plants themselves reflect that as they were producing a high grade of cannabis head. It was estimated, by experts in that area, that you would get three to five ounces of cannabis off each of your plants. That means that the sums being done by them show that the figures would be between $14,000 to $47,000 worth of yield and that you could, with ‘a good wind behind you’, do three crops a year of potent cannabis going out onto the Invercargill market.

[4] I have to approach your sentencing on the basis of looking at your overall offending and attempting to get to what I consider to be an appropriate starting for your overall criminal actions. I do not intend to start saying a starting point for that and a starting point for this and add it altogether. I am going to impose your sentence on the receiving charge in respect of the trailer (and I just take that as an example) and the sentence that I am going to impose will be imposed on that charge but it will reflect all of your actions of criminal kind taking into account any aggravating circumstances, allow for the mitigating circumstances of the offending and your own personal mitigating factors as well.

[5] I have been assisted by having submissions from the Crown. The Crown says that in relation to the cultivation the system was sophisticated as to its positioning, as to the apparatus, as to the watering, how it was split up into chambers and how you had all the relevant chemicals to boost growth. Ms Riddell, for the Crown, has made submissions about the potential yield, the rotation of crops and the production of high grade material. She remarks that here we have this cannabis grow and you in possession of some six firearms. In relation to the receiving from the 13 different properties, the various items totalled a value of about $35,470 says Ms Riddell, it showing that you were vastly involved in getting this property together. Mr Eagles would say that that is what those owners said the property was worth, in realistic terms it would be a great deal less than that. I note that also when you were on remand you were granted bail to attend a funeral in July of this year. When you returned after the funeral, you were searched and what was found inside you was some 48 grams of cannabis that you were taking into the prison. If that was by itself I would consider that to be a serious matter, as the Crown does, but when I have a look at your other offending it really goes to one side as such.

[6] Ms Riddell has brought to my attention a number of cases, such as R v McDonald where a starting point for seven plants showed a 21 month starting point with a 15 month end point; R v Walpole, 25 cannabis plants, starting point of some two years; Thompson, 21 months for 14 plants. In relation to receiving Ms Riddell placed some reliance on R v Caldwell and R v Clayton, both cases of which I have read. In relation to Clayton the starting point of three and half years was used. Caldwell is close to the facts of your case, I accept that. She also

discusses P v Som where in the District Court a person received 10 months on

11 charges of receiving of $30,000 worth of property. The High Court, on appeal, found that manifestly inadequate and substituted a starting point of three years three months with an end point of two years. In assessing the matters that I need to assess I take those cases into account.

[7] What Ms Riddell would say is that I should be looking, I think I said to her some four years but in reality when I count up what she is saying, is that I should have a starting point for the receiving at three years, add cumulatively for the cultivation 21 months and a further two months for cannabis. If I was to do that I would have a starting point in the vicinity of nearly six years, then add further on for the possession by you of these firearms. I am not going to follow that.

[8] Mr Eagles has said we only have 19 plants, it was your first attempt; for a modest capital outlay in relation to the cannabis the suggested street value was speculative. (While ‘speculative’ as it may be described, it is clear that such calculations in the matters detailed therein have had specific approval from the Court of Appeal and it is advice that Judges get on sentencing for this type of offending every day. It is normally accepted that a plant well looked after from good origins would have three to five ounces of head grown indoors.) Mr Eagles would say that you were out of work, you had been unemployed for some time and that the cultivation was done to boost your income. The receiving charges, Mr Eagles says, the value of the property is a loss to the owners but that I need to have a regard to the fact that they are talking about replacement value but the actual loss is what the property was worth. He submitted that the actions by you in obtaining possession of these items was ‘opportunist’ and that you made a modest payment to buy it. I have my severe reservations about that ‘story’. I think that it is highly improbable that burglars who ‘did’ 13 houses would take $2000 for all the property only, but I have to accept that there is not any evidence that the police could have used to charge you as being one of the burglars. I do not accept however the submission that the guns were one of the ‘lots’ that you had purchased.

[9] In respect of your sentencing Mr Eagles says that the starting point for cultivation would be in the vicinity of two and a half years, the receiving three and a

half years and you are entitled to guilty discount. I have to take into account the Arms Act matters but they are part of the overall receiving charges in Mr Eagles’ calculation of penalty.

[10] I have taken all those matters into consideration. I have to have regard to the matters as detailed in the Sentencing Act 2002. Particularly I have to have regard to the provisions of ss 7 and 8. You, in respect of the cannabis cultivation, have to be held out as an example. Your conduct in that regard has to be denounced. You have to be deterred from re-engaging in this and anybody who is thinking or contemplating of getting involved in cultivation of cannabis has to understand the penalties that follow if they are caught. Therefore deterrence is a major ingredient of your sentence. I also think however, when I have regard to the overall offending and to the unlawfulness of it all, that there is a strong demand for the protection of the community from you. You have to understand that these victims are out of pocket, whether it be them personally or their insurance company, someone has lost out. I will hold you accountable in the sentence I am going to impose upon you. Under s 8

I have to take into account the effect of the offending on the victims. While you are the receiver rather than the burglar, you are being dealt with as a receiver, I take that into account. But I also have to be consistent and that is why counsel (Ms Riddell and Mr Eagles) have been discussing other cases so that I can have some consistency.

[11] I take into account your pre-sentence report. I note that your prior convictions in 1989-2000 were at a time when you were a member of a local chapter of the Road Knights. I note that you say to the probation officer that you regret your offending; that you are not engaging in any harmful alcohol or drugs as it is put ‘at the moment’ (but of course you have been custodial remand and it would be questionable if you were released whether that would continue). You have no income for reparation. With the nature of the sentence I am going to impose, I do not intend to make any reparation order. I do not accept that you purchased these items for your own use. At the very best of it, they were going to be ‘flicked’ by you to other people for profit. The nature of the cultivation and the intensity of the cultivation, in my view, belies any suggestion that the cannabis was for your own use. I note your suggestion that you are unemployed, but here, in your possession,

were large amounts of property that you say you only paid some $2000 for. I think that is also highly improbable.

[12] When I go to the heart of your sentencing, I go back and assess your overall criminality. In relation to the cultivation you fall in the second band of a decision called Terewi. The second band for sentencing indication, or tariff cases, says the sentence starting point should be between two years and four years. I, in my calculations, believe that a starting point for your involvement would be some two years (the lowest end of band 2). In relation to the receiving, I take into account that if I was just to sentence you by adding a sentence on to that two years for the cultivation, I would have to take into account totality, albeit that Ms Riddell (Mr Eagles really too) could be right the overall criminality would have resulted in a starting point of some three years if you were to be sentenced on that alone. I consider it an appropriate point, taking into account all the factors I have to, is

18 months’ imprisonment. In relation to the firearms, you knew because of your past convictions and the sentences imposed upon you in relation to matters, that you should not have had these firearms. I note your conviction in March 2000 where I think you received two years’ imprisonment. I note the possession of cannabis and the possession of apparatus in 1990, 1992, 1994 and 2002. I note the serious violence matters in May 1994. I note your age. In respect of the firearms therefore, again accounting for totality, I think a starting point would be some four months. In the cannabis matter, where the maximum term is three years, you pleaded guilty. You were taking this cannabis into a prison. I consider a starting point there would be some two months.

[13] Each of those areas of sentence involve separate offending in my view. I would make each area cumulative on the other areas. That would have ended up with four years as the sentence starting point. I do not intend to uplift for your prior convictions there being a long gap in your convictions. In the end, before I look to matters that are mitigating for you personally, I do not see any other aggravating factors to raise that four year starting point. Neither do I see any factors relating to reducing it. You are not in a position to pay reparation. In reality, remorse relates to you being sorry you got caught.

[14] In respect of the guilty plea, that is factor that I can take into account. The

Crown suggests that you are entitled to a full discount. I agree.

[15] Accordingly, the starting point of four years is reduced by one quarter in the terms of R v Hessell. I arrive at an overall point in sentencing as an end point of three years’ imprisonment. Again I stand back and consider whether I have made sufficient allowances for issues relating to totality, having considered it and again examined the facts in relation to each separate set of offending, I believe I have. In the end I consider it an appropriate and somewhat merciful level of sentencing for you is for you to go to prison for three years.

[16] In relation to the charge of receiving the Burford tandem trailer, which is I assess as the head or lead offence under CRN 2001, on that charge you will go to prison for three years.

[17] In relation to the other charges of receiving, on each of those you will go to prison for 10 months.

[18] In relation to each of the charges relating to the firearms matters, you will go to prison for six months.

[19] In relation to the charge of cultivation of cannabis, you will go to prison for

16 months.

[20] On the charge of possession of cannabis, you are simply convicted and discharged, taking into account all of the other penalties. In the end the sentence is imposed on CRN 2001.

[21] I make orders for the return of all recovered property and an order that all utensils, apparatus, cannabis and such other material seized shall be destroyed.

K J Phillips

District Court Judge