Police v Gubb [2017] NZDC 1001 (20 January 2017)

Last Updated: 21 March 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT PALMERSTON NORTH

CRI-2016-054-000733 [2017] NZDC 1001

NEW ZEALAND POLICE

Prosecutor

v

DANIEL WILLIAM GUBB

_Defendant

Hearing:	20 January 2017
Appearances:	Sergeant P N Coker for the Prosecutor M Anderson for the Defendant
Judgment:	20 January 2017

_{NOTES OF JUDGE J D LARGE ON SENTENCING}

[1] Daniel William Gubb appears for sentence today on three matters. On

4 November last year I gave a sentencing indication in respect of two of those charges, one charge of cultivation of cannabis, the other possession of cannabis for supply. I will come to the rationale and reasoning for the conclusion I reached at that point shortly.

[2] In addition to those two charges which occurred on 25 February last year, Mr Gubb faces an additional charge which occurred on 10 January, namely “with intent to frighten the named person, threaten to injure that named person”. Mr Gubb acknowledges today his guilt and pleaded guilty, so he gets full credit for that.

[3] The cannabis charges occurred when the police were at an address in Fielding assisting a dog control officer. While uplifting dogs from a property, there was a

NEW ZEALAND POLICE v DANIEL WILLIAM GUBB [2017] NZDC 1001 [20 January 2017]

strong smell of cannabis from a shed adjoining the chicken pen where the dogs were held.

[4] The search of that shed revealed it had been partitioned into five rooms, four used to grow cannabis. The rooms were lined with black polythene and installed with electrical lighting, heating and ventilation flaps.

[5] The rooms were strewn with plastic gardening pots, bags of potting mix and various fertilizer products. Electricity was being run from the main garage, and power cords, converters and electrical timers were set up for each growing room.

[6] A search of the first room located 25 potted cannabis plants growing on an upper shelf. On the lower shelf and floor were another 25 potted cannabis plants producing head. The second room was used as a storage room for spray bottles, latex gloves, empty pots, carbon filters and potting mix.

[7] A search of the third room located 33 potted cannabis plants growing under heat lamps. Located under a shelf used to grow seedlings was a large clear snap-lock bag containing 110 grams of dried cannabis head.

[8] The fourth room contained 45 cannabis plants, 20 large cannabis plants producing cannabis head, and 25 smaller cannabis plants growing under heat lamps. In the fifth room, 29 large potted cannabis plants were located, all producing cannabis head.

[9] A search of the main garage revealed another growing room in the loft and 82 seedlings found. Adjoined to the grow room was a table set up with weighing scales and bowls stained with cannabis residue. Also located on the table were various tools, spare heat lamps and large snap-lock bags.

[10] The defendant had been jointly charged with another, the defendant pleaded guilty to those two charges, no proceedings were continued against the other person. Consequently, Mr Gubb, I am obliged to sentence you on the basis of that summary of facts.

[11] In the extensive submissions filed by Ms Anderson for the purposes of the sentencing indication hearing in November, there was referral to the lead case of R v Terewi1 which sets out a number of categories. It was common ground between the police submissions and Ms Anderson’s submissions on your behalf that you fell into category 2, which if I can summarise really is small scale commercial cultivation.

[12] There was no argument about the appropriate category. The aggravating features in respect of your actions were the obvious premeditation required by the way the rooms were set up, the power boxes, the timers, bypassing the power metre to avoid detection, the partitioning of the room, the lining of the room, the ventilation and other aspects.

[13] There were cannabis plants in a variety of stages of growth and there was clearly second aggravating feature of commerciality to the process. You had had bags there, you had had scales there, you were growing, you were weighing, you were bagging and you were selling.

[14] You are not charged with selling, you are just charged with possession for supply, but the supply was reasonably obvious. You accepted that by your guilty pleas. You have got a moderate history and I did not take the history into account when I was doing the assessment of what penalty should be imposed on you.

[15] I thought the start point should be one of three years, which is the submission your counsel made. The police submitted that it should be a start point of three years, three months, but for the purposes of the sentencing indication I adopted the three years and I do not step back from that now.

[16] What I am obliged to do of course is to take into account your early guilty pleas. That seems to be the only mitigating factor that was available, and as I indicated in the sentencing indication notes, I give you full credit for those guilty

_{pleas which is a discount of 25 percent.}

1 R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA).

[17] Ms Anderson has addressed the other aggravating factor here which I must take into account, that is the new charge. That was not present when I gave the sentencing indication in November last year, that occurred in January of this year. It occurred therefore while you were on bail for these charges.

[18] It may be understandable why you were upset and you used the language and behaved in the way you did which gave cause to that new charge, but the fact that you were on bail and continued to offend is an aggravating factor.

[19] Ms Anderson has asked me to take into account the fact that you are not going to be able to see your children if you go to prison, the fact that you have put your hand up and accepting responsibility for the civil debt to the electricity supply company for some $3187.

[20] There is no formal reparation order able to be made because that charge is no longer before the Court, but you are civilly liable for that and I leave that to the supply company to recover in due course.

[21] I take into account also that the children were removed from your care, but that cannot be a factor which can weigh heavily in your favour because that occurs irrespective of the result today. Whatever reasons they had for that must stand alone and be dealt with by another jurisdiction in the Family Court, not this one.

[22] I reflected on whether you should get an additional discount for matters raised by Ms Anderson in the pre-sentence report, but I think any potential discount there is offset by the debt for the additional offending, so I am going to approach sentencing on the basis that one cancels out the other.

[23] In the circumstances, the end sentence in respect of the each of the two charges of possession of cannabis for supply and cultivation of cannabis, you are sentenced to two years and three months’ imprisonment. In respect of the new charge, frightening and by threatening to injure, you are convicted and discharged. I could have made a cumulative sentence there, but I think when I step back and look at the total picture I should stand by the indication I gave you.

[24] That clearly is beyond the sentence where home detention is able to be addressed, I did note in the pre-sentence report that the address proposed was not suitable. Had I been able to get to a point below two years, I would have adopted Ms Anderson’s submission that the sentencing should be adjourned so that an address could be located, but that is not the case so I do not. You are accordingly sentenced to two years, three months’ imprisonment.

J D Large

District Court Judge