R V RUHL HC AK CRI 2008-029-000457 [2009] NZHC 1011 (12 August 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                        CRI 2008-029-000457



                                       THE QUEEN



                                               v



                     
          MANFRED ERIC RUHL



Hearing:        23 June and 12 August 2009

Appearances: M Hodge for the Crown
             B Sellars
for M E Ruhl

Judgment:       12 August 2009


                           SENTENCE OF WOODHOUSE J




Solicitors:
Mr M Hodge, Meredith
Connell, Office of the Crown Solicitor, Auckland
Mr C Comeskey, Barrister, Auckland
Ms B Sellars, Barrister, Auckland


R V RUHL
HC AK CRI 2008-029-000457 12 August 2009

[1]     Mr Ruhl, you appear for sentence on charges of cultivating cannabis,
possessing
cannabis for supply, and selling cannabis over a period from May 2007 to
April 2008. The maximum penalty for cultivating cannabis
is 7 years and the
maximum penalty for the other two offences is 8 years imprisonment.


[2]     You were charged with the offences
in April 2008. You pleaded guilty at the
depositions hearing in December 2008. You were committed for sentence in this
Court because
the District Court Judge determined that the penalties available in the
District Court were inadequate for the offending.


Facts


[3]     A summary of the facts is as follows. Sometime in early 2007 you set up a
cannabis growing operation at your home near
Kaitaia. You have qualifications, I
am told, as an engineer and an electrician. You built a concealed underground
bunker. The bunker
was then set up with various things required for growing
cannabis. You said you spent between $4,000 and $5,000 on this.


[4]  
  The operation was described in written submissions for the Crown as
"sophisticated" and in the Police summary of facts as "highly
sophisticated". I do
not agree with that, certainly when compared with other cases involving indoor
growing of cannabis. There were
in fact no plants in the bunker when the Police
searched the property.     The photographs of the bunker do not show undue
sophistication.


[5]     The same is indicated by what was found in the house. In the house a large
glass aquarium was being used to grow cannabis.
In this there were nine small
cannabis plants and six seedlings.


[6]     There was cannabis material in various stages of processing
weighing a total
of about 1.7 kilograms. It does appear that the useable quantity may have been less
than this total ­ and probably
was. Included in the total was 895 grams of what is
described as female head material which had been carefully manicured and prepared,

apparently, for sale. The summary of facts to which you pleaded guilty records that
you said that this material was to be sold
to an associate for $4,000 per pound ­
which works out at about $8,000 for the total quantity.


[7]    However, you told the probation
officer that all you had said was that you
estimated the value at $4,000 per pound. Your counsel has indicated this morning
that
you had knowledge of these values because of an addiction of your wife, which I
will come to. I will give you the benefit of the
doubt as to what you said, although
this does not make a significant difference in relation to the broad nature of the
offending.
The facts you did admit indicate that this was a commercial operation to
an extent. You did admit selling 7 to 8 ounces ­ that is
around 200 grams ­ for a
total of about $2,400 since setting up the operation in early 2007.


[8]    The Police also found electronic
scales, some cannabis in a ziplock deal bag,
and a box of plastic ziplock bags of deal bag size. There was a drying cabinet with
a
total of eight trays and a range of other equipment. Ms Sellars on your behalf this
morning, has acknowledged that there is a degree
of commerciality in what occurred.


Personal circumstances


[9]    Coming to your personal circumstances. You are 44 years old.
You live
with your wife of 13 years.


[10]   You moved to Australia at the age of 18. You were deported back to New
Zealand following a 9 year prison sentence
for sexual offending. You have some
other convictions in Australia and New Zealand. Those were for minor offences.
You have no previous
convictions for any drug offences.


[11]   It is apparent from the pre-sentence report that your arrest for these offences
has already
had adverse consequences for you. You told the probation officer that
your mother and son, and some former associates, no longer
want to have anything
to do with you. And before Christmas you slashed your wrists, although you were
discharged after one night
in hospital.

[12]   The probation officer said that on his assessment you repeatedly justified and
minimised your actions throughout
the interview. He said that you attempted to shift
the blame for the cannabis growing on to your wife on the basis that you had done
it
for her. And the probation report says you do not appear to have any real remorse.
The probation officer described you as having
an anti-social attitude of entitlement in
relation to your offending.


[13]   However, what I have learned from your counsel this
morning, Mr Ruhl,
tends to put that into a different light of some importance. I am advised, and I
accept, that your wife had a serious
drug addiction when you met her and was taking
illicit drugs intravenously. I am informed, and I accept, that that is no longer the
case, but she moved to consuming cannabis as a substitute for the more serious
addiction. That is what led to your involvement in
the cultivation and, to some
extent, supply of cannabis.


[14]   You requested this morning whether you could address me, which
you did.
And you have expressed, I believe, genuine remorse with a genuine understanding of
what you have in fact done to yourself
and your broader family.


[15]   You are assessed as being at low risk of further offending. I have received
letters from people
who have been involved with you in work or socially over the
last 18 months to 2 years and they are positive. I think this is exemplified
by the fact
that one of the people who is attending Court this morning is Mr Rautenbach who
has also offered you employment. The
pre-sentence report completed in May 2009
recorded that at that date you had been employed by a firm in Kaiwaka as a truck
driver
for the preceding 12 months. More recently you have been working for one of
the companies which has supplies a reference ­ and as
I have just said, you are now
offered more permanent employment.


Starting point


[16]   Mr Ruhl, as you have heard, I am required
to have regard to the principles
and purposes of sentencing set out in the Sentencing Act 2002, and I have done that.

[17]   In
fixing your sentence I have to establish a starting point relating to the
offending itself. Your counsel and Mr Hodge for the Crown
accept that your
offending comes within what is called category 2 of a Court of Appeal case called
Terewi1, and that was concerned
with small scale cultivation of cannabis for
commercial purposes. The starting point in those cases should generally be 2 to 4
years.
This is also applicable to selling and possession for supply.


[18]   In its written submissions the Crown indicated that the starting
point should
be around 3 years 6 months imprisonment. Mr Hodge has responsibly accepted in
oral submissions today that that is too
high, particularly when one compares the facts
of your offending with the facts of other cases the Crown refers to.


[19]   I have
also looked at some other cases. I will simply note the names of these
cases: they are Tronson2, Simcox3, Dean4, Clemett5, and MacNeil6.


[20]   When those other cases are compared with yours, so far as comparison is
possible, I am satisfied that the starting point
contended for originally by the Crown
is far too high. The starting point in all of those cases were either 3 years or 3 ½
years,
but the quantities of cannabis and the amounts of money involved in those
cases were all far greater than yours. One of them, for example ­ MacNeil ­
involved 15 to
20 pounds of cannabis sold over18 months for about $4,000 a pound
­ that is around $60,000 to $80,000. The starting point in that
case was 3 years.


[21]   As I have already indicated Mr Ruhl, I consider that the starting point in your
case should be the minimum
I can responsibly impose, and that is 2 years
imprisonment. That is an assessment of the totality of the offending and based in
considerable
measure on the Court of Appeal decision.




1
  R v Terewi  [1999] 3 NZLR 62
2
  R v Tronson (HC PMN, CRI 2008-031-464, 17 November 2008, Ronald Young J)
3
  R v Simcox (HC HAM, CRI 2007-039-1107, 8 April 2008,
Asher J)
4
  R v Dean (HC NAP, CRI 2007-020-000034, 23 April 2007, Rodney Hansen J)
5
  R v Clemett (HC BLE, CRI 2006-006-000895,
8 November 2006, Gendall J)
6
  R v MacNeil (HC AK, CRI 2006-404-6554, 7 November 2006, Allan J)

Personal circumstances


[22]
     I then need to come to personal circumstances.        There are no personal
circumstances justifying any increase in the starting
point. In broad terms, I do not
consider that there are any personal circumstances justifying a significant decrease in
the penalty
­ and I emphasise that I am referring to personal circumstances ­ other
than your guilty pleas.


[23]      In the written submissions
earlier presented on your behalf ­ and these I don't
think were prepared by Ms Sellars ­ these were prepared by somebody other than
Ms
Sellars ­ there was a submission that there should be a reduction of 40% for the
guilty plea and for other reasons. The other
reasons included a submission that you
ought to receive credit because there are no previous convictions for drug offences.
It is
correct that you have no previous convictions for drug offences but you have
previous convictions and some of a serious nature. I
do not intend to take the
previous convictions into account to increase the sentence, but there is certainly no
basis for a reduction
because of an absence of previous drug offending. That is
nevertheless relevant on the ultimate issue, and that is prison or home
detention.
Other factors which provide some mitigation are offset to an extent by some negative
aspects brought out in the probation
report.


[24]      You are entitled to a substantial credit for the guilty pleas. The guilty pleas
were made at depositions. The
Crown submitted that you are entitled to a reduction
of around 25% for a guilty plea at that stage of the proceeding. That is consistent
with a Court of Appeal decision7.


[25]      A reduction of 25% reduces the starting point from 2 years to 18 months
imprisonment.
I consider a sentence of 18 months imprisonment is the appropriate
sentence subject to consideration of the possibility of home detention
which I am
enabled by the statute to consider. It is that question Mr Ruhl which has caused me
some difficulty.




7
    R v Walker
[2009] NZCA56 (6 March 2009) at [19]

Home detention


[26]   I will indicate, before explaining my reasons, that I do intend to
impose a
sentence of home detention. What I am doing, I believe, to an extent is taking a risk
in being lenient ­ and I hope it is
justified. As I indicated to you and to your former
counsel when you first appeared for sentencing and when sentencing was adjourned
to pursue home detention, there were particular difficulties because your offending
occurred at your home and you are wanting to
return to your home for sentence, and
because of the involvement of your wife in that offending and you will share your
home with
her.


[27]   There is a Court of Appeal decision, and other cases, which indicate that
generally for offending of this sort which
occurs at home, home detention will not be
appropriate. The fact that your wife has acknowledged that she encouraged you in
your
offending causes obvious difficulties so there are distinct risks in fact for both
of you with a sentence of home detention. But
I weigh against that all of the other
things that I have referred to earlier in my remarks. This includes what you have
said to me
today. It also includes the fact that your wife is receiving counselling and
assistance for her problems. And it includes the fact
that plainly you have support
from others in the community and in employment.


[28]   For these reasons it is my intention to impose
a sentence of home detention
and I will impose a sentence of 10 months home detention.


Sentence


[29]   If you would please stand.


[30]   Mr Ruhl, on all three offences you are sentenced to 10 months home
detention. The home detention is to be served at your home at 199 Pouto Road,
Dargaville.


[31]
  I impose a special condition of home detention that in the course of it you are
to be employed by Kiwi Electrix Limited.

[32]
     There will be an order for destruction of the cannabis material that was
seized.


[33]      I just say in conclusion Mr Ruhl
that I hope the risk ­ certainly in terms of
precedent ­ that I have taken will be justified.


[34]      Stand down.




______________________________
Peter Woodhouse J