R V LOW AND ANOR HC CHCH CRI 2008-086-000386 [2009] NZHC 1085 (20 August 2009)

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
                                                              CRI 2008-086-000386
                                                              CRI 2008-086-000406



                                      REGINA



                                          v



                          DAVID GRANVILLE LOW
                          MARK REGINALD
RAPLEY



Hearing:       20 August 2009

Counsel:       K J Beaton for Crown
               D C Ruth for Prisoners

Judgment:   
  20 August 2009


                  SENTENCING REMARKS OF FOGARTY J



[1]    David Granville Low and Mark Reginald Rapley, you
appear for sentencing
today on very serious charges of cultivating and selling cannabis in large quantities
on the West Coast of
the South Island.


[2]    There is no doubt Mr Low that you are the principal offender. You have
participated both in a very sophisticated
ongoing cultivation of cannabis and selling
it in large quantities over a long period of time as has been apprehended and possibly
longer than has been proved.


[3]    Mr Rapley, you are the life partner of Mr Low. It is clear that you have a
secondary culpability
but you have assisted in the cultivation and to some extent in



R V LOW AND ANOR HC CHCH CRI 2008-086-000386 20 August 2009

the
sales and being partners together you Mr Rapley have also indirectly obviously
benefited from the cash flow that would come from
the sale of cannabis.


[4]    Cannabis is a controversial drug. There are sections of the community who
think it should be decriminalised
but the fact of the matter is that it is criminalised
and there is ample evidence supporting the status quo at present of the problems
that
the abuse of cannabis has on many people, particularly young people. Under the
normal principles of sentencing the Court of
Appeal decision in R v Terewi  [1999] 3
NZLR 62 would indicate a starting point for you Mr Low in the region of four years
and for you Mr Rapley, because of the combination of your
lesser offending and the
fact you have no previous convictions down to two to two and a half years.


[5]    I would normally have
followed the guidance of the Court of Appeal in this
regard and made adjustments according to aggravating and mitigating features
and
taking into account your pleas of guilty. But I am not going to go through that
analysis because in this particular case there
is an extraordinary feature which
displaces that analysis, so it seems to me, guided by the decision of the Supreme
Court in R v
Jarden  [2008] 3 NZLR 612.        In that decision I had sentenced a drug
dealer following the guidelines but not taking into account the very personal
circumstances
of the suicide of his partner just before the trial commenced and the
effect that that had on his life. The sentence was adjusted,
albeit by only a small
amount, by the Supreme Court for that reason but there were cautionary statements
from the Supreme Court to
the effect that sentencing Judges should not consider
themselves bound by the guidelines when there were exceptional circumstances
applying.


[6]    This is a much stronger case for treating this as an exceptional sentence. This
is because of your mental health
condition Mr Low. In combination with your
apprehension for this offending you lost your parents very quickly, over a period of a
fortnight, and a close friend, and all of these matters appear to have compounded into
placing you in what your psychiatrist has
described as a major depressive episode.
You were admitted to the Psychiatric Ward at Grey Hospital, Greymouth, on
11 January because
of depressed mood, anxiety and suicidal thoughts. Both your
psychiatrist and your psychologist have provided the Court with opinions
which

confirm that we are talking here about a serious episode and your psychiatrist
describes it as a "major depressive episode".
Your psychologist describes it as a
"moderately severe depressive symptoms with associated suicidal ideation and
intent".   It is
necessary for me Mr Low to spell out these personal circumstances
because of the exceptional way I am going to treat you today and
may I say I
certainly understand, I hope the community understands, we are talking about a
mental health problem, just as people
have physical health problems.


[7]    Both the psychologist and psychiatrist are of the view that a prison sentence
would raise
a significant suicide risk. I am of the view that whatever sentence I
impose on you Mr Low has to be, as far as possible, proportionate
to the culpability
of your offending.    On the other hand, however, I think it would be wholly
disproportionate if I imposed a sentence
on you which led to a tragedy whereby you
took your own life, something I hope you certainly try to put out of your mind. So
for
this reason, and this reason alone, I am not sending you to prison. Rather, I am
going to follow the recommendation of the probation
officer that you be sentenced to
home detention for 12 months. This is a serious confinement. You will be confined
to your home but
you will have, as a result, the continued support of your partner,
Mr Rapley, of your friends, and of the mental health clinicians
and staff on the West
Coast. This judgment should not be treated by the community as some kind of soft
sentence. It is in fact the
other way, and simply avoiding a totally disproportionate
outcome to this most unfortunate set of offending.


[8]    Your counsel
has submitted numerous letters from friends in the community
and placed before me your very positive role in the community before
this offending
emerged.    I am not sentencing you softly because of that support from the
community. I can sense here today that
friends and supporters of you have come
from the West Coast. That is to your credit and I hope will go to your rehabilitation
into
the community. But, have no doubt, that from my mind sitting here as a Judge
applying the law, your criminal activities have inflicted
harm on the community over
a period of time. You will have plenty of time in the remainder of your life to make
amends to the community,
I am sure.

[9]    Accordingly, Mr Low I sentence you to 12 months home detention together
with the special conditions recommended:


       ·   To reside at 54 Tauranga Bay Road, Cape Foulwind, Westport for the
           duration of the sentence.


       · 
 To undertake an alcohol and drug assessment, and if found suitable, to
           attend and complete treatment as directed by the
Probation Officer and to
           the satisfaction of the Probation Officer and the Service Provider.


       ·   To maintain ongoing contact with Mental Health Services
as directed.


[10]   Mr Rapley, again partly because I consider it essential at the present time that
you are present day by day
to support your partner, I am also not going to send you
to prison. You stood a good chance under the ordinary orthodox analysis
of not
going to prison anyway but getting a sentence of home detention. Normally I would
suspect if I had done the analysis the other
way I would have imposed a sentence of
home detention on you short of imprisonment, but a fairly significant one. I am not
going
to do that because it is important for the two of you being able to live your life
earning a lawful income running your homestay
business and therefore you need
some freedom of movement.           It seems to me, accordingly again, that the
recommendation of
the probation officer, in your case of community work, is
applicable but having, as you have heard me, discussed this with Ms Beaton,
I think
the appropriate combination is community work and community detention which
will effectively operate as a curfew on you.


[11]   For these reasons I am sentencing you to six months community detention
and 300 hours of community work. Like Mr Low, I
think this is your opportunity to
make a contribution to the community to make amends for your participation in
criminal activity.
In addition there will be a curfew from 7 pm to 7 am.


[12]   I should say I do all of this against the views of the police who
are concerned
that this kind of sentence will simply give you further opportunities for offending.
Having read the material and the
reports I think that is a low risk. I certainly hope

that it is no risk at all. I do not think I need to say anything more about
that. You
will appreciate that this Court having treated the case as exceptional calls for
exceptional conduct on the part of both
of you in the future.


[13]   I turn then to the question of forfeiture and other penalties associated with
this offending. This
is potentially a complex matter. The Solicitor-General has
sought forfeiture of your home. I do have the power to do that but I must
exercise
that power according to well established principles which have been very carefully
laid out by Ms Beaton. Critical upon
this is the penalty of forfeiture must not be an
undue penalty totally disproportionate to the culpable offending.


[14]   In this
case your property is valuable ­ in the region of $430,000 and several
times the estimated value of the cannabis that appears to
have been grown on the
property during the period of offending. I am quite satisfied that it would be an
undue hardship to forfeit
your home and I am not going to do that. However, what I
am going to do is ensure that you are deprived of the benefits from this
offending.


[15]   There will be an order that the $17,000 recovered by the police is forfeited.
That is pursuant to s 32(3) of
the Misuse of Drugs Act 1975. Pursuant to s 32(4) Mr
Low your Toyota Landcruiser vehicle is forfeited.


[16]   The next and more
difficulty one is the question of calculating the benefits
obtained during the growing period. This is a potentially complex exercise.
There
are affidavits filed in abundance in support on the file. I am satisfied that this has
been analysed correctly according to
law by Ms Beaton for the Crown and Mr Ruth
and taking into account assessments of the yield together with the $6,000 in cash on
the
sales, counsel have agreed that the appropriate sum is $55,000.            I have
sufficiently familiarity with the affidavits and
confidence in counsel to judge that
that is an appropriate sum and accordingly Mr Low you are ordered to pay the sum
of $55,000 as
a pecuniary penalty, on the terms annexed.


[17]   There is an order for destruction of the cannabis and cultivation paraphernalia
and equipment seized by the police.

[18]   The sentences for both Mr Low and Mr Rapley are deferred to commence on
Monday, 24 August, that being the date that has been arranged for monitoring
bracelets
for home detention and community detention to be affixed.




Solicitors:
Raymond Donnelly & Co, Christchurch for Crown
DC Ruth,
Christchurch, for Accused

TERMS OF PAYMENT OF PECUNIARY PENALTY BY DAVID
               GRANVILLE LOW




(a)   That pursuant to
s 25(1) of the Proceeds of Crimes Act 1991 the first
      respondent pay to the Official Assignee on behalf of the Crown a
    
 pecuniary penalty of $55,000;


(b)   That pursuant to s 29(3) of the Proceeds of Crime Act 1991, the
      property at 54 Tauranga
Bay Road, Cape Foulwind, Westport, is
      available to satisfy the pecuniary penalty;


(c)   That the first respondent is to pay
the pecuniary penalty to the Official
      Assignee on or before 30 November 2009;


(d)   That pursuant to s 51 of the Proceeds
of Crime Act 1991, in the event
      the pecuniary penalty is not paid by the first respondent by that date,
      the Official
Assignee is to sell the property in order to satisfy the
      pecuniary penalty and to account to the first respondent in relation
to
      any balance.