R V EUGENE KENNETH YOUNG HC WHA CRI 2008-029-000555 [2009] NZHC 54 (4 February 2009)

IN THE HIGH COURT OF NEW ZEALAND
WHANGAREI REGISTRY
                                                                   CRI 2008-029-000555



                                      THE QUEEN



                                             v



                        
  EUGENE KENNETH YOUNG



Appearances: M B Smith for the Crown
             S M Nicholson for the Prisoner

Sentence:      4 February
2009


                    SENTENCING NOTES OF PRIESTLEY J




Counsel:
M B Smith, Crown Solicitor, P O Box 146, Whangarei 0140 Email:
[e-mail]:
S M Nicholson, 158 Bullman Road, RD 1, Okaihau 0475. Email: [e-mail]




R V EUGENE KENNETH YOUNG
HC WHA CRI 2008-029-000555 4 February 2009

[1]    Eugene Kenneth Young, you appear before me today to be sentenced on one
count
of cultivating cannabis, laid indictably under the Misuse of Drugs Act 1975.
The maximum for that charge is one of 7 years imprisonment.
You pleaded guilty at
a very early stage in April 2008, prior to depositions. When the cannabis in question
was discovered by the
police during a raid on your home you adopted a co-operative
stance and for that stance and the early guilty plea I intend to give
you full credit.


[2]    Although you pleaded guilty in the Kaikohe District Court the District Court
declined jurisdiction which
is why you are being sentenced here.


[3]    In February last year a search warrant was executed on your home address in
Waipapakauri.
A large number of cannabis seedlings were found both inside and
outside your house of varying heights and ages. The total count was
1,034 cannabis
plants. You admitted to growing cannabis at that address. You told the police that
you were growing it for your own
use. Had the total number of seedlings grown to
maturity one might have expected a yield on your own estimate of 2,000 ounces with
a potential value, depending on market conditions, of between $400,000 and
$750,000. However, that yield, as counsel accept, is somewhat
fanciful. At least
half of the plants would probably have had to be discarded because they were male,
not female plants.      And
the number of plants which would have survived
transplanting and which might have grown to maturity is problematic. So I certainly
do not intend to deal with you on the basis of that estimated potential yield.


[4]    You are aged 39. You appear to be living
in a stable de facto relationship.
You are unemployed and on the sickness benefit. You have been using cannabis, so
you say, for
the last 25 years. Clearly you have a serious addiction to cannabis. The
pre-sentence report which I have read, given your history,
assesses your risk of re-
offending as being high. You, to your credit, report that you have made contact with
the Kaitaia hospital
to get assistance to address your drug abuse. You are, however,
perhaps unsurprisingly in that area, on a waiting list for treatment.
You were being
considered for a residential programme but you are reluctant to do that because it
would involve separation from your
family.

[5]    Regrettably you have a long list of previous convictions. These include 7
convictions for cannabis cultivation or
possession and possession of pipes. You also
have a number of non-Misuse of Drugs Act convictions of a serious nature, driving
whilst
disqualified, wilful damage, aggravated robbery and other convictions which I
do not need to specify.


[6]    The aggravating features,
so far as your offending is concerned, are that this
was cultivation on a very large scale. It was deliberate. A number of growing
areas
on your property were chosen. You were in there for the long haul and inevitably,
given the large number of plants involved,
there would have been a high element of
commercial gain in your sights.


[7]    Aggravating features relating to you the offender
are your previous
convictions, which under s 9(1)(j) I must consider, relating to cannabis cultivation.
Quite simply you have not
learnt your lesson. I accept that probably you have
continued on the cannabis cultivation track because of your own addiction. But
regrettably I must treat you
more severely than would otherwise be the case because
of your track record in this area.


[8]    So far as mitigating factors are
concerned I intend to take on board your very
early guilty plea, prior to depositions. I also see a glimmer of self-awareness in
your
realisation that you do need assistance. I note, however, that one should be cautious
about that, because your response to previously
imposed community based sentences
has not been particularly satisfactory. You have convictions for breaches of periodic
detention
and community work. Whether on your release from jail you put yourself
on the straight and narrow or continue with your chequered
history is entirely a
choice for you. You are old enough and wise enough now to know the consequences
of the two choices open to
you.


[9]    I have discussed with counsel the type of sentence which I have in mind and
both counsel, Mr Nicholson having helpfully
taken instructions from you, accept that
both my start point, my methodology in terms of R v Taueki  [2005] 3 NZLR 372,
and my end sentence produce a result to which no exception can be taken. Therefore
I embark on that sentencing methodology now.

[10]   In terms of R v Terewi  [1999] 3 NZLR 62 I regard this as serious offending,
involving large scale commercial growing, putting you in category 3 of Terewi. The
start point
of this category would be four years or more.


[11]   I have also given some weight to the comments and results of the Court of
Appeal in R v Shelford & Kingi (CA 175/06 and CA 187/06, 13 November 2006)
and R v Butters (CA273/06, 14 March 2007). Involved here,
Mr Young, were a
large number of plants on your part, more than in Butters or Shelford & Kingi.
However, as I have said, it is problematic
how many would have reached maturity or
what a proper estimated yield would have been. Nonetheless I consider you can
properly be
placed at the bottom of category 3 of Terewi. I therefore intend to use a
start point of four years imprisonment. I am going to uplift
that by six months to
reflect your prior cannabis offending which I regard as a legitimate aggravating
factor here. And I then intend
to give you a generous discount to reflect your early
guilty plea, to encourage your rehabilitation, and to address your other personal
circumstances, of one third.


[12]   Stand up please.


[13]   From a start point of 4 years with a 6 month uplift and across the
board
discount of one third I arrive at an end sentence of 3 years imprisonment. I therefore
sentence you to a term of three years
imprisonment.


[14]   Thank you. Stand down.




                                                            .............................................
                                                                                       Priestley J