R V BHANA HC WHA CRI 2008-027-3050 [2009] NZHC 869 (22 July 2009)

IN THE HIGH COURT OF NEW ZEALAND
WHANGAREI REGISTRY
                                                  CRI 2008-027-3050



     
                               THE QUEEN



                                            v



                            AARON RICHARD
BHANA



Hearing:       22 July 2009

Appearances: B O'Connor for Crown
             D Blaikie for Bhana

Judgment:      22 July
2009


                     SENTENCING REMARKS OF ALLAN J



Solicitors:
Crown Solicitor Whangarei




R V BHANA HC WHA CRI 2008-027-3050
22 July 2009

[1]    Mr Bhana, you appear for sentencing today, having pleaded guilty to one
charge of selling cannabis, for which
the maximum penalty is eight years
imprisonment, one charge of possession of cannabis for supply, for which the
maximum penalty is
also eight years imprisonment, and one charge of cultivating
cannabis, for which the maximum penalty is seven years imprisonment.


Factual background


[2]    On 18 December 2008 the police searched your residence near Opononi,
having obtained a warrant for
that purpose. During the search, the police discovered
a sophisticated indoor cannabis growing operation in a large room concealed
behind
a camouflaged door off the master bedroom. Equipment in the room included
artificial lighting, electronic timing devices,
light shields, watering systems and
dehumidifiers. The police also located a shotgun.


[3]    Three large tables held some 80 cannabis
plants at various stages of growth
and nearing maturity. There was also a drying room, a number of drying lines and a
dehumidifier
had been set up to help in the drying process. The police found about
one pound of cannabis drying on the lines in this room.


[4]
   In another part of the premises was another plant room. It contained three
large cannabis plants, cuttings from which had been
propagated and used to stock the
main growing room. A large quantity of drug paraphernalia was found in your
bedroom, including pipes,
needles and small plastic bags used to package
methamphetamine, although I am satisfied your involvement with methamphetamine
was
simply that of a user.


[5]    In all, the police found a total of 98 cannabis plants in the concealed room
Twenty-four further
cannabis plants were growing on the rear deck off the master
bedroom.

[6]    By way of explanation to the police you admitted growing
cannabis at this
address over the last four to five years, and that you generally made four to five
selling trips to Auckland each
year. The police report you as having indicated that
you were selling your cannabis at about $4,500 per pound, but you have since
explained that that was the top price achieved, and that sale prices were often a good
deal lower.      You consider that you sold
or exchanged the equivalent of about
$60,000 worth of cannabis over the past five years.         Of this about half was
exchanged
for methamphetamine, and the other half was sold for cash, generally
used to purchase methamphetamine.


[7]    Underpinning your
cannabis activities was your methamphetamine habit. In
essence, the cannabis business existed in order to generate funds with which
to
purchase methamphetamine for your own consumption. You indicated to Mr Blaikie
that during a period of 18 months when you managed
to avoid using
methamphetamine, you discontinued your cannabis growing activities altogether.


Pre-sentence report


[8]    You
are 39 years of age, married with two daughters. You were born and
raised in Auckland and have a good relationship with your parents
and three siblings.
You left school at the age of 15, and subsequently gained qualifications in
horticulture and elementary construction.
You have worked for your parents who
operate a tree-felling business in Northland, and previously worked for the
Department of Conservation.
         You intend to start your own business and have
completed part of a small business administration qualification. I mention
all of
these factors because it is apparent you are a man of some ability who has the
potential to turn his life around.


[9]    Through the pre-sentence report writer
and your counsel you have expressed
genuine remorse for your behaviour, and offer apologies to the Court and to your
family. As you
acknowledge, this offending stems from your own heavy drug use.
There is no doubt that you would benefit from a drug education programme
adapted
to your needs.

[10]   You have just one previous conviction, which is minor and of some antiquity.
I discount it for present
purposes.


Purposes and principles of sentencing


[11]   I am required to take into account the provisions of ss 7 and 8 of the
Sentencing Act, and in particular, there must be an element of accountability in any
penalty imposed, which must also reflect a requirement
to denounce and deter.
Having said that, the Court is bound to assist in your rehabilitation and re-integration
into the community
as best it can, and to impose the least restrictive outcome that is
appropriate in all the circumstances.


Tariff case


[12]  
Sentencing for the cultivation of cannabis is governed by the guideline
decision of the Court of Appeal in R v Terewi  [1999] 3 NZLR 62, which applies by
extension to cannabis sales as well as cultivation. Terewi sets out three broad
categories of cannabis offending.
Category 2, which calls for a starting point of
between two and four years imprisonment, involves small scale cultivation of
cannabis
plants for a commercial purpose for profit. Category 3 covers the most
serious offending, involving large scale commercial growing,
usually with a
considerable degree of sophistication and organisation. A higher starting point is
required for a category 3 case.


Counsels' submissions


[13]   Ms O'Connor for the Crown submits that this case falls within the upper end
of category 2 or the
lower end of category 3 of Terewi.           On the other hand,
Mr Blaikie places it below the middle of band 2 and says that once
mitigating
features are recognised by an appropriate discount, home detention becomes a factor
for the Court's consideration.

Discussion


[14]   Although sentencing in this area is not usually assisted by reference to other
cases, I propose to refer to two Court of
Appeal authorities by way of general
comparison.    In R v Broughton CA18/05 9 June 2005, the appellant had been
sentenced to three
years six months imprisonment for cultivating cannabis,
possession of cannabis for supply and possession of equipment for cultivation
of
cannabis. The police found 50 cannabis plants growing under lights, 24 seedlings,
and 250g of dried leaf. The Judge considered
the offending to be at the top end of
category 2 of Terewi and adopted a starting point of four years on the cultivation
charge,
allowing a six month credit for a guilty plea and other mitigating factors.
The Court of Appeal considered the sentence to have been
within range and
dismissed the appeal.


[15]   In R v Collings  [2008] NZCA 30 the appellant had been convicted following
a trial on two counts of cultivation of cannabis, two counts of possession of cannabis
for supply and one of possession of equipment for cultivating cannabis. A police
search revealed 252g of cannabis within the house,
and 1.96 kg in a vehicle. At the
rear of the house was a water tank containing two cannabis plants, and a shed used to
cultivate
cannabis indoors. Leading from the house was a track to a swamp where
42 cannabis plants were found. Again, that offending was placed
at the high end of
category 2 of Terewi. A sentence of three years six months imprisonment was
upheld on appeal.


[16]   As in those
cases, I consider this present case to fall above the middle of
category 2 of Terewi. The cannabis growing operation conducted by
you in a
concealed room was sophisticated and plainly commercial. The equipment found in
the growing room must necessarily have entailed
very significant capital expenditure
which could be justified only in the expectation of a considerable ongoing financial
return.
Your admission that these activities had continued for four or five years is
consistent with the discovery of numerous plants at
different stages of maturity, and
of mother plants used as a source of cuttings for further crops.

[17]   Having said that, I have
listened carefully to Mr Blaikie's submissions today
which have focused on what the Court of Appeal said at [11] of Terewi and reflected
upon the financial guidelines set out there in respect of category 3 offending. This
case falls very significantly short of category
3 judged purely by financial
parameters, so I am satisfied it can be placed no higher than just above the middle of
category 2.


[18]   In my view an operation on this scale requires a starting point of three years
three months imprisonment, but there are several
mitigating factors. There is of
course your guilty plea, for which I deduct one-third or 13 months. There are also
your expression
of remorse and your determination to put this offending behind you.
I accept you are truly genuine in that. I take into account also
your previous good
record, and the steps you have already taken by way of rehabilitation. I allow a
further discount of two months
for those additional mitigating factors. All of these
factors are recognised by a total deduction of 15 months, so producing a sentence
of
two years imprisonment.


[19]   As Mr Blaikie submits, that leaves the Court in a position in which it must
consider a sentence
of home detention as an alternative to a sentence of
imprisonment. Largely for those mitigating reasons I have discussed, I am satisfied
it is appropriate to impose a sentence of home detention. I consider you fall within
the criteria described in R v Hill  [2008] 2 NZLR 381, the leading Court of Appeal
authority on the sentence of home detention. I impose that sentence because I have a
degree of confidence
that the prospects for rehabilitation, which appear to be
positive, will be underpinned first of all by your personal qualities and
determination
to turn your life around, and the fact you have, as is plain to be seen in Court today, a
large family network to support
you.


[20]   The sentence of home detention must be for the term of 12 months, which
recognises the sentence of two years imprisonment
which it would otherwise have
been proper to impose.


[21]   I impose the following conditions:

       a)     Forthwith upon your
release from Court today, you are to report to a
              probation officer at the Probation Office in Bank Street.


     
 b)     When instructed to do so by the probation officer, you are to travel
              directly to the proposed home detention
address at 342B Waipapa
              Road, Waipapa, Kerikeri. In the course of that journey you are not to
              make any
unnecessary stops.


       c)     You are to remain at the address to await the arrival of a supervising
              probation
officer and a security officer.


       d)     You must reside at the home detention address and not move from
              that
address without the prior written approval of the probation
              officer.


       e)     You are not to possess or consume
alcohol or illicit drugs for the
              duration of the sentence.


       f)     You must participate in and complete an
alcohol and drug education
              programme to the satisfaction of the facilitator and/or the probation
              officer.


       g)     You must participate in and complete any other such counselling
              and/or treatment as is designed to
reduce your risk of re-offending.


[22]   There will be three post-detention conditions:


       a)     You are to complete any
incomplete programmes commenced whilst
              on home detention;


       b)     You are to participate in and complete any
other such counselling
              and/or treatment designed to reduce your risk of re-offending, which
              may include
revisiting previously attended programmes, as directed
              by the probation officer.

       c)      You are to further
abstain from the consumption of alcohol and/or
               illicit drugs until you are no longer subject to post-detention
  
            conditions.


[23]   Mr Bhana, you must understand that you have been right on the cusp of
receiving a sentence of imprisonment.
To some degree I have been persuaded by
Mr Blaikie's submissions that this is a proper case in which you should be sentenced
to home
detention instead.


[24]   Your future lies in your own hands. The first step is to ensure you serve your
sentence of home detention
to the letter, that you abide by the conditions and you
cause no further difficulty. After that, your future is for you.




C J
Allan J