COBB V POLICE HC DUN CRI 2008-412-000047 [2009] NZHC 89 (11 February 2009)

IN THE HIGH COURT OF NEW ZEALAND
DUNEDIN REGISTRY
                                                                CRI 2008-412-000047
                                                                CRI 2008-412-000048



                          LAWRENCE ANDREW
COBB
                                 Appellant



                                            v



                            
          POLICE
                                      Respondent



Hearing:       11 February 2009

Counsel:       M Newell for
Appellant
               R D Smith for Respondent

Judgment:      11 February 2009


                           JUDGMENT OF FOGARTY
J



[1]    The appellant was convicted and sentenced after pleading guilty to one
charge of cultivation of cannabis and re-sentenced
on an earlier charge of cultivation
of cannabis on an application by Community Probation to cancel an existing
sentence of community
detention originally imposed.


[2]    On the original sentence that was imposed of community detention and
supervision the District
Court Judge, Judge O'Driscoll, cancelled those two
sentences and imposed two months imprisonment.              On the latter charge
of
cultivation of cannabis, after taking into account the plea of guilty and other matters,
the Judge imposed a sentence of 18 months.
He made the two sentences cumulative,

COBB V POLICE HC DUN CRI 2008-412-000047 11 February 2009

reaching a total sentence of 20
months imprisonment.         He imposed standard and
special conditions of release and a special condition that the appellant undertake
any
counselling and treatment as recommended by the probation officer, including
residential treatment, to deal with any drug or
alcohol issues.


[3]    This is an appeal against that sentence. Essentially the argument is that the
sentence is excessive. This
being an appeal against sentence, it is necessary for the
appellant to persuade this Court either that the learned sentencing Judge
erred in
some aspect of principle, which might include the principle of consistent sentences
for like offences around the country,
or that the sentence is manifestly excessive.


[4]    The first offending involved the cultivation of mature cannabis plants and
18 seedlings being grown indoors. The sentencing Judge on that occasion treated the
appellant relatively leniently and part of this
is that the appellant does have a chronic
pain problem due to a degenerative condition of his back and he has developed a
dependence
on cannabis.      It would appear that the sentencing Judge accepted the
cultivation was not for commercial purposes. What happened
then though was,
almost immediately, if not immediately, the appellant went back to cultivating
cannabis. The second offence involved
the cultivation of 56 plants grown in various
locations around the appellant's property, a further six plants in the basement and
a
further 50 seedlings elsewhere.


[5]    When this matter came before Judge O'Driscoll he was quite plainly
impressed by the apparent
disregard for the previous Court process and sentencing
and he also took into account an earlier conviction for cultivation of cannabis
in
February 2005.     He considered an aggravating feature that the latter offending
occurred when the appellant was subject to community
detention and that the
offending clearly involved planning, premeditation and so a high degree of
culpability. Although he did not
particularly identify it, the background as well is
that this offending was in a home also occupied by the appellant's 16 year old
daughter.

[6]     The Judge selected a sentence taking into account what he saw as the
aggravating features and the challenge to
the integrity of the earlier sentence of
community detention and decided that a sentence of imprisonment was inevitable.


[7]  
  Mr Newell, who appears for the appellant, does not argue against the
inevitability of a prison sentence in the light of these facts.
He rather argues that the
sentence of 18 months on the second charge was far too high and suggested that a
more appropriate sentence might have been in the order
of 12 months.


[8]     The difficulty with Mr Newell's argument is that when one looks at the case
law, although Judge O'Driscoll's
sentence is quite stern, as the Crown has
acknowledged, there have been other stern sentences and an instance of that is the
decision
of R v McGoon High Court Palmerston North CRI 200-015-666
1 June 2006, Ronald Young J, where McGoon, who was addicted to cannabis
and
was growing a large number of plants in his home indoors, similar mode of
premeditated growing as here, received a sentence,
after a discount for a plea of
guilty, of one year four months, in other words 16 months in that case as compared
to 18 months in
this matter.


[9]     Mr Newell ultimately fell back, and I think quite appropriately, on whether or
not Judge O'Driscoll had taken
into account the totality principle, and asked whether
or not a sentence of 20 months in this instance was caught by that principle.
He did
not do so expressly. But, in my view, although this sentence is stern it still fits
within the limits imposed by the totality
principle. It is within an available range of
a sentencing Judge and there was no manifest error of principle in its construction.


[10]    For these reasons, in my view, the appellant has not made out a case for this
Court to set the sentence aside and accordingly
the appeal is dismissed.




Solicitors:
M Newell, Dunedin, for Appellant
Crown Solicitor, Dunedin, for Respondent