R v Loretz HC Whangarei CRI-2011-029-153 [2011] NZHC 1035 (9 September 2011)

Last Updated: 1 October 2011

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

_{CRI-2011-029-153}

THE QUEEN

v

EDWARD GEORGE LORETZ

Counsel: M A Jarman-Taylor for Crown

G R Anson for Prisoner

Judgment: 9 September 2011

_{SENTENCING NOTES OF BREWER J}

SOLICITORS/COUNSEL

Marsden Woods Inskip & Smith (Whangarei) for Crown

_{Grant Anson (Kerikeri) for Prisoner}

R V LORETZ HC WHA CRI-2011-029-153 9 September 2011

Introduction

[1] Mr Loretz, you appear for sentence on one charge of cultivation of cannabis (which carries a maximum penalty of seven years’ imprisonment) and one charge of possession of cannabis for supply (which carries a maximum penalty of eight years’ imprisonment).

Facts

[2] On 9 December 2010 the Police searched your home. In a bedroom converted for the purpose they found 649 cannabis plants being grown with the assistance of heat lamps, fans and other equipment.

[3] 49 of the cannabis plants were mature plants. These were described as

“mother plants” and their purpose was to provide cloning material. The remaining

600 plants were clones which were of a small size described as “seedlings”.[1]

[4] When you were arrested on 7 February 2011 you admitted that the plants were yours. Your explanation was that you sold the plants as seedlings to growers throughout the Northland district. Your purpose was to earn money for your family. In essence, you were a cannabis plant nurseryman rather than a dealer growing plants to maturity for harvest and for sale of the harvested product.

[5] You told the Police that the seedlings were worth $10 each so that the total value was in the order of $6,000. The Crown’s contention is that cannabis clones typically sell from between $15 and $20 and so this places the commercial value of the seedlings between $9,000 and $12,000.

[6] You have heard me discuss with the lawyers this morning whether the difference between your valuation and the Crown’s valuation would make a material difference to how I should sentence you. I had that discussion because the law requires me, if there is a dispute of facts, to indicate how material I think the matter

in dispute is to sentencing and then to hold a separate hearing to resolve the matter if that is necessary.

[7] In this case both the lawyers and I agree that the difference in valuation is not material to the task that I have to undertake. On that basis neither lawyer seeks a disputed facts hearing.

[8] You pleaded guilty to the charges at the first available opportunity, namely

3 March 2011.

Purposes and principles of sentencing

[9] Sentencing you today will involve a two-step process. The first step is to look at your offending to see where it fits into the range of sentences which have been established by the Courts for this kind of offending. This will result in a starting point from which I will then go on to assess your final sentence.

[10] The second part of the process is to see how the starting point should be adjusted up or down to take into account your personal circumstances. That will result in a calculation of a term of imprisonment.

(a) First step

[11] The first step is to assess where your offending falls within the range of offending of a similar type. As the lawyers have said, the case that sets this out is R v Terewi.[2] Category 2 of that case involves small scale cultivation of cannabis plants for a commercial purpose. A starting point in a range of two to four years’ imprisonment is generally appropriate, but a lower starting point may be taken if sales are infrequent and of a limited extent.

[12] In your case, I proceed on the basis that you had been in Kaitaia for only about one year and so this was a new operation. There is no evidence that you had yet sold any of the seedlings, no large amount of cash was found, and your living

circumstances do not imply access to large amounts of cash. Therefore, I will sentence you on the basis that this was a category 2 cultivation for a commercial purpose and that your possession of the 600 seedlings, although for supply, was not part of an established business.

[13] The Crown has submitted that I should take a starting point for you of two to four years’ imprisonment. The Crown says that I should take particular account of your role as a cannabis nurseryman. Your intention, and ability, was to grow and sell large numbers of cannabis seedlings which could be grown by others into fully producing plants. This, the Crown submits, would help to perpetuate and make worse the harm done by cannabis to our society.

[14] Mr Anson on your behalf has submitted that I should take a starting point in the middle of band 2; in other words, a starting point of two to three years’ imprisonment.

[15] I have given your case some careful thought. It is not like the great majority of cases where the offender is cultivating cannabis with the intention of profiting directly from its harvest. On the one hand, your purpose in cultivating the seedlings reduces your culpability because you were not looking to make the large sums which can come from selling the harvest of such a large number of plants. On the other hand, your purpose in cultivating the cannabis and establishing your supply operation was to make large numbers of cannabis plants available to growers throughout the Northland district. That is not a benign purpose and I take it as an aggravating factor, although not as aggravating had you been looking to make for yourself the profits to be gained from harvesting mature plants. I also take into account that you had not yet begun to profit from your enterprise.

[16] I have looked at other cases, which I will refer to in the written record of this sentence, but they are only of general assistance in the circumstances.[3] In the end,

and having regard to the totality principle, I take a starting point of three years’

imprisonment.

(b) Second step

[17] I now come to look at your personal factors. You are 39 years of age. You are married and you and your wife share the parenting of two young children aged nine and 10 years. You have been attending North Tec since 6 February 2011 from Mondays to Thursdays between the hours of 9 am and 3 pm. You are studying carpentry and hope that in the future this will help you to earn an honest living. You have been receiving a student allowance.

[18] I have received and read the references from your whanau. They give an account of a warm and caring man who wants to do the best for his family. You have also supplied me with documentary confirmation from North Tec as to your commendable progress in the carpentry course. I take those things into account.

[19] However, the pre-sentence report puts you at a medium risk of reoffending, and I have heard nothing in the course of sentencing which would cause me to disagree with the assessment. The pre-sentence report makes no mention of remorse and, given your background and your commercial intent in growing the cannabis, it would be hypocritical of you to express any. You were, after all, establishing a significant commercial cannabis supply operation in the very home which you share with your wife and two children.

[20] You have been offending for most of your life. Your record commences in

1987 when you were 14 years old and continues to 2007. You have 37 previous convictions. So far as drugs are concerned, you have convictions for the possession of cannabis in 1989, 1996 and 2002. In 2001 you were convicted of possession of cannabis for the purpose of supply and in 2002 of possession of cannabis for the purpose of supply and also selling cannabis. The rest of your convictions are for driving, dishonesty and breaches of community sentences.

[21] Of these convictions, I think that only the 2001 and 2002 cannabis dealing charges are relevant. Although they occurred eight and nine years before the current offending, I am not going to pass them over. I have, however, decided to reduce the uplift I would otherwise have given based on the material which has been put before me on behalf of your whanau and on behalf of North Tec. I therefore impose a modest uplift of three months.

[22] I cannot make any adjustment downwards to reflect your personal circumstances. However, you did enter your guilty pleas at the first available opportunity and I am satisfied that you should have the full discount of 25% from the final starting point of three years three months’ imprisonment because of that.

[23] Accordingly, I reach a final term of imprisonment of two years and five months.

Home detention

[24] You have been assessed as being suitable for home detention but your end sentence, being greater than two years’ imprisonment, means that you are not eligible for home detention.

Sentence

[25] Accordingly, I sentence you to a term of imprisonment of two years and five months on each of the charges, with those terms to be concurrent with each other.

_{Stand down.}

Brewer J

---

[1] A term I will also use although, by definition, clones are not seedlings.

[2] R v Terewi [1999] 3 NZLR 62 (CA).

[3] R v Yates HC Whangarei CRI-2009-029-1305, 22 April 2010, White J; R v Kunac HC Rotorua

CRI-2010-069-601, 15 July 2010, Venning J; R v Fox HC Gisborne CRI-2005-065-117,

13 December 2005, Cooper J; R v Young HC Whangarei CRI-2008-029-555, 4 February 2009, Priestley J.