R v Didham HC Dunedin CRI-2010-012-5871 [2011] NZHC 1587 (3 August 2011)

Last Updated: 21 November 2011

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

_{CRI-2010-012-5871}

THE QUEEN

v

MAURICE DAVID DIDHAM

Hearing: 3 August 2011

Counsel: RD Smith for the Crown

WH Henderson for the prisoner

Judgment: 3 August 2011

_{SENTENCING NOTES OF RODNEY HANSEN J}

Solicitors: Wilkinson Adams, P O Box 803, Dunedin 9054 for the Crown

WH Henderson, 109 George Street, Dunedin 9058 for the prisoner

R V MAURICE DAVID DIDHAM HC DUN CRI-2010-012-5871 3 August 2011

Introduction

[1] Mr Didham, you appear for sentence on one charge of cultivation of cannabis and one charge of possession of cannabis for supply. You pleaded guilty to those charges in the District Court. You have been committed for sentence to this Court because the District Court Judge thought the appropriate sentence may exceed his jurisdiction.

Agreed facts

[2] The factual background to the charges are as follows. On 23 November

2010, the police executed a search warrant at your home at Bradshaw Street in Dunedin. In a bathroom the police found an indoor cannabis-growing operation. There were 200 female cannabis seedlings growing in soil. They ranged from 10 -

30 cms in height. They appeared to have been growing for about four weeks. There was a light reflector and heat bulb over the plants, activated by automatic timers and heat pads under the plants.

[3] In the lounge the police found 657 grams (23.2 ounces) of dried cannabis head material, along with plastic ziplock bags and tin foil. There was a set of scales in the bedroom. You made frank admissions when spoken to by the police. You told the police you were growing the plants in three-month cycles in different stages so you had a continuous supply. You said you had been growing continuously for two or three years and each crop took 12–14 weeks. You said you harvested the plants before they reached full size and would get approximately $3,000 per cycle from a yield of 10–12 ounces per crop.

[4] You told the police you sold cannabis by the ounce at $300 per ounce. On that basis, the estimated value of the dried cannabis in your possession was $6,900.

Disputed facts

[5] The potential yield and value of the crop is a matter of considerable dispute. The police had estimated that each plant would yield four ounces of the valuable head material when fully grown. At a price of $300 per ounce, that would be $1,200 for each mature plant; 200 plants and the arithmetic is that there was a potential yield of $240,000 from the 200 seedlings in your possession. The police, however, accepted that it would not have been possible for those seedlings to have grown to maturity at your address. The premises were simply not set up for that purpose. Rather, it was in the nature of a nursery.

[6] As I have mentioned, your own advice to the police was very different. It was to the effect that the total yield from that number of plants, in your experience, was some 10–12 ounces and that would have yielded something like $6,000 for the crop. Together with the cannabis material in your possession, your position was that the actual and potential value of the plants and plant material was no more than

$10,000.

[7] For the purpose of finding whose position was correct, it was intended that a disputed facts hearing would take place this morning. However, there have been discussions between counsel, as a result of which it has become unnecessary to proceed with that hearing. That is essentially because the Crown accepts that even if I were to accept that the potential yield was as put forward by the police, the offending would not warrant a starting point for sentencing purposes of any more than three years imprisonment.

[8] Indeed, Mr Smith went further and acknowledged that a starting point towards the lower end of category 2 in R v Terewi[1] - that is, two and a half years – would not be inappropriate. For reasons that I will shortly explain, I consider that concession on the part of the Crown is an appropriate and responsible one.

[9] As I have mentioned, the guideline judgment for sentencing in cannabis offending involving cultivation and supply is a Court of Appeal decision called

Terewi. In cases involving the small scale cultivation of cannabis plants for a commercial purpose, a starting point of two to four years is identified as generally appropriate.

[10] The Court of Appeal’s decision in Terewi encouraged prosecutors to provide evidence of likely revenue and yields. These have tended to result in the wildly varying estimates, which I have been confronted with in this case, and disputed facts hearings are often required to settle these differences.

[11] It is, however, necessary to bear in mind that this is not an area in which precise quantification is achievable. The purpose of the exercise is to make an assessment of the level of commerciality involved. The number of plants involved in any one operation is only one of the indicia of the level of commerciality.

[12] In your case the indications are that you were not involved in a large scale commercial operation. I have already mentioned the fact that the setup in your home was geared only to raising seedlings and could not have been used to grow any significant number of plants to maturity. It would be a matter of speculation as to how you could set about taking those plants to the next level. There is much, in my view, to support a conclusion that you were not generating a significant income from what you were doing. That is indicated by the quantity of cannabis that was actually in your possession.

[13] There has been no suggestion of any conspicuous consumption on your part or of the unexplained accumulation of assets. All the indications are that you were growing the cannabis for the purpose that you said you were, namely, to supplement your superannuation and to enable you to pay off debts that you had accumulated as a result of a small business venture.

Starting point

[14] I have looked at a number of cases, including those referred to by your counsel and the Crown. Perhaps the most authoritative and the closest on the facts is

the Court of Appeal decision of R v Latham[2]. In that case there were more plants and a larger and more sophisticated growing operation that you had, although only a small amount of cannabis for sale. An aggravating feature in that case was the theft of electricity. The Court said that the offending was on the borderline of categories 1 and 2 in Terewi and a starting point of two years was adopted.

[15] By way of examples only, I refer to R v Rauhihi[3] where the offender pleaded guilty to possession of cannabis for supply, cultivation of cannabis and two firearms charges. He had 43 mature cannabis plants with two smaller growing plants in empty pots and cannabis plants indicating a previous harvest. Cannabis material totalling 326 grams (11 ounces) was found. The growing operation was larger and more sophisticated than in your case. A starting point of 15 months was adopted.

[16] Starting points of three years were adopted in three cases on facts which were, in my view, more serious than in your case. One of those is R v Parrott.[4] The others referred to me this morning by Mr Henderson are R v Baird and Riordan[5] and R v Walker.[6] Reference to those cases and to the factual findings which I have earlier referred to, satisfies me that the starting point in your case should be no more than

two years and six months imprisonment.

[17] I come now to consider what should be the final sentence from that starting point.

Mitigating factors

[18] You are a 72-year-old man, currently residing with your sister. At the time of the offending you were living alone in rented accommodation. As a young man you got yourself into trouble. You have previous convictions, some for quite serious offending for which you were sentenced to corrective training. You have said that

_{for twenty years or so you lived in Australia and acknowledged some convictions}

there but you have no convictions in New Zealand since 1966 and you have been living back here for some 14 years. There is no suggestion that your past record is in any way an aggravating factor.

[19] As I have said, you have explained that you grew cannabis to supplement your pension because you were under financial pressure. You had a lawn mowing business between 2007 to 2009 but had to give it up because it aggravated arthritis which you suffer from in your hip. As I mentioned, you told the probation officer that you had grown the cannabis to pay off a debt from that business as well as to cover the costs of living. I understand that your arthritis can be extremely painful and requires the use of a walking stick. You are also taking heart medication. Apart from that, you keep general good health. You have been assessed as at low risk of reoffending.

[20] For the purpose of sentence, it is appropriate to make some allowance for your age and the health issues which you have. There is no question that any form of custodial sentence will involve a greater imposition on someone in your position than on a younger fit healthy man. I consider that, on that basis, it is appropriate to reduce the sentence from two years six months to one of two years.

[21] You are entitled to a discount for your cooperation with the police and your guilty plea. You entered a plea of guilty at an early stage. The delay in sentencing has been occasioned by the issues which have arisen over the facts, as well as the committal to this Court. I am quite clear that you were perfectly within your rights to take issue with the factual assertions made by the Crown as to the yield and potential value of your crop. I consider a discount for your guilty plea and cooperation should be 25 per cent, which would bring me to a sentence of 18 months imprisonment.

Home detention

[22] I am required then to consider whether a sentence of home detention is appropriate. While in some cases of this nature a sentence of home detention is not

appropriate, in your case I see no reason why it should not be imposed. As I have said, you are at low risk of reoffending. You have family support available to you.

[23] The report confirms that there is a suitable residence available to you. There is, accordingly, no reason why a sentence of home detention should not be imposed.

[24] Mr Didham, if I can ask you to stand please.

Decision

[25] The sentence that I have determined to impose on you is one of eight months home detention. It will be subject to the following conditions:

(a) You are to proceed directly from the Court following sentencing, to

720 Brighton Road, Ocean View, Dunedin, to await the arrival of the probation officer.

(b) You are to reside at that address in accordance with the conditions of home detention.

(c) You are to attend employment or training programmes only if approved and directed by the probation officer.

(d) You are not to consume alcohol for the duration of your sentence of home detention.

(e) You are to undertake counselling, treatment or programmes as directed by and to the satisfaction of the probation officer to address offending related issues.

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[1] R v Terewi [1999] 3 NZLR 62 (CA).
[2] _{R v Latham [2007] NZCA 552.}
[3] _{R v Rauhihi HC Palmerston North CRI-2008-031-1438.}
[4] _{R v Parrott HC Rotorua CRI-2010-070-4119.}
[5] _{R v Baird and Riordan HC Nelson CRI-2010-042-1994.}
[6] R v Walker HC Rotorua CRI-2010-047-000134.