R v Pawa-Buckton HC Rotorua CRI-2010-063-5826 [2011] NZHC 193 (9 March 2011)

Last Updated: 29 May 2011

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

_{CRI-2010-063-5826}

THE QUEEN

v

AARON MICHAEL PAWA-BUCKTON

Hearing: 9 March 2011

Counsel: L Owen for the Crown

M Simpkins for Mr Pawa-Buckton

Judgment: 9 March 2011

_{SENTENCE OF WOODHOUSE J}

Solicitors:

Ms L Owen, Fletcher Pilditch, Office of the Crown Solicitor, Rotorua

Mr M Simpkins, Lance Lawson, Solicitors, Rotorua

R V PAWA-BUCKTON HC ROT CRI-2010-063-5826 9 March 2011

[1] Mr Pawa-Buckton, you can remain seated while I explain the sentence that I

am going to impose.

[2] What I am saying obviously is directed primarily to you, but members of the community who are concerned about these things are entitled also to know why the court imposes sentences so I need to outline matters which you will be very familiar with but others are not.

[3] You are to be sentenced for one offence of cultivation of cannabis and one of theft of electricity valued at less than $500. The maximum penalty for cultivating cannabis is 7 years imprisonment and you should reflect on that.

[4] As I have already made clear, I do not intend to impose a sentence of imprisonment and, having received comprehensive and helpful written submissions from the Crown as well as from your counsel and heard further oral submissions today, the sentence I intend to impose is one of community detention coupled with supervision. I will come back to the details of that in due course.

The facts

[5] I deal first with the facts of the offending.

[6] There was a police search of your home on 30 October 2010. They found cannabis growing in a bedroom. There were 68 healthy cannabis seedlings ranging in height from 15 to 35 centimetres. There was lighting erected over the plants. There was a pedestal fan and an extractor fan to regulate temperature and maintain airflow. There were some fertilisers in the garage, although you have said, I think, that they belonged to the owner of the property. Police also found that you had inserted a piece of wire into the electricity meter box to prevent a reading of power usage.

[7] When spoken to you admitted responsibility for the operation. You said the plans were about three weeks old – meaning, I assume, that the operation had been

underway for about three weeks – and you intended to plant these plants out in the bush when they were bigger. You admitted that you had tampered with the meter. You said that you had cut the meter off about two weeks earlier.

Personal circumstances

[8] Your personal circumstances. You are 22 years old. You have a number of previous convictions but none for offences against the Misuse of Drugs Act. The type of previous offending, generally lower level, suggests you may now be at a point when you need to take a grip on your life. And from the submissions that were made to me, in particular this morning, and from the acknowledgement you gave to me a short while ago, I do believe that you recognise this. You are at a point where you can take advantage of the assistance provided to people, like you, by the state, and you have indicated to me that you recognise that and you will do it, and that is important. And obviously Mr Pawa-Buckton it is important, in your own interests as well as in the interests of the community as a whole.

[9] You have a supportive partner of four years. The probation officer spoke to her and said she considered her to be – and I quote – “a pro-social influence”, and that is important.

[10] The pre-sentence report makes clear that you have had emotional difficulties over a period of time. I do not want to go into that but I recognise it. And I will indicate that the fundamental difficulty in that regard for you has been the tragic loss of your brother, and I recognise that.

[11] The remaining matter, and of some importance in relation to sentencing, is that you do have a problem with the use of cannabis.

[12] You were arrested on 1 November 2010 or thereabouts. You pleaded guilty on 13 December 2010 in the District Court. You were then remanded in custody for sentence in this Court. There was an immediate application for bail, which unfortunately could not be heard until 14 January 2011, and on that date you were granted bail. The result was that you have had a month in custody on remand for

sentence and that is one of the relevant considerations. I would also note that matters relevant to sentence are in the bail judgment of Rodney Hansen J of 14

January 2011.

[13] Before your remand in custody you had a job. Your employer considered you to be a valuable employee and with sufficient ability and reliability to take a position of responsibility on occasions, and that is important. You lost that job when you were remanded in custody. But since you were released on bail you have had the where-with-all to take the initiative yourself and get another job.

Sentence

[14] I come more directly to the sentence. The Court of Appeal in R v Terewi[1] has set guidelines for sentencing based in three categories, the lowest category being category 1. This is a very well known case but I think it may help if I set out what the Court said in relation to category 1, and part of what it said in relation to category 2:

Category 1: consists of the growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence. Where there have been supplies to others [and I interpolate, intended supplies] on a non-commercial basis the monetary penalty will be greater and in more serious cases or for persistent offending a term of periodic detention or even a short prison term may be merited. (It is to be noted in this connection that there is no separate offence in relation to a Class C drug of supplying or possession for supply, as opposed to selling or offering for sale or possession for sale (s 6(1)(e) and (f).)

Category 2: encompassed small-scale cultivation of cannabis plants for a commercial purpose ie with the object of deriving profit. The starting point for sentencing was generally between two and four years, but, where sales were infrequent and of very limited extent, a lower starting point might be justified.

[15] In another case involving cultivation of cannabis, R v Latham,[2] the Court of

Appeal said, in effect, that there is an important distinction between selling cannabis for profit and giving it to others. And that was the important consideration in that

case. What is also clear from Terewi is that there is a marked difference in the seriousness of the offending and, in consequence, the level of penalty or sentence, when plants are grown for personal use; when there is no evidence of sale or evidence of intention to sell for profit.

[16] Ms Owen submitted, for the Crown, that the starting point for sentence should be between 2 and 3 years imprisonment. That is between the bottom and middle of Terewi category 2 and that is, as I have just indicated, if there is small scale commercial cultivation. But in this case there is no evidence of commerciality or intended sale for profit, nor evidence of an intention even to supply others. In the police summary of facts there was simply a mathematical calculation based on 68 mature plants producing an assumed maximum yield multiplied by a street price. The resulting figure, which was somewhere around $600,000, has been reduced substantially in the Crown’s submissions today. But with the greatest of respect, this is not evidence of commerciality when coupled with what else is available as evidence in this case. Calculations of the sort I have just described are, of course, based on conjecture in relation to how many plants will grow to maturity. It is also based on conjecture as to what will then be done with the plants; that is to say, whether they will be used solely for personal use or some of them given to others, or an attempt made to sell some of it. All of that is based on doubtful assumptions if there is nothing else to assist the Court in drawing adverse inferences. In the absence of other evidence this is not evidence justifying an inference of commercial intent.

[17] The other evidence available in this case in fact points the other way. Ms

Owen responsibly acknowledged, in relation to your operation:

(a) The cultivation operation was not the most sophisticated of its kind. (b) The cannabis plants were in the early stages of growth.

(c) The number of seedlings was relatively few in comparison with other cases.

[18] There is no evidence that it was for commercial use. There is the assessment of the probation officer that you have a reasonably marked problem with cannabis use and there is your statement that you planted them for your own use so you could stop buying it.

[19] Mr Simpkins, on your behalf, had submitted that a sentence of community detention is appropriate and, as I have already indicated, I agree. I am not sure whether this has yet been explained to you Mr Pawa-Buckton, but it will be if it has not. Community detention involves a curfew and that is part of the necessary penalty to be imposed on you and also designed to try and assist you. Community detention in this case should be coupled with a sentence of supervision to enable special conditions to be imposed, and those conditions being the ones recommended by the probation officer.

Formal sentence

[20] You should now stand for the formal sentence.

[21] For the offence of cultivation of cannabis you are sentenced to 3 months community detention. In that regard I note that the maximum is 6 months.

[22] You are subject to a curfew between the hours of 7:00 pm and 7:00 am with the curfew to be at 30A Frank Street, Rotorua. The curfew is to commence this Friday, 11 March 2011. In respect of the first four weeks of the curfew, provided adequate proof is provided to the probation officer that your employer requires you to be at work between the hours of 9:00 am and 10:00 pm, then the probation officer will grant leave pursuant to the relevant provision of the Sentencing Act to enable that to occur.

[23] In respect of the community detention you are subject to the standard conditions which apply and to the following special conditions:

(a) During the course of the sentence you are to report as directed by your probation officer to the probation office.

(b) Immediately following sentencing this morning you are to report to

1232 Haupapa Street, Rotorua.

[24] You are further sentenced to supervision for 8 months. The supervision is subject to the following special conditions, and these are most of the conditions that were set out in the probation report:

(a) You are not to possess or consume alcohol or illicit drugs for the duration of the community detention. You are not to consume illicit drugs at all.

(b) To the extent that it is further required, you are to report to a probation officer as directed.

(c) You are to undertake and complete a Tikanga Maori programme, subject to availability, to the satisfaction of the probation officer and the programme provider.

(d) You are to attend and complete an appropriate drug and alcohol programme to the satisfaction of the probation officer and programme provider.

(e) Details of the appropriate programme are to be determined by the probation officer.

(f) You are to attend and complete such counselling or programme or treatment to address identified offending behaviour as may be directed by the probation officer and to the satisfaction of the probation officer and the programme provider.

[25] For the offence of theft of electricity, you are sentenced to two weeks community detention which is to be served in conjunction, that is to say, concurrently, with the other sentence.

[26] There is an order for destruction of the items that were found which relate to the cultivation of cannabis.

[27] Mr Pawa-Buckton, you have been given a chance. It is now up to you to take it and make the most of your life. So good luck with that.

[28] You can stand down.

ADDENDUM

[29] The following is for clarification. It does not form part of the sentencing comments in court.

[30] In [22] above there is reference to work requirements in the first four weeks of the curfew. This followed discussions with both counsel and with the probation officer in court. The sentence commencing “In respect of the first four weeks of the curfew ...” is not part of the formal sentence by the Court but a record of what was discussed.

[31] Paragraph [24] (a) and (b) are amended from what was said in Court. What is now contained in (b) was merged with the statement that Mr Pawa-Buckton is not to consume illicit drugs at all. This resulted in a lack of clarity. The change has not

_{altered the substance.}

Peter Woodhouse J

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[1] _{[1999] 3 NZLR 62 (CA).}
[2] CA467/07, 20 November 2007