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High Court of New Zealand Decisions |
Last Updated: 24 May 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-004-22385 [2012] NZHC 1034
THE QUEEN
v
REBECCA BERNICE HADDON
Hearing: 15 May 2012
Counsel: K Hogan and J Pridgeon for Crown
N W Benner for Prisoner
Sentence: 15 May 2012
SENTENCING NOTES OF GENDALL J
Solicitors:
Crown Solicitor, Auckland
Nona W Benner, Auckland
R v HADDON HC AK CRI-2011-004-22385 [15 May 2012]
[1] Rebecca Bernice Haddon, you appear for sentence having pleaded guilty to one charge of cultivating cannabis, one charge of possession of cannabis for the purpose of sale and one charge of possession of a utensil for the consumption of cannabis. The District Court at Auckland declined jurisdiction to sentence you on
15 March 2012, so consequently you appear before me today for sentence.
[2] The facts upon which I sentence you, in summary, are as follows. On
14 September 2011, when you and your ex-partner were at a home in the suburb of Hillsborough in Auckland, the Police visited you for an unrelated purpose. They there found a significant cannabis operation in place in the home. In an upstairs room, there were 30 cannabis plants ranging in height from 30 centimetres to
1.5 metres, growing under heating lights. The room was sealed with black plastic and had a sophisticated exhaust and extraction system. Two parcels of cannabis were located on a drying rack in the room which totalled 828 grams.
[3] In the basement of the home, there was a second growing room, also outfitted with sophisticated heating, light equipment, watering system, fertiliser, air filters and an exhaust system, and a total of 121 cannabis plants, ranging from seedlings to one metre in height. Obviously it was intended that the seedlings would grow to their mature height for harvesting.
[4] Apart from those cultivation operations, there was, in a freezer, 2.1 kilograms of frozen cannabis material. The Police also found at the home 60 snaplock plastic bags and one set of electronic scales, items well known to be necessary for those who deal and supply cannabis. There was a modified plastic drink bottle also present and which was used by you to consume cannabis.
[5] Although you have a drug habit, and some of the product was destined for your own use – indeed your counsel submits that you claim that most of it was - clearly the cultivation was for commercial purposes. The Police assessment of the yield of plant, if all was harvested, dried and sold, was between $100,000 and
$305,000. Now such assessments are often just guesses or matters of opinion, and I view it in that light. But this was not an amateur attempt to cultivate, but a significant enterprise by people – that is you and others – who knew exactly what
they were doing and invested significant capital and effort into the operation. The yield must have been in the many thousands of dollars.
[6] You pleaded guilty at an early stage, but your ex-partner has pleaded not guilty and is going to trial. You are a 38 year old single woman, having the care of an 18 year old daughter. Since 1992 you received sickness and domestic purposes benefits, although I gather from the Probation Officer’s pre-sentence report that that is no longer the case. You have a harmful pattern of drug use and the implement for consuming cannabis found in the house was yours.
[7] You have nine previous convictions, but none since 2009 when you breached a sentence of community work. The pre-sentence report notes that you have relocated to an address in Sandringham where you reside with your 18 year old daughter. The Probation Officer says you have had 62 other fine-type offences – that is offences which have resulted in fines - which were converted into a sentence of community work because you did not pay the fines. But that was not completed and the officer says you may have an entrenched offending attitude. Nevertheless, in view of the officer’s assessment that your risk of further offending is low, a sentence of home detention is recommended. As I observed to your counsel, such cannot be imposed unless there would otherwise have been an indicative short-term sentence that is 24 months or less.
[8] For the purpose of sentencing, I am required to recognise that the nature of your criminal conduct must be denounced and that an important purpose is to deter you and others from offending which, because of its extent, is quite serious. I have to take into account the seriousness or the gravity of your offending when compared to other types of cannabis cultivation and possession for sale offences, and also the desirability that there was some consistency in sentences. I must also take into account the need to impose upon you the least restrictive outcome that is appropriate, and these are all matters which I keep in mind.
[9] Counsel are agreed that the first step in the sentencing process is to fix a starting point. Now sentencing is not a mathematical or arithmetic exercise. Some courts and judges approach it that way, but it is not. There has to be, however, some
process that you and the community can understand, and it is not just simply a task or a case of grabbing a sentence out of the air.
[10] For cannabis cultivation and supply, the Court of Appeal in R v Terewi has provided some guidance by fixing three different categories.[1] Category one involves cultivation of a small number of plants for personal use, sharing with your friends, or supply on a non-commercial basis. You do not qualify for inclusion in that category. Category two relates to small-scale cultivation for a commercial purpose aimed at deriving a profit. The starting point there is generally between two and four years
imprisonment. Category three relates to serious offending involving large-scale commercial growing, usually with considerable sophistication. Starting points in excess of four years’ imprisonment are recommended.
[11] Now the categories are not rigid and they are only guidelines, and in any particular a sentencing judge may go outside that. But yours is not such a case, nor do either counsel so contend. Both agree that you fall within category two, although the Crown says it is at the very top end, that is around a three and a half to four year starting point, whereas your counsel says it is at the very bottom end. I simply add that no distinction is made between the sale and the cultivation of cannabis for the
purpose of sentencing – see R v Grey.[2]
[12] As I said, the Crown submitted your offending is on a significant commercial scale involving planning and preparation, with a starting point falling at the higher end of category two or lower end of the top category – that is in the range of three and a half to four years. The Crown says you cannot claim to be of good character because of your other convictions, but does not suggest that there should be any uplift, that is increase in the starting point, because of those features. The only mitigating feature, the Crown says, is your guilty plea. By mitigating, I mean reducing the sentence from the starting point. The evidence against you appears strong, and to maintain a defence would have been futile. But you are entitled to
credit for the guilty plea, and at the stage at which it was entered.
[13] On the basis of the Crown’s minimum starting point, that is three and a half years, and allowing a discount of, say, 25 per cent, without any other concessions or discounting factors, would have led to a sentence in the range of two years seven months’ imprisonment and home detention would not be available. The Crown has submitted that even if there was an indicative sentence of less than two years, it would still oppose a sentence of home detention because of your breach of community work in 2009 and the manner in which your ability to comply with a sentence of home detention is comprised, that is by your drug habit.
[14] On your behalf, counsel has submitted that a starting point in the region of two to years was appropriate; that the initial operation was commenced so that you could grow cannabis for your own use for a medical condition; and that you have supplied only to yourself and to friends and have not been involved in any significant commercial way. She has submitted that you contend the large amount in the freezer was for home baking in the sense of cooking for cakes. I think the more probable inference is that there is indeed home baking, but it was for the making of cannabis oil. But in any event, the plea of guilty is on the basis that you were involved in a significant cultivation operation for the purpose of sale and supply, as well as for your own use.
[15] In determining what should be an appropriate starting point, I have looked at a number of cases. But it is important that the Court keeps in mind that every case is dependent upon its own unique circumstances of the offending and of the offender. But some consistency in sentencing is also needed. But some examples, and they are only these:
(a) In the Court of Appeal decision of R v Broughton where an offender had 50 plants cultivating, 24 seedlings, 250 grams of dried leaf, with a value of approximately $130,000, the Court held that a starting point of four years was within the available range.[3] Now you were cultivating 151 plants and seedlings and had 2.928 kilograms of plant
harvested (that is, the plant being dried plus the frozen plant).
(b) Likewise, in R v Butler the Court of Appeal said a starting point of three and a half to four years’ imprisonment was appropriate and upheld where there was a sophisticated growing operation taking place in the appellant’s home. Two wardrobes had been set up with fans and heat lamps and a total of 106 plants (that is seedlings and larger plants) were growing and cannabis located had a potential value
of approximately $150,000.[4]
(c) In the High Court in a somewhat similar case to yours, R v Reti, Justice Simon France took a starting point of three and a half years’ imprisonment.[5]
(d) When I came to sentence an offender in R v Wallace, I adopted a starting point of three years’ imprisonment for offending which involved a sophisticated growing operation in Mr Wallace’s home, three distinct rooms containing 139 plants in total, timing systems, extractor fans, other equipment and you know what that sort of
equipment is.[6]
[16] They are but examples. I think you could well fall into the upper range of category two of Terewi so as to justify a starting point of three and a half years. But I propose to fix it at a very minimum and lenient level in view of the authorities, and fix it at three years’ imprisonment.
[17] The next factor in determining what the ultimate sentence is, is to look at aggravating and mitigating personal circumstances. You cannot call in aid a blemish-free history or background. Your previous convictions are not particularly serious, but you are not entitled to a discount for good character.
[18] As to mitigating personal factors, those are factors which would lessen the sentence, you are a mature 38 year old woman, unemployed with one teenage child
but no suggestion of young dependants.
[19] Just as I do not uplift the starting point because of convictions by treating them as aggravating, I cannot find mitigating personal circumstances which would justify a reduction for that reason alone. You are entitled to a proper discount for your guilty plea and in terms of the Supreme Court decision in R v Hessell,[7] I would fix that at the maximum available, namely 25 per cent.
[20] Applying that process, that leads, however, only to an indicative sentence of two years three months’ imprisonment. That means you are not eligible for a sentence of home detention, unless I can somehow reduce that indicative sentence through applying either appropriate mitigating personal circumstances or undue mercy.
[21] As I have said, I do not find that you have mitigating personal circumstances. Whilst your drug abuse was a contributing factor to your offending, you nevertheless display an attitude towards the offending which minimises its seriousness, and those are matters of concern. Even if I were able to reach the conclusion that an indicative sentence of less than 24 months was appropriate, I would not have been persuaded that you should be sentenced to home detention.
[22] As a consequence, I sentence you on the charges of cultivation of cannabis, and of possession of cannabis for sale to concurrent terms of two years three months’ imprisonment. On the charge of possession of utensils for the consumption of cannabis, you are sentence to one month’s imprisonment which is concurrent.
[23] There will be an order for destruction of the cannabis plants, the bottle, all equipment seized and used in the cultivate exercise.
J W Gendall J
[1] R v
Terewi [1999] 3 NZLR
62.
[2] R v
Grey [2008] NZCA 224.
[3] R v Broughton
CA18/05, 9 June
2005.
[4] R v
Butler CA221/04, 4 October
2004.
[5]
R v Reti HC Wellington CRI-2004-091-2330, 15 October
2004.
[6] R
v Wallace HC Whangarei CRI-2009-027-3138, 18 March 2010.
[7] R v Hessell [2011] 1 NZLR 607 (SC).
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