R v Te Ture [2012] NZHC 1409 (20 June 2012)

Last Updated: 3 July 2012

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2011-010-000412 [2012] NZHC 1409

THE QUEEN

v

_{MORGAN TE TURE}

Hearing: 20 June 2012

Counsel: E C Killeen for Crown

R B Philip for Prisoner

Sentence: 20 June 2012

_{NOTES ON SENTENCING OF COLLINS J}

Introduction

[1] Mr Te Ture, you appear for sentencing today having pleaded guilty to one charge of cultivation of cannabis.[1] This charge carries a maximum penalty of seven years’ imprisonment.

[2] You are here in the High Court for sentencing because on 16 March 2012 the District Court declined jurisdiction to sentence you because of the two years’ imprisonment limit that can be imposed by the District Court for offending of this

_kind.

R V TE TURE HC PMN CRI-2011-010-000412 [20 June 2012]

Circumstances of offending

[3] On 1 November 2011, the Police executed a search warrant at your address. Both you and your son were present at your address at that time. On arrival, the police noted that a door to a room within the house and the door of an adjoining shed were secured with padlocks. You supplied keys to the police that opened both these locks.

[4] In this room and shed, the police found 301 cannabis plants of varying maturity. In the first room, the police found 26 cannabis plants that were between

400mm and 700mm in height. They also located dried cannabis material that was hanging from the ceiling, and cannabis material on a bench.

[5] In the second room, there were three one metre high cannabis plants,

75 cannabis seedlings 20 cm tall, and 197 cannabis seedlings 10cm tall.

[6] In one of the bedrooms at the address, the police found two bags of cannabis. In the lounge, they located a small bag of cannabis and spotting knives. In the kitchen, they found a bag containing cannabis material and stalks. Finally, in the laundry hot water cylinder cupboard, the police located a roll of black polythene and a container of potting mix with cannabis stalks.

[7] The cannabis plants were growing under growing lamps with irrigation supplied to the plants through soak trays. They were growing in buckets and plastic planter bags. The photographs of the facility you created show an operation that had a degree of sophistication.

[8] At the address, the police located three lighting units, two fans, six electrical transformers, 42 buckets, two timers, 20 multiplug boxes, a pair of loppers, fertiliser containers with liquid fertiliser, hormone rooting gel, hormone gel, spraying oil, a small bag of granulated fertiliser, a heat lamp, scales, a watering can and drying strings.

[9] When the police spoke to you at the address, you admitted the plants were yours. Later on you explained your growing operation to the police. You said that the room within the house was the nursery where you cloned from mother plants, and the shed contained the plants that had reached maturity. You claimed that you grew the plants for your own use.

Circumstances of the offender

[10] I turn now to your personal circumstances. You are 38 years old and you are a solo parent to your only son, aged 19 years old. Your son lived with you until he moved out recently. Your partner of four years stays with you on a regular basis.

[11] You have 14 previous convictions. Most relevantly for the purposes of your sentencing today, you have three previous cannabis-related convictions; two for possession of cannabis from 1995 and 1997 respectively, and one for cultivation of cannabis from 1995. You received fines for the 1995 offending, and a sentence of community work for the 1997 offending.

[12] You are employed as a shearer by your father, who is a local shearing contractor. It is seasonal work and it is reliant on the weather. You told the pre- sentence report writer that you started growing cannabis because you smoked it twice a week and got sick of paying for it. You said that you had planted the cannabis for your own use but that you were “remorseful” and that you would never do it again.

[13] You were assessed as having a low risk of re-offending.

Purposes and principles

[14] In sentencing you today, I have to first determine what is called the starting point sentence. That is the sentence that is appropriate having regard to the nature of your offending or what you did.

[15] I then have to consider aggravating or mitigating factors personal to you which might increase or decrease your sentence from the starting point.

[16] Finally, I have to take into account your guilty plea, as the last step in this sentencing process.

[17] In sentencing you, I am required to take into account the purposes and principles of sentencing set out in the Sentencing Act 2002. I consider these to be holding you accountable for your offending, denunciating your offending, deterring you and others from such offending and ensuring your rehabilitation. I now turn to the starting point.

Starting Point

[18] In setting the starting point for cannabis offending, guidance is provided by the Court of Appeal’s decision in R v Terewi.[2] As the Crown and your defence counsel agree, your offending falls within category two. Cannabis cultivation offending falls within category two if it is small-scale cultivation for a commercial purpose. Although you claim that the cannabis was for your personal use, the amount of cannabis located at your premises and the electronic scales indicate that there was an element of commerciality in your offending. It has been held that any offending with a commercial element, no matter how small, should attract a starting point of between two and four years’ imprisonment.[3]

[19] Crown counsel submits that taking into account the large number of cannabis plants (301 in total), the sophistication and planning of the operation (two growing areas with fairly sophisticated equipment) and the commerciality of the offending, an appropriate starting point is between three and three and a half years imprisonment.

[20] On your behalf, Mr Philip submits that an appropriate starting point is between two years and 9 months imprisonment, and three years’ imprisonment. In

_{support of this submission, your counsel says that the level of sophistication of the}

operation was “modest”; that none of the plants were flowering at the time of the search and that there is little evidence of commercial gain on your behalf.

[21] In determining what should be an appropriate starting point, I have looked at a number of cases. Some examples are R v Haddon,[4] R v Warren,[5] R v Wallace[6] and R v Cooper.[7]

[22] While your offending had a commercial element, it appears to be only small. Your set up was not as sophisticated as discussed in some of the cases referred to above. In addition, as your counsel pointed out, there was no evidence of the potential yield of your crop. But it appears that most of the plants were seedlings and very few plants were at maturity, thus affecting the potential yield. Taking into account all these factors, I adopt a starting point of three years’ imprisonment.

Aggravating and mitigating factors

[23] I turn now to the factors personal to you.

[24] As noted above, you have three previous convictions for cannabis-related offending. But these occurred a long time ago, and therefore do not warrant an uplift in your sentence.

[25] The only mitigating factor is your guilty plea, which you entered at the first reasonable opportunity. In my assessment you are entitled to a discount of 25 per cent for your guilty plea.

_{[26] This leaves an end sentence of two years and three months’ imprisonment.}

Sentence

[27] Mr Te Ture you are sentenced to imprisonment for a period of two years and three months.

[28] An order is made for the destruction of the cannabis, fertiliser and growing equipment obtained during the search of your address.

_{[29] Thank you. You may stand down.}

_{D B Collins J}

Solicitors:

Crown Solicitor, Palmerston North

Bate Hallett, Hastings for Prisoner

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[1] _{Misuse of Drugs Act 1975, s 9(1).}
[2] _{R v Terewi [1993] 3 NZLR 62 (CA).}
[3] R v Andrews [2000] 2 NZLR 205 (CA).
[4] _{R v Haddon [2012] NZHC 1034.}
[5] _{R v Warren HC Hamilton CRI-2011-073-184, 13 September 2011.}
[6] _{R v Wallace HC Whangarei CRI-2009-027-3138, 18 March 2010.}
[7] R v Cooper HC Auckland CRI-2007-044-1261, 15 July 2008.