R v Walters [2012] NZHC 1750 (17 July 2012)

Last Updated: 24 July 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-000882 [2012] NZHC 1750

THE QUEEN

v

MATHEW NEIHANA WALTERS

Hearing: 17 July 2012

Counsel: M R Walker for the Crown

S W Walker for the Prisoner

Judgment: 17 July 2012

_{SENTENCING NOTES OF RODNEY HANSEN J}

Solicitors: Meredith Connell P O Box 2213 Shortland Street Auckland 1140 (DX CP24063) for the

Crown

Ministry of Justice (Public Defence Service) P O Box 76715 Manukau City Manukau

_{2241 for the Prisoner}

R V MATHEW NEIHANA WALTERS HC AK CRI-2012-092-000882 [17 July 2012]

Introduction

[1] Mr Walters, you appear for sentence, having pleaded guilty to a charge of possession of cannabis for supply, and one charge of failing to appear at the Manukau District Court.

[2] Judge Treston in the Manukau District Court declined jurisdiction to sentence you, and you were remanded to this Court.

[3] When you came before Toogood J on 1 June 2012, he adjourned sentencing so that further enquiries could be made as to the availability of a community-based sentence. For that purpose, as you know, I have been provided with a report as to the suitability of your home for a sentence of home detention. Before I talk about that, I just need to outline the factual basis on which you will be sentenced.

Facts

[4] In the early hours of the morning on 1 December 2011, the Police were called to your home at Manukau to investigate a burglary. Three intruders were found inside the house and were removed. During their search of the house, the Police found that the garage had been set up to cultivate and harvest cannabis. It was lined with polythene; the window was blacked out; there was an extractor fan and two large heat pumps, as well as other apparatus and materials for the cultivation of cannabis.

[5] The Police found cannabis plants drying on a rack suspended from the roof. There were 180 stalks, or buds of cannabis, ranging from 150 to 400 millimetres in length and weighing, in total, 477 grams. There was also a large quantity of cannabis leaf in bags. It is accepted by the Crown that the cannabis was in the drying phase and that the dried weight was likely to be considerably less. For sentencing purposes, I proceed on the basis of your own estimate that there were seven or eight ounces of cannabis, or 210 to 240 grams that would have been available for sale. I am told that when interviewed, you thought there was about

$2,000 worth of cannabis at the house. You said that you intended to sell some of it for $300 for a 30 gram bag.

Personal background

[6] You are a 34 year old man, who, I am told, resides with your partner and your two children in a Housing New Zealand property. You have been on the unemployment benefit, although it has been confirmed to me today that you have had a job offer, which continues to be available to you.

[7] You report having had a stable upbringing. You described your parents as hard workers. They know of your offending, and they are supporting you.

[8] You say that after leaving school in the sixth form, you started a carpentry course but you did not complete it. I gather that your employment has mainly been unskilled work on a reasonably casual basis.

[9] You have said that your offending was financially motivated, although it is pretty clear that you yourself have some substance abuse issues. The report refers to a harmful pattern of alcohol consumption, and you have acknowledged your cannabis use.

[10] Your record of offending tends to confirm that you have had problems with both alcohol and cannabis abuse in the past. I see that you have had three convictions for driving with excess breath or blood alcohol. In 1999, you had a conviction for selling cannabis and possession for supply. The sentence on that occasion was six months’ periodic detention, which indicates to me that, again, what was being considered was a fairly low level of commercial activity.

[11] You also have convictions for offences of violence. You served a three year prison sentence some 12 years or so ago. But it does seem to me, looking at your criminal record, that over the last 10 years or so, generally speaking, you have managed to keep your life under reasonable control.

[12] You are assessed as at medium risk of re-offending, though at low risk of drug re-offending and, encouragingly from the point of view of sentence, the probation officer has assessed you as being quite highly motivated to rehabilitate yourself.

Sentencing – starting point

[13] As you have heard in the discussion that I have had with counsel, for the purpose of sentencing for this kind of offending, the starting point is a case called R v Terewi[1], which prescribes bands of sentence for different categories of offending. It is agreed that you come within what is described as category 2, which is small scale cultivation of cannabis plants for commercial purpose, and relatively small scale dealing in cannabis. The range of sentence for that sort of offending is between and four years generally.

[14] The Crown has said that I should adopt a starting point of between two and a half and three years, based on the level of commerciality that Mr Walker argues exists in this case, and he points, as you know, to the quantity involved and the presence at your house of scales and snaplock bags and so on; the usual sort of materials that are associated with sales of cannabis. The Crown also suggests that I could be justified in increasing that sentence by up to three months, to take account of your previous offending.

[15] Mr Walker for the defence, on the other hand, says that the starting point should not exceed two years, taking into account, among other things, that there is no evidence that there were any actual sales.

[16] It is possible to find cases of very similar, if not equivalent offending to yours, which have adopted starting points ranging from two years to three years’ imprisonment, as well as points in between. A recent example is the case of Lord v R[2] where a number of cases involving sentencing in similar circumstances are

_discussed.

[17] My view is that the level of commerciality suggests, as Mr Walker for the Crown submitted, a level of commerciality at the lower end of category 2. The quantity and potential values of the cannabis were modest; there were no actual sales; there was no evidence that you had made any money out of what you were doing; and I accept that some of the cannabis would have been for your personal use. There were no particular aggravating factors. I consider a starting point for sentencing purposes of two years, three months would be appropriate.

Aggravating and mitigating factors

[18] I do not accept the Crown’s submission that there should be any uplift for your previous offending. I consider the previous cannabis offending is historical now and that it would not be appropriate to take it into account for the purpose of fixing the starting point.

[19] The relevant mitigating factor is your early guilty plea. You first appeared on

7 December 2011. You pleaded guilty on your third appearance on 2 February 2012. I consider a discount of the full amount permitted under the case of Hessell v R[3] is appropriate of 25 per cent. That would reduce your sentence, if I were to consider the option of a short term of imprisonment, to one year and eight months.

Alternatives to prison

[20] As you know and as I have already mentioned, sentencing was adjourned so that further consideration could be given to a community-based sentence. There is a home detention report, which tells me that the house that you occupy with your partner and children is technically feasible for the purpose of home detention. Generally speaking, where someone’s home has been used, or has been the place where the offending has taken place, home detention is not regarded as a satisfactory option primarily because of the heightened risk of re-offending.

[21] I am not entirely convinced that that would be a decisive consideration in your case. I consider that a sentence of home detention could have been imposed,

but I have been persuaded by the, if I may say so, thoughtful and constructive submissions of both the Messrs Walker that there is a better option, and that is a combination of a sentence of intensive supervision and of community work. I accept Mr Walker for the Crown’s submission that such a sentence is going to provide the best means for you to rehabilitate yourself, while at the same time, both by reason of the restrictions associated with the intensive supervision sentence and the obvious punitive element involved in the community work sentence, carrying with it a sufficient element of denunciation and deterrence. In other words, that sentence will punish you, but it will also provide you with the best opportunity to make the kind of changes to your life that you obviously accept need to be made. That is because if you come back before the Court for this or other kinds of serious offending again, you will go to prison, and that is not something that you want to happen, either from a personal point of view or from the point of view of your family.

[22] One of the most important things you obviously have to address is your addiction issues, or your substance abuse issues, if I can put it that way. You need to be prepared and have available to you drug and alcohol counselling, and the best place for that to occur is in the community. That is to me a compelling consideration and one which convinces me that the combination of sentences which has been proposed is indeed the appropriate response in your case.

[23] I also accept the submission from counsel for the Crown that an appropriate term for the intensive supervision is 18 months (subject to conditions directed especially to dealing with your drug and alcohol issues) and also with a sentence of

200 hours’ community work.

Result

[24] So, Mr Walters, if you would not mind standing now please, and I will formally pass sentence on you.

[25] On the charge of possession of cannabis for the purpose of supply, I sentence you to 18 months’ intensive supervision and 200 hours of community work: the sentence of intensive supervision to be associated with conditions that you:

(a) Abstain from the use and consumption of alcohol and/or illicit drugs;

(b) That you attend an assessment and, if suitable, complete an alcohol/drug abuse programme as directed by the probation officer, to the satisfaction of the programme provider and the supervision probation officer; and

(c) That you attend any such programme or counselling as may be directed by a probation officer, to the satisfaction of the programme provider or counsellor and a supervising probation officer.

[26] On the charge of failing to appear, you are discharged without any further penalty.

[27] You may stand down now then, Mr Walters.

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[1] _{R v Terewi [1999] 3 NZLR 62 (CA)}

[2] Lord v R [2012] NZCA 276

[3] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607