R v Middleton [2012] NZHC 2869 (1 November 2012)

Last Updated: 1 November 2012

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-079-381 [2012] NZHC 2869

THE QUEEN

v

WAYNE CARL MIDDLETON

Hearing: 1 November 2012

Counsel: S Christensen for Crown

C Horsley for Offender

Judgment: 1 November 2012

_{SENTENCING NOTES OF TOOGOOD J}

Solicitors:

S Christensen, Ronayne Hollister-Jones Lellman, Tauranga: [e-mail]

C Horsley, Adams & Horsley, Tauranga: admin1adamshorsley.co.nz

R V MIDDLETON HC ROT CRI-2012-079-381 [1 November 2012]

[1] Wayne Carl Middleton, you appear for sentence having pleaded guilty to one charge of cultivation of cannabis for which you are liable to two years’ imprisonment; one charge of theft of electricity carrying a maximum penalty of seven years’ imprisonment; one charge of possession of cannabis for sale, which makes you liable to eight years’ imprisonment; and one charge of possession of a stun-gun, a restricted weapon, for which you are liable to four years’ imprisonment.

[2] Your offending was detected when the Police searched your address on

18 June 2012 and found 47 cannabis seedlings in small pots under a heat lamp;

47 cannabis plants in buckets in a bedroom which was set up with heat lamps, fans, and a dehumidifier and lined with silver paper; six cannabis plants; and over a kilogram of cannabis head material stored in a freezer in your kitchen. Police also found a stun-gun in working condition in a jacket hanging on a door. An inspection of the power meter at your address showed that the place had been illegally wired and that you had been stealing electricity from Genesis Power.

[3] It is alleged by the Police that your offending began in November 2010, but you dispute that and say that a probation officer who visited you in November 2011 did not detect any cannabis on the premises. I am prepared to accept for sentencing purposes that the growing period was something under a year.

[4] In sentencing you for this offending, I am obliged first to establish a starting point which reflects the nature of your offending itself, looking at guidelines established by the Court of Appeal and the features of your offending, both aggravating and mitigating (if any), in comparison with the sentences imposed in other broadly similar cases.[1]

[5] I then take into account aggravating or mitigating factors which relate to you personally, including your previous history of offending. Finally, I need to recognise your guilty pleas by giving you a discount on the sentence which would otherwise be

_appropriate.[2]

[6] Because you are to be sentenced on four separate charges, I am required to ensure that the overall effective end sentence imposed is an adequate reflection of the totality of your offending,[3] bearing in mind the purposes and principles of sentencing which include holding you accountable for your actions, denouncing your conduct, deterring you and others from similar offending in the future, and protecting the community from you to the extent that that may be necessary.[4] I also have to take into account the fact that I am required to impose the least restrictive sentence which is available to properly reflect the sentencing principles and purposes set out in the Sentencing Act 2002.[5]

[7] In this case the position is complicated by the fact that the Crown has also sought an order for the forfeiture of the house in which you committed these offences. The Crown accepts, as it must, that any forfeiture order would have a substantial punitive effect which needs to be taken into account by reducing any term of imprisonment which might be imposed. Ms Christensen for the Crown says that forfeiture coupled with home detention would therefore be an appropriate mix of penalty. Although reaching her recommendation by a slightly different route, Ms Webby also supports a sentence of home detention but on your behalf strongly opposes any forfeiture order.

[8] I address first the question of forfeiture and, rather than keeping you in suspense, I tell you now that I do not intend to make an order for forfeiture of your home. I need now to explain why.

[9] Section 142N of the Sentencing Act 2002 provides for the making of an instrument forfeiture order if the court is satisfied that property has been used wholly or partly to commit or assist in the commission of a qualifying offence. The factors to be considered in respect of such an issue include any matters raised by you in applying for relief from the forfeiture order; the use to which the property is ordinarily made; and any undue hardship that is reasonably likely to be caused to any

_{person by the making of a forfeiture order.}

[10] In the present case it is suggested by the Crown that the property is worth some $410,000, but you say that the reality of the present marketplace is that you would not expect to receive more than $220,000 for the property. I also need to take into account that the property is mortgaged to a bank for over $78,000.

[11] It is clear that, although this offending took place in your home, the cultivation and storage of cannabis was not the exclusive or even the primary use of the property. The Court of Appeal has noted in the past that where a property is used principally as a dwelling and the offending was merely incidental or subordinate to its main use a forfeiture order may be too harsh.[6]

[12] In considering the question of undue hardship, I take into account the value of the property, the value or size of the crop, whether you used the proceeds of offending to acquire the property and, of particular significance in this case, the likely consequences of a forfeiture order on you and others.

[13] In this case I need to look at your personal circumstances and I make it clear, of course, that you acquired this property legitimately some time before your offending commenced. I note that you are 54-years-old. You are currently unemployed and you do not enjoy good health. The loss of your home, which is your only significant asset, would be a substantial punishment. While you may be in a position to rejoin the workforce if and when your health is restored, depriving you of your home is likely to impose a considerable future financial burden on you and arguably upon others, including the tax payer.

[14] I recognise that it would be open to me to direct partial forfeiture of the property by requiring it to be sold and ordering forfeiture of a percentage of the net proceeds of sale. While that would leave you with some assets in the form of cash, I consider it too harsh to then require you, if it were possible to do so, to find another home.

[15] In the circumstances, I am not persuaded that making an instrument forfeiture order is appropriate in this case. I therefore approach the question of sentence on the basis that the Crown’s application is put to one side.

[16] The nature of your offending is consistent with your claim that the primary purpose for the cultivation of cannabis was to supply your own needs. But having regard to the lead offence of possessing cannabis for sale, the quantity confirms that there was an element of commerciality in what you were doing. I place you at the lower end of Category 2 on the Terewi scale which is of a small-time dealer including an element of commerciality, there being no evidence to support a claim of

large scale dealing.[7] You say that you have been supplying terminally ill patients for

pain relief at relatively modest cost.

[17] I consider that the appropriate starting point on that lead offence, that is possession for supply, is one of two years’ imprisonment, but I add an uplift of four and a half months’ imprisonment as being necessary to reflect the theft of electricity and I make a further uplift of four and a half months for possession of the stun-gun. Possession of firearms while involved in drug dealing has a sinister overtone. I regard the total of two years nine months’ imprisonment to be a proper reflection of the totality of your offending.

[18] To that period of two years nine months’ imprisonment I would add a further three months’ to reflect the fact that you have prior cannabis convictions, although I do note the last was some 17 years ago. That three months would not be added to punish you again for that earlier offending, but to mark the extra need for deterrence given that you apparently were not deterred by your earlier sentences. That approach leads to a notional sentence of three years’ imprisonment.

[19] I turn then to look at personal mitigating factors. I accept that you are genuinely remorseful for your offending and that is indicated by your early guilty plea. I acknowledge also that you have made an attempt to provide reparation for the theft of the electricity. It is not the amount that you have paid so far, Mr Middleton, which is as important as the gesture, and I accept that that was made in good faith

and give you credit for it. I note also, and it is to your credit, that upon your apprehension you referred yourself to the community alcohol and drug service for assistance to overcome your chronic cannabis addiction. The community mental health nurse who reported on you says that you have engaged well with the services available, keeping all of your appointments and arriving on time. You have been honest and willing to participate in urine drug screens; you impress her as being motivated to change; and you have acknowledged the impact that your abuse of cannabis had had on your family and the wider community.

[20] It is clear, importantly to me, that you have not used cannabis since the beginning of July 2012. Notwithstanding your grief and consequent depression following the loss of your wife some two years ago, you have stuck at it and I am told that you remain highly motivated to remain drug-free. I consider a reduction of nine months’ imprisonment to be appropriate to reflect these factors.

[21] That would produce a sentence of 27 months’ imprisonment but, as is accepted by the Crown, you are entitled to the full available discount of 25 percent on account of having pleaded guilty to these charges at the earliest opportunity. That would then result in a sentence of approximately 20 months’ imprisonment which, being less than two years, justifies consideration of home detention as an alternative to imprisonment.

[22] As was said in another case, where an offender is motivated to change, and where there is a realistic prospect that he or she will be able to change, there are obvious benefits in a sentence of home detention both from society’s perspective and from that of the offender.[8] Home detention is not a soft option. It is akin to serving a term of imprisonment at home. In the present case it is not proposed that you would serve the period of detention in your own home, but instead at your daughter’s address.

[23] I have read your daughter's letter. She values you as I am sure you value her, and it is a credit to you that she speaks so highly of you. I anticipate that she will assist you in compliance with the conditions of home detention and in the avoidance

of further offending. In the particular circumstances of this case, the apparent irony of sentencing someone to home detention for offending which took place in their home does not arise.

[24] Given the absence of any automatic parole period when a sentence of home detention is imposed, unlike imprisonment, I consider a period of 10 months’ home detention to be appropriate in this case.

[25] Mr Middleton will you please stand. On the charge of cultivation of cannabis you are sentenced to four months’ home detention; on the charge of theft of electricity you are sentenced also to four months’ home detention; on the charge of possession of cannabis for sale you are sentenced to 10 months’ home detention; on the charge of possession of a restricted weapon you are sentenced to six months’ home detention. All sentences are to be served concurrently meaning that the total effective end sentence is one of 10 months’ home detention.

[26] To comply with the order for home detention you will travel directly to

1216 Waikehe Valley Road, Waikehe Valley, Rotorua, and await the arrival of the probation officer and personnel from the security company. You will co-operate with the affixing of the monitoring devices and with any servicing that may be required.

[27] You will attend assessment for alcohol and drug abuse and complete any treatment or counselling recommended to the satisfaction of the probation officer and the treatment or counselling provider. You will attend any counselling, treatment or programme as instructed by the probation officer to the satisfaction of the probation officer and the counsellor, treatment or programme provider.

[28] You are not to consume or possess alcohol or drugs not prescribed for you by a medical professional.

[29] I order forfeiture of the stun gun, and the equipment used for the cultivation and storage of cannabis. Given the amount that you have already paid by way of reparation and taking into account the submissions of both counsel, I direct you to pay a further $3,000 by way of reparation to Genesis Power.

_{[30] Please stand down.}

...........................................................

Toogood J

---

[1] _{R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [60].}
[2] Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607.
[3] _{Sentencing Act 2002, s 85.}
[4] _{Sentencing Act 2002, ss 7, 8.}
[5] Sentencing Act 2002, s 8(g).

[6] Cooksley-Mellish v Solicitor-General CA209/05, 27 June 2006 at [21] and [33].

[7] R v Terewi [1999] 3 NZLR 62 (CA).

[8] R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [37].