Police v LaHood [2012] NZHC 3462 (17 December 2012)

Last Updated: 8 January 2013

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2012-054-853 [2012] NZHC 3462

NEW ZEALAND POLICE

v

JOSEPH RIKI LAHOOD

Hearing: 17 December 2012

Counsel: P L Murray for Crown

Mr Lahood in person

Sentencing: 17 December 2012

_{SENTENCING REMARKS OF MACKENZIE J}

[1] Joseph Riki Lahood, you appear for sentence having pleaded guilty to a charge of cultivation of the Class C drug cannabis.[1] You are here for sentencing in this Court because the District Court has declined to sentence you because of the seriousness of the offending.

[2] You have previously been represented by counsel, Mr Coles, and were represented by Mr Coles at the time when your plea was entered. You have subsequently elected not to retain his services and to represent yourself and I have given you the opportunity to make submissions this morning and have considered

_{the material you have put before me.}

NEW ZEALAND POLICE V LAHOOD HC PMN CRI-2012-054-853 [17 December 2012]

[3] The circumstances of the offending are that on 20 March 2012, police executed a search warrant at the address of you and your partner. A search of the back garden revealed four mature cannabis plants growing in soil between other types of plants. There were also four cannabis seedlings growing in pots on top of the dog kennel.

[4] In a small space between your garage and the fence alongside your property, the police lifted a piece of plywood on the ground which revealed the entrance to a large underground bunker which had been excavated underneath the concrete floor of the garage. That excavation bunker measured some 2.3 metres by 2 metres and was 1.7 metres high, with only one entry and exit point, and structural support had been provided.

[5] Within it police discovered a quite sophisticated cannabis growing operation. The bunker contained three large mother cannabis plants and 104 further cannabis plants of various sizes and maturity. The photographs of the bunker, which I have seen, illustrate the sophisticated nature of that set up. All the cannabis plants were in individual plastic pots. The sides of the bunker were lined with a white fabric. The floor of the bunker was covered by black netting and wooden slats. Two stainless steel shower trays were on top of the netting. You had installed a number of implements in the bunker to assist in growing the cannabis, including heat pumps, an extractor fan, power transformers, air vents, plant growth food and shelving.

[6] In the garage above the bunker, police located further cannabis growing. A tray at the rear of the garage contained 28 cannabis seedlings with a heat pad, two heat pumps and an electronic timer, which were all plugged directly into a power source. The police also located small quantities of cannabis leaf material in various places in the garage.

[7] In the kitchen of the house, police located an electronic safe. Inside the safe, there were three sets of battery-operated scales and one clear zip lock bag with green dollar signs printed on it. A further five of the snap lock bags were found in the main bedroom. In the living room police found a cannabis bong, three cannabis tinnies and a glass pipe. And a further set of scales were found in the main bedroom.

[8] Text messages sent and received on your phone between 13 and

19 March 2012 show that you were involved in dealing cannabis.

[9] When spoken to by police, you admitted knowledge of the cannabis plants and the seedlings. You did not say who they belonged to but stated that they were for personal use only.

[10] Initially, there was a dispute about the yield of the cannabis that you had cultivated, but I have relied, and the police have relied, in sentencing only on what was found and the inferences available from that and no calculation of yield has been relied on by me in this sentencing.

[11] As to your personal circumstances you are 47 years of age and a beneficiary. You live in Woodville alone. You have been separated from your wife for about two years. She lives in Palmerston North with your three sons, who are aged 14, 15 and

20, who you see regularly.

[12] You suffered a work injury in 1984 for which you underwent spinal fusion surgery and you have been receiving compensation from ACC. You have made available to me medical reports which confirm the nature and extent of the injuries and the treatment that you received. You explain that you grew cannabis to relieve your back pain because, you say, conventional medication made you aggressive and the cannabis was the better alternative. You say that the cannabis that was found was purely for your own use. According to your pre-sentence report writer, you show no remorse for your offending. Instead you appear to blame ACC, saying that it put you in a financial situation where you could not afford to purchase cannabis so you resorted to growing it. You also told your report writer that growing cannabis is not a criminal act if it is to relieve your back pain. That was not a correct assumption on your part. You keep in contact with your family but do not partake in other social activities, and you say that ACC has made you “an unsociable person”.

[13] You admitted to the pre-sentence report writer that although you have not been convicted of an offence since 1999, you have been using cannabis since 1996.

You have convictions for driving with excess blood alcohol. You are assessed at a high risk of reoffending and a medium risk of harm.

[14] In relation to possible sentencing options, you refused to participate in any community based programmes to address your drug use. You also refused to consent to any electronically monitored sentences because you refuse to be “locked up” in your own home.

[15] In sentencing you, I am required to take into account the purposes and principles of sentencing as set out in the Sentencing Act 2002. I consider, in your case, the relevant principles to be holding you accountable for your offending, denunciating your offending, deterring you and others from such offending, and also ensuring your rehabilitation.

[16] In setting the starting point for cannabis offending, guidance is provided by the Court of Appeal’s decision in R v Terewi.[2] Counsel for the Crown submits that your offending falls within category two of Terewi. That category encompasses small-scale cultivation of cannabis plants for a commercial purpose, and generally warrants a starting point of between two and four years imprisonment. Although you have said that the cannabis was purely for your own use, I have difficulty in accepting that explanation. The amount of cannabis found, the sophistication of the set up, the presence of materials indicative of dealing such as scales, snap lock bags

and text messages indicate that there was an element of commerciality in your offending.

[17] The Crown submits that a starting point in the region of two and a half to three years imprisonment is appropriate to reflect the quantity of cannabis being grown, the evidence of commerciality and the relatively sophisticated nature of your set up.

[18] I have taken that submissions into account and I have also had regard to a number of cases which are comparable to yours and which give me an indication of

_{an appropriate starting point. Those cases I will not discuss, but they will be referred}

in the written sentencing notes.3 Taking those facts and those cases into account I assess your offending as being in the middle of category two of Terewi and I consider that the appropriate starting point for your offending is three years.

[19] As to personal aggravating and mitigating factors you have some previous convictions but those are now quite dated and in the circumstances I do not think that they require any uplift. Your background and the personal circumstances that you have outlined and the injuries that you have suffered, and the need to take cannabis, as you say, for pain relief, are not matters that I can properly take into account, making a reduction from the starting point. The use of cannabis and particularly in dealing in cannabis is a serious offence and cannot be excused in that way.

[20] The one factor that does require an adjustment to the starting point is your guilty plea. That was entered at an early stage and you are entitled to a discount which I assess at 25 per cent or nine months from the starting point.

[21] Accordingly, you are sentenced to imprisonment for a term of two years and three months.

[22] I also make an order for the forfeiture of the cannabis, equipment and drug paraphernalia, located during the search of your address.

“A D MacKenzie J”

Solicitors: Crown Solicitor’s Office, Palmerston North

_{Copy to: Mr Lahood}

3 R v Andrews [2000] 2 NZLR 205 (CA); R v Wallace HC Whangarei CRI-2009-027-3138,

18 March 2010; R v Haddon [2012] NZHC 1034; R v Hawke HC Auckland CRI 2009-044-

010006, 24 August 2010; R v Cooper HC Auckland CRI-2007-044-1261, 15 July 2008; R v

Butler CA221/04, 4 October 2004; R v Kyle HC Auckland CRI-2010-044-2940, 27 July 2010.

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[1] _{Misuse of Drugs Act 1975, s 9, with a maximum penalty of seven years imprisonment.}

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