R v McGregor [2012] NZHC 350 (6 March 2012)

Last Updated: 20 March 2012

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2011-031-001318 [2012] NZHC 350

THE QUEEN

v

MATTHEW OWEN MCGREGOR

Counsel: A M Read for Crown

B St J Gore for Prisoner

Sentence: 6 March 2012

_{NOTES ON SENTENCE OF GENDALL J}

[1] Matthew Owen McGregor, you appear for sentence on the crime of cultivation of cannabis in breach of the Misuse of Drugs Act 1975. In addition, you are to be sentenced for offences under the Land Transport Act 1998, namely driving a motor vehicle whilst your licence was suspended and giving false or misleading information to a traffic officer when required to do so.

[2] You pleaded guilty to those offences in the District Court at Levin and were remanded by Judge G M Ross for sentence on 7 December 2011. On that date Judge L H Atkins QC declined jurisdiction to sentence you and remanded you for sentence in the High Court. Although he did not specifically say so, Judge Atkins must have reached the view that because a starting point of three years’ imprisonment may have been appropriate and the eventual sentence reached may well have exceeded the District Court jurisdiction, as his Honour used the phrase

_{“the ultimate sentence may be on the cusp of that jurisdiction”. There was some}

R V MCGREGOR HC PMN CRI-2011-031-001318 [6 March 2012]

argument then, and now, as to whether Judge Atkins was right to decline jurisdiction given that Judge Ross had convicted and remanded you for sentence in that Court.

[3] Mr Gore, on your behalf, has argued before me that Judge Atkins was wrong and this Court should remit the sentencing exercise back to the Levin District Court.

[4] Under s 28G of the District Courts Act 1947 a Judge may decline to sentence an offender (under s 28) and instead commit him to the High Court for sentence. That is clear from the Court of Appeal authority in R v Webber[1] and indeed, in R v Taumoko[2] the High Court has determined that the power to decline sentence subsists even up until the point of a committal warrant being signed. The power to decline to

sentence in the District Court may be exercised by a District Court Judge whenever he or she is concerned about the jurisdictional limits preventing the imposition of the appropriate sentence at that time. Judge Atkins was entitled to decline to sentence if he formed that view, as he must have, that the available sentence to him was outside his jurisdiction. For what it is worth if the sentencing judge had been Judge Ross he might also have declined to exercise jurisdiction to sentence when that time came, depending on all the material that would have then been before him. Whether in fact the end sentence turns out to be above or below the jurisdictional limit of the District Court is of course another matter, but you having been properly remanded for sentence in this Court my obligation and duty is to impose sentence.

[5] The facts upon which I sentence you are as follows. On 31 August 2011 you were driving a motor vehicle when stopped by the police. Your licence had earlier been suspended. You gave a false name and birth date, namely that of your brother in order to avoid apprehension and no doubt, to avoid search of the car which disclosed evidence of cannabis cultivation in the form of cannabis plant bases found in the car. Once that had occurred you agreed to the police obtaining a search warrant to search the home that you rented on the main highway in Manakau. Upon execution of the warrant the police discovered that the entire house had been modified from its intended use as a dwelling to provide a base for a substantial

_{cannabis cultivation exercise. The house was not being lived in and was found to}

contain equipment used in the cultivation of cannabis, including fertilisers, potting mix, lights, ducting, air pumps, electronic timers and air filters and there were scales and resealable plastic bags there also, which are often accompanied with those who supply or deal.

[6] Within the living area there was a black tent containing 29 cannabis plants and a sophisticated air-conditioning unit. Each of the three bedrooms was equipped with lighting equipment, vents and other apparatus used for the cultivation of cannabis and a total of a further 60 cannabis plants were located in two bedrooms, and in a further bedroom there was the remnants of a crop which had been harvested. A large number, namely 71 seedlings were growing in incubators within a closet. You admitted that you had rented the house so as to use it for the cultivation of cannabis and that rental commenced on 29 October 2010, that is 10 months earlier. You are of course charged only with cultivation on 31 August 2011, but from the photographs of what was found at the premises it is abundantly clear that there had been cultivation taking place over an extended time. In explanation you told the police you were paid $300 a week to be the “caretaker”, whatever that may mean, of the crop and the cultivation operation, but had no part in the end use of the cannabis plant, that is its sale and supply, and you of course are not charged with that. But you declined to name the person or persons to whom you say the equipment and operation belonged.

[7] As I have said it is clear the entire house was being used for the purpose of quite significant cultivation over a period of time and it was not the use of residential premises or a garage or a part of them, or an outbuilding for cultivation. The entire property rented by you, the power account was in your name, and the house was used solely for the purpose of a cannabis cultivating operation. It is beyond any doubt that this was a specialised setup of an entire house with a sophisticated extensive operation. The clear inference that can be drawn, and I do draw, is that the cultivation was for ultimate commercial purposes. Both counsel accept this and

submit that you fall within what is known as category two in R v Terewi[3]and I will

_{return to this. Indeed, it is apparent that you accept the commerciality of the}

operation given that you claim that you were working for others who were the ultimate suppliers of the harvested crop.

[8] An analysis of rental paid and payments received if your claims are correct, are that over a two months period you incurred $900 for power. That equates to

$5,400 a year. That you paid rent you say of $180 a week, which equates to $9,000 a year. Those two amounts come to $14,400. You say you were paid $300 a week for your part in the cultivation. That is $15,000 a year. Those figures illustrate that this was not a small operation. But the Crown accepts that you were not the sole cultivator and I sentence you on that basis, and on the basis of your claim that there were others involved and that you were simply the supplier of the premises, the guardian of the crop and assisting in its cultivation, which is obvious given the material found in your car but were not the ultimate supplier.

[9] The Transport Act charges arise out of the fact you were stopped when driving a motor vehicle and your licence had been suspended for three months and as I have said when asked to give your name and address to the officers you gave the name of your brother and his birth date as that of yours. A later search of the vehicle disclosed your wallet which had your true identity in it.

[10] Your counsel has submitted you are entitled to substantial credit for your early guilty pleas, co-operation with the police, your claimed limited involvement in the operation, no previous drug offences and your remorse and regret. Your counsel has rightly conceded that “commerciality might be inferred”. Now of course you are not charged with supply or selling and that is frequently the case where a charge of cultivation is brought. The tariff case is R v Terewi as I have said, which relates to cultivation for commercial purposes.

[11] You do not fall into category one, namely the growing of a small number of plants for personal use and you claim to not be a user and the Crown accepts that. Category two encompasses small-scale cultivation for commercial purposes with the objective of deriving a profit. The starting point for sentencing purposes is then in the band of between two to four years. Category three is the most serious case of offending, involving large-scale commercial growing with a starting point of four

years or more. I am well satisfied that both counsel are correct in that you fall within category two and in my judgment this is within the mid-range. There is no evidence other than your claim that others were the prime movers in the cultivation, but I sentence you on the basis that you were a party to the cultivation and a critical and vital party and in terms of the law a party is equally guilty as the principals. The property was rented by you, as I have said for 10 months, pursuant to a tenancy agreement, the electricity account of a substantial amount was in your name, there was cannabis material in your car and even if your claim is correct, and I will proceed on the basis that it is, that you were cultivating for the benefit of others, clearly it was for the purpose of commercial dealing of which you were well aware and you would not have been doing so without some eventual benefit to yourself as well as others.

[12] It is said you are remorseful although I am somewhat sceptical of that, because if there was true contrition and co-operation, as I indicated to counsel you could quite easily have told the police of those whom you say you were working for in the cultivation exercise. You could have explained how it came to be that the very sophisticated operation disclosed in the photographs came to be installed. But as I have said, even on your say so you were an integral and vital part to the crime.

[13] In looking at starting points both counsel referred to the sentencing decision of Clifford J in R v Wallace,[4] where his Honour took a starting point of three years’ imprisonment, allowed a discount of 11 months for mitigating features and came to a final sentence of two years one month’s imprisonment. They refer also to another sentencing decision of Clifford J in R v Young,[5] where from a starting point of three years three months’ imprisonment a discount of one year was given to reach a final sentence of two years three months’ imprisonment. Whilst both of those cases have similar facts in terms of degree and cultivation, in the end it is an individual assessment that has to be made by the sentencing judge depending on the circumstances of each case. In your case the cultivation in my judgement falls

_{squarely within category three of R v Terewi and not at the bottom end, given its}

serious nature, size and sophistication. It falls in the mid-range and justifies a starting point of three years’ imprisonment.

[14] The Court must then turn to look at the aggravating features of the offending and despite the traffic offences which led to your apprehension, I do not regard those as justifying any uplift from the three years. Your personal circumstances then have to be factored into the sentencing process. Those are circumstances which may be aggravating or which may be mitigating. You have got 13 previous convictions, three for crimes of dishonesty and others for nuisance matters and motor vehicle offences. It is a factor that you have no previous drug convictions but that is not a mitigating factor just an absence of an aggravating factor.

[15] I am prepared to disregard the previous convictions as being aggravating to the extent of requiring any uplift from the starting point of three years’ imprisonment. You are fortunate that I ignore those. But you are not entitled to a discount or concession for a previous blemish-free record. But a discount for a guilty plea is warranted and required by law. In your case it came within three to four weeks of your initial appearance, but of course the police case was overwhelming and the pretence of pursuing a not guilty plea would have been futile.

[16] Reference has been made to the Supreme Court decision of Hessell v R,[6] where it speaks of a discount for guilty pleas of 25 per cent. But it does not say that that is always to be applied. Hessell says that that is the maximum available for a guilty plea. But in assessing discounts the Court is required to assess all the circumstances and evaluate those as to what is the proper allowance to be given for guilty pleas and mitigating factors. I accept that you now regret your involvement. Remorse can be a separate mitigating factor from a guilty plea and as I have said what is required is a robust evaluation of all the circumstances which demonstrate remorse and which justify mitigation from the starting point. Whilst in one respect your remorse is simply having been apprehended, nevertheless, your admissions to the police when they found the cannabis material in your car are really what led to

_{your ultimate apprehension.}

[17] You are aged 30, you are not immature, you have not got youth to call in aid on your side, nor do you have a blemish-free record. The probation officer describes you as expressing regret, not being a user and at low-risk of reoffending. Home detention which is recommended as you have heard me say to counsel, can only be considered if a short term prison sentence would have been appropriate and the Court cannot, and is not allowed, to artificially reach such a level so as to impose a stand alone sentence of home detention if proper sentencing principles and the required approach would not permit it. Your credit that you are to be given for your guilty plea “must reflect all the circumstances, including the strength of the prosecution case” but as I have said, the maximum can only be 25 per cent in accordance with the decision in Hessell.

[18] In your case from a starting point of three years’ imprisonment I am prepared to allow you three months for your claimed remorse. A discount of 25 per cent would lead to an end sentence of fractionally more than two years’ imprisonment. Accordingly, on that basis home detention would not be possible. But reading beneath and underlying, the words of the probation officer, and the letter that you have submitted, I sense a positive future for you. So I am prepared to exercise what could only be described as compassion or mercy in coming to the ultimate view that a sentence of less than two years’ imprisonment could properly be imposed. That is consistent with the overall discretion that a High Court Judge has in imposing sentence taking into account the need for any sentence to be the least restrictive possible, so as to keep in the community those who have some real prospect of rehabilitation.

[19] Home detention is not a soft option. In fact it is often more severe than a term of imprisonment. That is because if I sentenced you to two years one month’s imprisonment that is 25 months, you would be eligible for parole after one-third. That is a little over eight months. You are going to be sentenced to nine months’ home detention and there is no eligibility for parole with home detention. It must be served to the completion of the term. So, in some respects it is more onerous than a full term of imprisonment.

[20] So on the charge of cultivation of cannabis, because I would otherwise have sentenced you to 23 months’ imprisonment I am imposing a sentence of nine months’ home detention. The start date is to be deferred until 5.00pm Friday 9 March 2012, such deferment under s 80W of the Sentencing Act 2002 to allow you time to travel to Taupo. You are to contact the community probation services in Taupo, telephone [phone] within 24 hours to advise them of your travel details. Thirdly, upon reaching Taupo you are to immediately contact the community probation service. Fourthly, for the duration of your home detention sentence you are to reside at 134

Lake Terrace, Taupo and fifthly, you are to undertake and complete any other assessment, counselling or programme deemed necessary by the probation officer, so as to reduce the risk of reoffending to the satisfaction of the probation officer and the home detention service provider. In respect of the transport offences I do not intend to impose any penalties other than to convict you and discharge you, but in respect of the charge of driving whilst your licence is suspended you are convicted and disqualified from holding or obtaining a driver’s licence for a period of six months. That is the maximum provided in the Land Transport Act.

[21] There will be an order for destruction of the cannabis material and equipment used for cultivation.

[22] I hope you understand Mr McGregor that you have escaped a full term of imprisonment by the narrowest of margins but I have been persuaded that the

_{ultimate sentence is what fits your circumstances and your crime.}

_{J W Gendall J}

Solicitors:

Crown Solicitor, Palmerston North

---

[1] _{R v Webber (1998) 16 CRNZ 252 (CA).}
[2] R v Taumoko HC Rotorua T010910-01149, 7 June 2001.

[3] R v Terewi [1999] 3 NZLR 62 (CA).
[4] _{R v Wallace HC Palmerston North CRI-2008-054-3581, 13 March 2009.}
[5] R v Young HC Palmerston North CRI-2006-054-3336, 8 December 2006.

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