R v Stark [2012] NZHC 359 (7 March 2012)

Last Updated: 13 January 2013

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI-2011-018-000339 [2012] NZHC 359

THE QUEEN

v

ANTHONY JOHN STARK

Hearing: 7 March 2012

Counsel: C Butchard for Crown

E Bradley for Prisoner

Judgment: 7 March 2012

_{SENTENCING REMARKS OF LANG J}

R V ANTHONY JOHN STARK HC GRY CRI-2011-018-000339 [7 March 2012]

[1] Mr Stark, you appear in this Court for sentence having pleaded guilty in the District Court to two charges of cultivating cannabis. One of those charges was laid summarily and carried a maximum sentence of two years imprisonment. The other was laid indictably and carried a maximum sentence of seven years imprisonment.

[2] You pleaded not guilty in the District Court to a further charge of being in possession of cannabis for supply. You denied that charge, principally on the basis that you said that you were in possession of all of the cannabis for your own use. After a defended hearing on 13 February 2012, Judge Phillips rejected your defence on that charge. He found that you were in possession of at least part of the cannabis that was the subject of that charge for the purposes of commercially supplying others. He convicted you on that charge and then remanded you through to this

Court for sentence on all charges.[1] He did so because he apprehended that the

maximum sentences that were available to him were less than the culpability of your offending required.

Factual background

[3] The factual background to your offending can be set out very simply. Your offending relates to two separate incidents. On the first of these, you were caught up in a police operation that targeted the cultivation of cannabis in the West Coast Region. On 24 March 2011, the police executed a search warrant at your address at Dillmanstown. When the police searched your dwelling, they found 75 fresh cannabis buds hanging to dry over a stove. The police seized the cannabis and dried it. In its dried state the cannabis weighed 222 grams. When the police asked you where you got the cannabis from, you told them that you had purchased some cannabis clones prior to Christmas, and you had grown those plants near your dwelling.

[4] As a result, you were charged with cultivating cannabis and with possession of cannabis. The latter charge still awaits disposition in the District Court, but I

anticipate that it is likely that you will be convicted and discharged on that charge following sentencing in this Court on the remaining charges.

[5] The second set of charges arose as a result of another search of your property that the police undertook approximately four weeks later on 22 April 2011. On this occasion the police were not executing a search warrant, but were there for some other purpose. The detective who went to your address knocked on the door and found that there was no reply. The window to the left hand side of the door was open, and the detective shouted through that window to announce his arrival. At that point he detected a strong smell of cannabis emanating from your dwelling. He therefore invoked his powers of search under s 18(2) of the Misuse of Drugs Act

1975, and entered the property via the open window.

[6] His evidence was that the smell of cannabis inside the house was overpowering. In a child’s bedroom, the detective discovered a quantity of cannabis material laid out on a plastic sheet on the bed. This appeared to have been laid out to dry, and weighed 114 grams. To the left of the bed in this room was a set of digital scales that had dried cannabis plant material on them. To the left of the digital scales was a basket containing five plastic ziplock bags of the type commonly used to package ounce quantities of cannabis. These sell for between $250 and $500 each depending on availability, with the most common price being around $300.

[7] To the left of the zip lock bags the detective saw a white plastic container that had 20 cannabis seedlings growing in it. He observed that these were in a healthy state and appeared to be well cared for.

[8] The detective then went into the main bedroom at the address. To the right hand side of the bed he discovered a white plastic sealed container. When he opened this, he discovered that it contained a large quantity of cannabis. This was found to comprise cannabis head material and weighed 1941 grams. When the police caught up to you and spoke to you about what they had found at your address, you declined to make any comment.

[9] During the defended hearing in the District Court you told the Judge that you have had two serious accidents in the past. These have left you with significant head and shoulder injuries. Your injuries have cost you your fledging career as a chef, and you have also recently had difficulties in a building business that you undertook. As a result, you were declared bankrupt. All of these matters appear to have contributed to a state of depression in which you found yourself. You also had issues with anger and aggression, and I infer that the butt of these emotions was your family.

[10] You said that you began using cannabis as a preferred way of providing yourself with relaxation and respite from the pain caused by your injuries. You told the Judge that you were consuming huge quantities of cannabis on a daily basis. You were smoking it before and after you went to work, and you also consumed it during the day in biscuits that contained cannabis. You maintained that all of the cannabis that the police found at your address on 22 April 2011 was for your own consumption in this way.

[11] The Judge rejected your explanation. He found that your asserted consumption of cannabis was difficult to reconcile with your occupation as a roofer. He also found that the quantity of cannabis that the police found, coupled with the existence of scales and zip lock bags, meant that at least some of the cannabis was for commercial supply to others. Having said that, he accepted that at least part of the cannabis was indeed for your own use.

Sentencing principles

[12] In any case involving commercial drug offending, the sentencing principles of denunciation and deterrence are to the forefront. People have to know that if they are prepared to deal in drugs, then the likely response of the courts if they are caught will be to impose a significant sentence, usually a sentence of imprisonment. That is the only realistic way in which the courts can hope to contribute to the war against drugs.

[13] Having said that, the Court needs to impose a sentence that is broadly consistent with sentences imposed in similar cases. It also needs to impose a sentence that is the least restrictive outcome, having regard to both the offending and the circumstances of the offender.

The April offending

[14] I propose first to consider the offending that occurred on 22 April 2011, because that is by far the most serious. Having selected a sentence on that charge, I will consider whether, and if so to what extent, to increase the sentence to reflect the earlier offending.

Starting point

[15] Counsel agree that the starting point of the sentence to be imposed in your case is determined by the decision of the Court of Appeal in R v Terewi[2]. In that case the Court identified categories of cannabis-related offending, and suggested guidelines for the starting points to be imposed in relation to those categories. Both counsel agree that your offending falls within Category 2 identified in Terewi. This involves the small scale cultivation of cannabis, but nevertheless cultivation with a commercial element. The Court of Appeal said that the starting point within Category 2 will fall between two years and four years imprisonment.

[16] I am satisfied that you fall within this category. You were clearly involved in cultivation in a reasonably significant way, and at least some of that cultivation was for the purposes of supplying cannabis commercially to others.

[17] I consider that your offending in relation to the April charges falls towards the bottom end of Category 2. I therefore select a starting point of two years four

_{months imprisonment on those charges.}

Aggravating factors

[18] I now need to consider whether that starting point needs to be adjusted upwards to reflect aggravating factors personal to you.

[19] Here, the Crown and your counsel have identified two. The first, and most obvious, is that the April offending occurred at a time when you were on bail on charges relating to the March incident. That is a serious matter, Mr Stark. You knew in April that you were facing charges, including a charge of cultivating cannabis. You were on bail in respect of those charges. The fact that you were prepared to go out and within four weeks commit these offences shows just how determined you were to involve yourself in cannabis.

[20] I consider that the Court has to make an allowance for this, because of its seriousness. I propose to increase the starting point that I have selected by three months to reflect this factor.

[21] The Crown and your counsel also point out that you have previous drug- related convictions. In particular, you have a previous conviction for being in possession of cannabis for supply. You also have a conviction, albeit in 1991, for manufacturing a Class B controlled drug. You received a sentence of nine months non-residential periodic detention on that occasion.

[22] Your last drug-related offending was, however, in 2000. On that occasion you were fined $200 for being in possession of cannabis. You had earlier been fined the sum of $400 in 1997 for the same offence.

[23] Ordinarily, Mr Stark, previous convictions for drug-related offending such as that would attract a further uplift. The purpose of the uplift is not to punish you again in respect of earlier offending. Rather, it reflects the principle that a person who is being convicted of drug-related activity knows the seriousness of that type of offending and knows the likely penalty that will be imposed. A person in that position who goes on to offend again in the same way must be taken to have reached the conclusion that the risk of being caught is overpowered by the reward to be

obtained by the offending. What it does is make the subsequent offending that much more serious.

[24] I have given consideration to whether I should increase the starting point further to reflect this factor. Upon reflection, however, I have elected not to for two reasons. First, your last conviction was approximately 12 years ago, and that is some considerable time ago. Although you cannot put yourself forward as a person with no previous convictions, I regard your previous convictions as somewhat historic. Secondly, I propose to balance that by reducing the amount of credit that I am going to give for personal factors.

Mitigating factors

[25] I now need to consider the extent to which I should reduce the end starting point of two years seven months to reflect mitigating factors personal to you.

[26] You appear for sentence at the age of 46 years. As I have already indicated, you have had difficulties in your life and these have led you to turn to cannabis. I am satisfied that you had a significant craving for cannabis at the time of this offending, and this is probably the root cause of the offending. Recently, however, you have turned the corner and sought assistance in a structured way for your problems. You need to ensure, Mr Stark, that you continue along that path or there is no doubt that you will be back before the Court again in the future.

[27] I have read a very heartfelt letter from your wife. She points out the difficulties that your drug use and offending have caused for your family. She also points out that any sentence of imprisonment is likely to have a devastating effect for both you and your family. I appreciate and understand those concerns, Mr Stark, and I accept that they are very real. In the end, however, you have brought this upon yourself by the fact that you were prepared to become involved in drugs so soon after being arrested on 24 March 2007. You, and you alone, must now bear responsibility for what follows.

[28] For that reason I am not going to allow a discount for personal factors. As I have said, I balance that against the fact that I am not increasing the sentence to take account of previous convictions.

[29] It is necessary, however, for me to provide you with a discount in respect of your guilty plea on the April cultivation charge. That is not a particularly easy exercise, because the two charges arising out of the April offending are very much intertwined, and I have selected a starting point that reflects your culpability on both charges. I propose to allow a discount of six months to reflect your guilty plea on that charge.

End sentence

[30] This leaves me with an end sentence of two years one month imprisonment on the April charges.

The March offending

[31] I now need to consider the extent to which, if at all, I should increase the sentence to reflect the March offending. This offending was very much at the lower end of the scale. That is reflected in the fact that the police did not charge you with possession for supply on that occasion, and they also charged you with cultivation in the summary jurisdiction of the Court.

[32] Had you been appearing for sentence on those charges alone, it is likely, as your counsel has submitted, that you would have received a community-based sentence such as community detention. That is not possible in the present circumstances because of the fact that I have imposed a sentence of imprisonment on the April charges.

[33] Taking into account your guilty plea and the lesser nature of the earlier charge, I consider that justice will be served if you receive a one-month cumulative sentence on the March cultivation charge.

Home detention

[34] It will now be obvious from what I have said that a sentence of home detention is not an option for you because your sentence is greater than two years imprisonment. I need to say, however, Mr Stark, that even if your sentence had fallen below two years I would not have been prepared to impose a sentence of home detention in your case.

[35] Any sentence that is imposed must reflect the purposes and principles of sentencing. To the forefront in your case, as I have already indicated, are the principles of deterrence and denunciation. I do not consider that those principles could adequately be addressed by a sentence of home detention, particularly given the fact that you have a reasonably significant number of earlier convictions for drug-related offending.

[36] In addition, as the Court of Appeal pointed out in R v Hill,[3] a sentence of home detention will generally only be appropriate in drug-related cases where the offending falls towards the bottom end of the scale. I do not think that your offending can be said to fall in that area. The Court of Appeal in Hill also noted that it will generally not be appropriate to impose sentences of home detention where an offender is being sentenced in respect of drug-related activity that has occurred within the home. Your offending, Mr Stark, falls very much within that compass.

[37] For these reasons, even if a sentence of home detention was open to me, I

would not have been prepared to impose it.

Sentence

[38] On the charge of being in possession of cannabis for supply on 22 April 2011 you are sentenced to two years one month imprisonment.

[39] On the charge of cultivating cannabis on 22 April 2011 you are sentenced to two years imprisonment. Those sentences are to be concurrent with each other.

[40] On the charge of cultivating cannabis on 24 March 2011 you are sentenced to one month’s imprisonment. That sentence is to be served cumulatively on the sentences imposed in respect of the other two charges.

_{[41] Stand down.}

Lang J

Solicitors:

Crown Solicitor, Christchurch

Counsel:

E Bradley, Greymouth

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[1] New Zealand Police v Stark DC Greymouth CRI-2011-018-000339, 13 February 2012.

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

[3] R v Hill [2008] NZCA 41.