R v Hopper [2012] NZHC 525 (15 March 2012)

Last Updated: 28 March 2012

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-019-7734 [2012] NZHC 525

THE QUEEN

v

NICHOLAS FRANCIS HOPPER

Hearing: 15 March 2012

Counsel: R Annandale for Crown

M Bates for Prisoner

Judgment: 15 March 2012

_{SENTENCE OF POTTER J}

_{Solicitors: Almao Douch, Hamilton –} [e-mail]

_{Copy to: M Bates, Hamilton –} [e-mail]

R V HOPPER HC HAM CRI-2011-019-7734 [15 March 2012]

Introduction

[1] Nicholas Hopper is to be sentenced, having pleaded guilty prior to committal for trial to the following charges: possession of cannabis for supply, sale of cannabis and cultivating cannabis. He was jointly charged with his partner Lola McRae who was committed for trial on 19 January 2012.

[2] The charges of possession of cannabis for supply and selling cannabis each carry a maximum penalty of eight years imprisonment and the charge of cultivating cannabis carries a maximum penalty of seven years imprisonment.[1]

[3] I have received helpful submissions from both the Crown and the defence in relation to sentencing. There is much common ground.

Factual background

[4] From 8 April 2011 to 8 October 2011 Mr Hopper was selling cannabis tinnies to regular customers from the home address he shared with Ms McRae.

[5] On 8 October 2011 police executed a search warrant under the Misuse of Drugs Act 1975 at their address. Both Mr Hopper and Ms McRae were present when the police arrived. Police discovered inside the house a cannabis growing operation in a wardrobe of a bedroom. This operation consisted of a growing light, fan, power transformer, a thermometer lighting control unit, a timer, and a bottle of plant fertiliser. There were five plants in a vegetative state approximately 600mm tall. The summary of facts on the basis of which Mr Hopper entered his guilty pleas estimates the sale value of these plants at between $7,000 and $28,000.

[6] Police located $2,800 in cash in the house, $80 in a backpack belonging to Mr Hopper and $2,720 cash in Ms McRae’s handbag. (Mr Hopper filed an affidavit sworn 9 March 2012 in which he contests that this sum of money was the proceeds

_{of the sale of cannabis or represented funds for future dealing in cannabis or in}

cultivation of cannabis. He has now withdrawn that contention through his counsel, Mr Bates, and has confirmed that sentencing should proceed on the summary of facts on the basis of which he pleaded guilty).

[7] Police also located in Mr Hopper’s backpack 51 cannabis tinnies and two bags containing 41 and 16 grams of cannabis plant material. The estimated sale value of the material sold as tinnnies is between $2,000 and $3,000.

[8] Police also located cannabis utensils, a computer containing software relating to cultivating cannabis, documentation, two cellphones, a roll of aluminium foil, two sets of digital scales and a bag containing 168 grams of cannabis plant material. Police estimate the sale value of this cannabis is between $3360 and $5040 if sold by the tinnie. It is acknowledged that an external hard drive which is police exhibit B2.07 having 500 gigabytes and serial number 2GH132W8 does not contain any material related to the offending and is not an item subject to s 32 of the Misuse of Drugs Act.

Previous history and pre-sentence report

[9] Mr Hopper is 26 years old. This is Mr Hopper’s first drug-related offence. He has a short criminal history for offending in 2004, 2005 and 2007 but the offending is comparatively minor and none is drug-related. Mr Hopper has completed two years of study towards a Business Management degree with a double major. He has provided a letter from the University of Waikato dated 21 February

2012 confirming his enrolment as a fulltime undergraduate student in the Faculty of Management for the current academic year. I am advised by his counsel that he is proceeding satisfactorily with his studies. He has also submitted a letter dated 20

February 2012 in which he apologises for his offending and expresses himself to be “extremely ashamed and remorseful” about his actions. He says “I promise the Court that I will never do this again”. This letter includes an offer to make amends by undertaking drug counselling and drug tests.

[10] Several letters of support for Mr Hopper have also been submitted. His father, Mr Robbie Hopper, confirms his continuing full support for his son while not condoning his offending behaviour.

[11] A letter from Care NZ confirms that Mr Hopper attended alcohol and drug counselling on three occasions in November and December 2011.

[12] The Provision of Advice to the Courts report dated 14 February 2012 notes that these charges represent an escalation in the seriousness of Mr Hopper’s offending. He is assessed as posing a low and a medium risk of reoffending. A sentence of home detention is recommended but the report writer acknowledges that imprisonment is a possible outcome.

[13] Mr Hopper has been assessed as suitable for electronic monitoring and an address has been assessed as suitable for home detention at 77 Silverdale Road, Hamilton.

[14] Mr Hopper says that he is willing and able to comply with such a sentence.

Statutory purposes and principles : ss 7 and 8 Sentencing Act 2002

[15] The relevant purposes of sentencing are to hold Mr Hopper accountable for harm done to the community, to promote a sense of responsibility, to denounce his conduct and to deter him and others from like offending. Denunciation and deterrence are primary purposes in drug offending. The Court must seek to facilitate Mr Hopper’s rehabilitation and to impose the least restrictive outcome that is appropriate in the circumstances.

Aggravating factors of the offending

[16] These include:

(a) The commercial nature of the offending (now accepted by Mr

Hopper);

(b) The sum of $2,800 cash found at the address together with records of frequent text messages sent and received from the prisoner’s cellphone indicating the extent of the commercial operation and the ongoing nature of the offending;

(c) The presence of cannabis “tinnies” available for immediate distribution and the presence of tin foil available to package loose amounts of cannabis bud found at the prisoner’s address;

(d) The presence of a sword found in a bedroom at the address. [17] There are no mitigating factors of the offending.

Personal mitigating factors

[18] Mr Hopper entered early guilty pleas. It is not disputed that the full discount of 25 per cent in terms of Hessell v R[2] is appropriate.

[19] Mr Hopper has demonstrated remorse in his letter to the Court, his offer to make amends by undertaking drug counselling and drug tests and the evidence that he has received counselling towards the end of last year.

Starting point for sentencing

[20] Counsel are agreed that the offending falls within category 2 of R v Terewi[3]which “encompasses small-scale cultivation of cannabis plants for a commercial purpose, i.e. with the object of deriving a profit”. Terewi was a cultivation case but the categories are regularly applied to commercial sale and supply cases. The starting point for sentencing in category 2 offending would generally be between two

_{and four years imprisonment.}

Starting point

[21] I take a starting point of three years imprisonment being in the middle of the range for category 2 offending in Terewi to reflect the aggravating factors of this offending.

[22] I allow a discount of four months (just over 10 per cent) on account of Mr Hopper’s expressed and demonstrated remorse. Further, to recognise that at the age of 26 years he comes before the Court with no history of drug offending (although not with an unblemished record) and a demonstrated history of achievement in his studies at Waikato University for a Bachelor of Management Studies. Also on the basis of positive references provided including from a past employer Leigh Nicholls who expresses belief that Mr Hopper “will be a fine member of the community”. I trust Mr Hopper will justify that recommendation in future years.

[23] I then allow a discount of 25 per cent for the guilty pleas to reach an end sentence of two years imprisonment. The Court is therefore required to consider a sentence of home detention.

Home detention

[24] Mr Bates for Mr Hopper seeks a non-custodial sentence.

[25] The Crown, while recognising that the sentence may fall within a range where home detention must be considered, submits that the ordinary sentencing response for those who deal in drugs, especially from their home, is a term of imprisonment because of the necessity to deter and denounce such conduct. However, the Crown fairly takes a neutral position on the imposition of home detention in the particular circumstances of this case.

[26] Ordinarily, as the Courts have repeatedly said, those convicted of dealing in controlled drugs will face a sentence of imprisonment. The personal circumstances of the offender must be subordinated to the importance of deterrence. But as the

Supreme Court recognised in R v Jarden[4] this does not mean that personal circumstances can never be relevant.

[27] By a narrow margin I consider that home detention is the appropriate sentence for Mr Hopper in relation to this serious drug offending. Mr Hopper’s counsel and his father plead for “one last chance” for Nicholas Hopper. His father says that he will appreciate it and make the most of it. I hope he is right. This is indeed a last chance, Mr Hopper. Were you to be convicted in future of any drug- related offending you cannot expect such leniency would be extended to you again.

[28] Home detention is not a soft option. It is a demanding and difficult sentence to serve. I consider that Mr Hopper may under-estimate the commitment that will be required to maintain his abstinence from drug use. I intend to impose conditions as part of his sentence to ensure rehabilitative intervention. Strict adherence to these conditions will be essential.

[29] Mr Hopper is fortunate to have continuing family support. Many persons who come before the Court do not have that advantage. The opportunities your family have been able to provide for you by way of education and financial support are significant. They should be turned to good account, Mr Hopper, by your personal efforts. The sentence of home detention I will impose provides a last chance for you to demonstrate that you are willing and capable of taking full advantage of the opportunities that have been provided to you. It goes without saying that will necessitate you disassociating yourself from using, dealing in, or associating with illicit drugs in any shape or form.

Sentencing

[30] Please stand Mr Hopper.

[31] The sentence I impose on you Mr Hopper is 12 months home detention. That sentence is imposed in respect of each of the three charges, to be served

_{concurrently.}

[32] The conditions that attach to your sentence are as follows:

(a) You are to travel directly to 77 Silverdale Road, Hamilton and remain there until the arrival of the monitoring company and the supervising probation officer.

(b) You are to reside at 77 Silverdale Road, Hamilton for the duration of the home detention sentence.

(c) You are to undertake alcohol and drug counselling to the satisfaction of your supervising probation officer and the programme provider.

(d) You are not to possess or consume any illicit drugs.

(e) Any proposed employment or study is to be approved by the supervising probation officer to ensure all monitoring requirements are met.

Forfeiture

[33] On the application of the Crown I order forfeiture of the sum of $2,800 cash found at Mr Hopper’s address on 8 October 2011.

[34] Stand down Mr Hopper.

---

[1] The District Court at Hamilton declined jurisdiction to sentence the prisoner on 24 February

2012 and transferred him to this Court for sentence.

[2] _{Hessell v R [2011] 1 NZLR 607.}

[3] R v Terewi [1999] 3 NZLR 63.

[4] R v Jarden [2008] NZLR 612 at [12].