R v Hibbert [2014] NZHC 47 (3 February 2014)

Last Updated: 28 March 2014

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2012-016-000662 [2014] NZHC 47

THE QUEEN

v

_{LANCE HIBBERT}

Charge:

_Plea:

Cultivating cannabis

_Guilty

Appearances: J Rielly for Crown

A W Clarke for Prisoner

Sentenced: 3 February 2014

_{SENTENCING NOTES OF VENNING J}

Solicitors: Crown Solicitor, Napier

A W Clarke Legal, Gisborne

R v HIBBERT [2014] NZHC 47 [3 February 2014]

[1] Lance Hibbert you are for sentence on one charge of cultivating cannabis. You are for sentence in this Court because the District Court Judge declined jurisdiction. The maximum term of imprisonment for such offending is seven years’ imprisonment.

[2] At the time of your offending you and your father were living at a property in Ingram Road, Hexton, Gisborne. The property was an established avocado orchard owned by your father and your stepmother. Just after midday on 10 March 2012 the police executed a search warrant at that property. They found 14 cannabis plants growing in buckets behind a swimming pool area. The plants were approximately two metres tall. Inside an implement shed they discovered a specially built room, built of plywood, that was concealed behind a stack of hay bales. There were 60 cannabis plants being grown under artificial lighting in that room. Those plants were about a metre in height. There was also a large bucket containing four kilograms of freshly picked cannabis leaf. A search of the property revealed a large area where cannabis plants were being grown in small plots in and around the avocado trees in the orchard. There were a further 373 cannabis plants growing there in 55 different plots. They ranged from half a metre to two metres tall. It was also observed that there were gaps where it appeared the plants had been removed. All the plants on the property had been grown from cuttings.

[3] When you were spoken to you accepted responsibility for the cannabis found on the property. You said your intention was to harvest it, to sell it and raise the money required to help your father buy out your stepmother’s share in the property.

[4] You are now aged 30. I note the offending took place almost two years ago.

[5] The pre-sentence report discloses that you have been affected by grief, particularly following the death of your mother when you were about 16. At the time of your offending you were subject to financial and emotional stress, but also you engaged in drug abuse. That was considered to be a major contributing factor to the offending. You said that at the time you were not thinking clearly. You were making bad decisions. From the outset you have expressed remorse for your offending and the impact on your family and your father.

[6] The probation officer has assessed you as at a low risk of reoffending and a low risk of harm based on your limited previous criminal history. The probation officer recommends home detention and community work. I note that in the in-depth pre-sentence report the probation officer has referred to the interviews with a number of other people. I also note and have read the references supplied by people, some friends and others of standing in the community that support you. It is clear that you do have a lot of support in the community and are held in high regard by a number of people. They consider that you have a positive future ahead of you now that you have effectively reached this turning point in your life.

[7] However, the Crown submit that because of its extent, your offending falls into what is known as category 3 in the Court of Appeal decision in R v Terewi¹ and argues for a starting point for offending of five years’ imprisonment. Mr Clarke in his submissions has submitted that the Court should not adopt that approach and that your offending fits into category 2 of Terewi. He argues for a starting point for imprisonment of between three years and three years, nine months. He argues that with appropriate discounts for remorse, your co-operation and your guilty plea, a sentence of home detention, combined with community work as recommended by

the probation officer is available to the Court.

[8] The first task for the Court is to fix the appropriate starting point for your offending. In doing so I of course have regard to the cases that counsel have cited to me.² I have considered those cases and also relevant Court of Appeal authority. It is apparent from a review of those cases that despite the sentences imposed by the Courts, offending of this nature is all too common. Even having regard to inflation and the passage of time since Terewi was decided, given that the evidence at your father’s trial suggested an estimate value of this crop of $600,000 and given the number of plants I accept the Crown submission that this case falls into category 3 of

Terewi. In assessing it in that way I do not overlook Mr Clarke’s submissions as to

_{the extent of the operation, the fact that a number of plants were outside and subject}

¹ _{R v Terewi [1999] 3 NZLR 62.}

² R v Nguyen HC Auckland, CRI-2009-09012932, 6 July 2010; R v Iripa HC Whangarei CRI-

2009-027-2585, 15 April 2010; R v Broughton CA18/05, 19 June 2005; Vernon v R

CA130/2010, 19 July 2010; R v Nuttall [2013] NZHC 544; R v Wallace HC Whangarei CRI-

2009-027-3138, 18 March 2010; R v Ngatai and Murray HC Hamilton CRI-2009-063-288, 22

September 2009;

to elements and predators and the like and also that the $600,000 was very much in the nature of an estimate. But nevertheless, on any view of it, the substantial number of plants, the clear intent behind the offending and, even if one were to divide the estimate by a third or a half, the substantial value of the crop, in my view, this is clearly category 3. However, bearing in mind the matters Mr Clarke raises I accept that the Court can fix a sentence at the lower end of category 3. I take a starting point of four years, two months’ imprisonment.

[9] There are no personal aggravating features which require the Court to uplift that sentence.

[10] I then take into account other factors personal to you which can lead to a reduction in that sentence.

[11] In this case I accept you are genuinely remorseful. You are entitled to a separate discount for remorse. I can understand the background to the offending. However, it provides no proper explanation or justification for what you did. But once apprehended you seem to have been able to understand the significance of what you had involved yourself in and were and are genuinely remorseful for what you did. I gave you credit for that.

[12] I also note that you have been before the Court facing this charge and sentence for almost two years now. That is because of the associated forfeiture application and also the trial involving your father. While it is understandable that there was that delay I nevertheless accept, as indeed Ms Rielly noted, it must have been a matter of anxiety for you that this has been hanging over your head for almost two years. I take that into account to the extent I can.

[13] I decline to take into account the fact that you have also lost $92,000 by way of trying to provide further assistance to your family and the way things have worked out following the prosecution of your father as well. I allow you a four month reduction for the personal features I have referred to.

[14] I then address the issue of your cooperation with the police and the authorities. On the basis of the information before this Court I accept that there is real value in your cooperation and your continued cooperation. On the basis of that I reduce the sentence further by 14 months, which is just over a quarter of the remaining sentence.

[15] I then take into account your guilty plea which, as I noted, was entered at the earliest time available. In terms of Hessell v R³ you are entitled to a 25 per cent discount on the remaining otherwise appropriate sentence.

[16] All of that Mr Hibbert leads the Court to the stage where it is left with a sentence of two years’ imprisonment. That enables the Court to consider whether home detention and the community work is appropriate as the end sentence. I have to say that for offending of this scale it is very rare for a drug offender to receive home detention. However, in your case I am satisfied that there are significant reasons personal to you which mean that home detention and community work sentence is appropriate and is available to the Court.

[17] I accept Mr Clarke’s submission that you have been properly assessed as motivated to undertake programmes and counselling to address your issues and importantly have shown that by the steps you have taken since you have been apprehended.

[18] I also take comfort from the support you have, which is exhibited by the references and by the people in Court this afternoon.

[19] I also note, despite the minor offending you have been involved in in the past you have never been subject to a term of imprisonment.

[20] The Court is always reluctant to sentence someone such as you, a young man with qualifications and hope for the future, to imprisonment if that can be avoided.

³ Hessell v R [2011] 1 NZLR 607.

[21] Mr Hibbert I have to say you were, when I came into Court, right on a knife edge in terms of whether or not imprisonment was the required outcome. By the narrowest of margins I am satisfied that it is not required in this case.

[22] I am going to sentence you to home detention for the full period available to the Court and to recognise the impact on the community of drug offending I am going to combine that with a sentence of community work, which you are going to be required to undertake to address in part at least, the effect of the offending on the community.

[23] Would you please stand. Lance Hibbert you are sentenced to 12 months home detention. You are also to serve 300 hours of community work.

[24] You are to travel directly from the Court to 75 The Esplanade, Gisborne and remain there for the probation officer and security officer to effect electronic monitoring. You are to reside at 75 The Esplanade and not to move from that address without prior approval from your probation officer. You are not to consume alcohol or illicit drugs for the duration of the sentence of home detention. You are to attend and complete alcohol and drug programme counselling with Community Mental Health Addiction Services in Gisborne as directed by your probation officer. You are to attend any other counselling, programme or education that may be directed by your probation officer. As I say you are to undertake 300 hours community work, again as directed by your probation officer.

[25] Mr Hibbert, circumstances, bad judgment and drug addiction led to you being in the position you are in today. The circumstances have changed. You have had the opportunity to change. There is no reason for you to be back before the Court in any

_{way in the future, but ultimately that is up to you. You may stand down.}

Venning J