R v Grant [2015] NZHC 2748 (5 November 2015)

Last Updated: 12 December 2015

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-025-2416 [2015] NZHC 2748

THE QUEEN

v

_{ANDREW JOHN GRANT}

Hearing:	5 November 2015
Appearances:	E Higbee for the Crown F Guy Kidd for the Accused
Judgment:	5 November 2015

_{SENTENCING REMARKS OF MANDER J}

[1] Andrew Grant, you are for sentence on a charge of cultivating cannabis at

Glenorchy, on the 9^th April 2012.

[2] Your offending was detected as a result of a police operation targeting large- scale cannabis cultivation undertaken at various plots situated in wilderness areas in Western Southland and the Queenstown Lakes District. Your co-defendant, Mr Brian McCarthy, was heavily involved in this commercial cannabis operation.

[3] One of these cannabis plots was located near Glenorchy, it became the subject of covert surveillance by the police. On 9 April 2012, two men were captured on surveillance footage, wearing balaclavas, and harvesting the cannabis.

_{You were one of those men, and Mr McCarthy the other.}

R v GRANT [2015] NZHC 2748 [5 November 2015]

[4] The Glenorchy cannabis plot comprised some 47 cannabis plants which yielded approximately 10 pounds of cannabis head. The street value of this cannabis is estimated to be $32,000, if sold in pound lots.

[5] Your involvement in the cultivation of the cannabis at Glenorchy involved you fertilising the cannabis plants at the same time as Mr McCarthy was removing the male plants, presumably in late January to mid February, in addition to your harvesting the cannabis in April.

[6] It has been submitted on your behalf, other than fertilising the plants on one occasion and being involved in their harvesting, you were not otherwise involved in the cannabis plot. It was submitted that Mr McCarthy was the main offender. Your role was said to be limited and that your motivation was to obtain cannabis, which you consume, and that you assisted Mr McCarthy in exchange for cannabis.

[7] It is clear, however, that you involved yourself in at least two of the three stages of the cultivation process. Furthermore, as the Crown submitted at your sentence indication hearing, the cannabis cultivation was a commercial exercise which, having regard to the sophistication of the plot’s construction and design, the fact that you and Mr McCarthy considered you needed to avoid detection by wearing masks, and the number of plants involved, is readily apparent. Therefore, as I told you at your sentence indication hearing, you must be sentenced on the basis, and that whatever your individual motivation - and as I have previously commented, I have reservations in that regard - you actively and knowingly assisted in the commercial cultivation of cannabis. The sentence will reflect that fact.

[8] Your offending falls into the second category described in Terewi, which encompasses small-scale cultivation of cannabis plants for a commercial purpose.¹

The starting point is generally to be between two and four years but where sales are infrequent and of limited extent, a lower starting point may be justified.

[9] In assessing the appropriate starting point, I have also had regard to other cases which provide further assistance in terms of assessing your culpability and the

¹ R v Terewi [1999] NZCA 92; [1999] 16 CRNZ 429 (CA).

appropriate sentence this offending should attract.² In particular, I have had regard to sentences imposed in respect of other offenders apprehended as a result of the police operation, and in varying degrees were involved in the wider cannabis cultivation enterprise.³

[10] I am required in assessing the appropriate starting point to have regard to the principle of consistency in sentencing and that of parity with other offenders. This was an issue which I considered in my sentence indication decision. I do not intend to repeat that analysis. That decision will be annexed to these sentencing remarks and forms part of my reasons for sentencing you today.

[11] As I have already indicated to you, I take a starting point of two years imprisonment.

[12] In terms of personal aggravating features, there are the previous convictions for drug offending to which I have previously referred. In addition to the previous cultivation and possession for supply charges, in respect of which you were sentenced to 9 months imprisonment, there is also a conviction in 1989 for possession for the supply of cocaine, in respect of which a two year sentence was imposed. The prior offending is of some vintage, however, it does need to be recognised in order to reflect the fact that you committed this present offending with your eyes wide open, and in the knowledge of the seriousness of the activity you were engaged.

[13] In terms of mitigation, you are now 54 years of age. You have a partner and a seven year old son, and also older, grown-up children. You have been involved in the local adventure tourism industry, and are a qualified carpenter who often works in the local film industry, building sets on location. The pre-sentence report refers to

_{your continued involvement in solo paragliding tours, showcasing the local area.}

² R v Walpole [2007] NZCA 89; R v Harris [2009] NZCA 471; Larking v R [2011] NZCA 401; R v Fafeita [2013] NZHC 1832; Wright v R [2013] NZCA 210; R v Te Huia [2013] NZHC 1326; Da Silva v New Zealand Police [2015] NZHC 1213; Campbell v R [2015] NZCA 105; O’Driscoll v New Zealand Police [2015] NZHC 346; R v Constable [2013] NZHC 1658; Dyer v New Zealand Police [2014] NZHC 2961; R v Shand [2013] NZHC 3024; Werehi v New Zealand Police [2013] NZHC 2029.

³ R v McCarthy [2013] NZHC 3078; R v Anderson [2013] NZHC 3079; R v Dickson [2015] NZHC 2161; R v Tainton [2013] NZHC 2513.

Quite how that squares with your continued choice to regularly use cannabis may be a matter of some concern. However, you have indicated to the pre-sentence report writer a willingness to participate in counselling or programs to address your use of cannabis.

[14] As I said at the time of providing the sentence indication, extending credit to you to recognise your constructive past since the offending in the late 1980s, before this most recent involvement in drug offending, effectively cancels out any uplift for prior offending that might otherwise have been imposed.⁴

[15] The question of credit for a guilty plea I traversed in my sentence indication decision, and I do not intend to repeat it. The result of your entry of a plea which carried some minimal benefit results in a one month credit. That results in a sentence of one year and 11 months imprisonment.

[16] The Corrections Department has confirmed you have a suitable address available to serve a sentence of home detention. Your continued involvement with cannabis after your earlier convictions is of concern. However, having regard to the vintage of those previous convictions, and your apparently otherwise stable and constructive lifestyle, I am satisfied the purposes of sentencing can be achieved by the imposition of a less restrictive sentence than imprisonment. There does not appear to be any reason why you cannot serve a sentence of home detention at the stipulated address and some difficulties in relation to the isolation of your property appear to have been overcome. As previously indicated to you, I am prepared in the exercise of my discretion to substitute a sentence of 11 months home detention for the one year and 11 month prison sentence that would otherwise be imposed.

[17] I note that 11 months of home detention is a long period with which to maintain compliance with the sentence. It has been recognised that home detention is not an easy sentence. It adequately provides the necessary deterrence and

_{accountability to mark the seriousness of your offending. However, Mr Grant, if you}

⁴ R v Wallace [1999] NZCA 89; [1999] 3 NZLR 159 (CA) at [25]; R v Curtis [1980] NZCA 14; [1980] 1 NZLR 406 (CA); R v Dutch [1981] NZCA 44; [1981] 1 NZLR 304 (CA); McKechie v Police [1989] NZHC 585; (1989) 6 CRNZ 386 (HC) at 388; R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12] and [14]; R v Guthrie [2008] NZCA 439.

fail to comply with the sentence, you will have to be re-sentenced, and imprisonment will be the likely result.

[18] Mr Grant can you please now stand.

[19] On the charge of cultivation of cannabis, you are sentenced to 11 months home detention. The home detention is to be served at the nominated address stipulated in the annexure to the pre-sentence report and will commence on the

12^th November 2015.

[20] The statutory conditions imposed by s 80C of the Sentencing Act apply. Additionally, you are to attend and complete appropriate drug programmes or counselling to the satisfaction of a probation officer, the specific details of which shall be for him or her to determine, and that condition is to apply for six months post the completion of your sentence.

[21] Until the commencement of your sentence on the 12^th November, you are bailed. You are bailed to the address where you will serve the sentence of home detention on the same conditions that you presently have bail. It is regrettable that you cannot commence your sentence immediately and no doubt if there is some difficulty with the commencement on the 12^th November, the matter will have to be brought back to the Court.

[22] Mr Grant, you may stand down.

Solicitors:

Preston Russell Law, Invercargill

AWS Legal, Invercargill

NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT

2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED.

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-025-2416 [2015] NZHC 2269

THE QUEEN

v

_{ANDREW JOHN GRANT}

Hearing:	18 September 2015
Appearances:	E Higbee for the Crown F Guy Kidd for the Accused
Judgment:	18 September 2015

_{SENTENCE INDICATION OF MANDER J}

[1] Mr Andrew Grant is jointly charged with the cultivation of cannabis at Glenorchy on 9 April 2012. He has sought a sentence indication in relation to that charge.

[2] The background to Mr Grant’s arrest on this cultivation charge is a police operation targeting large-scale cannabis cultivation undertaken at various plots situated in wilderness areas in western Southland and the Queenstown Lakes district. Mr Grant’s co-defendants were heavily involved in this commercial cannabis operation.

[3] One of the cannabis plots was located near Glenorchy, and it became the subject of covert surveillance by the police. On 9 April 2012, two men were captured on surveillance footage, wearing balaclavas, harvesting the cannabis. This sentence indication proceeds on the basis that one of the harvesters was Mr Grant. The other, Mr Brian Mr McCarthy, has already been convicted and sentenced in relation to both the cultivation at Glenorchy and his considerably greater involvement in the wider cannabis growing operation.

[4] It is agreed that the Glenorchy cannabis plot comprised 47 cannabis plants which yielded approximately 10 pounds of cannabis head. The street value of this cannabis is estimated to be $32,000, if sold in pound lots.

[5] The Crown and Mr Grant are agreed that Mr Grant’s involvement in the cultivation of the cannabis at Glenorchy involved him fertilising the cannabis plants at the same time as Mr McCarthy was de-sexing the plants, presumably in late January to mid February, in addition to him harvesting the cannabis in April.

[6] It is submitted on behalf of Mr Grant that, other than fertilising the plants on one occasion and being involved in their harvesting, he was not otherwise involved in the cannabis plot. It was submitted that Mr McCarthy was clearly the “mastermind” in respect to this plot, as mirrored in respect of other cultivations at other locations. Mr Grant’s role was said to be limited and that his motivation for being involved was to obtain cannabis, which he consumes, and that he was assisting Mr McCarthy in exchange for cannabis.

[7] It is clear that Mr Grant involved himself at least in two of the three stages of the cultivation process, namely by fertilising the plot at the de-sexing stage of the cultivation and the subsequent harvesting of the cannabis plot. Furthermore, as the Crown has submitted, the cannabis cultivation was a commercial exercise which, having regard to the sophistication of the plots construction and design, the fact that the cultivators considered they needed to avoid detection by wearing masks, and the number of plants involved, is readily apparent. Therefore, Mr Grant must be sentenced on the basis that, whatever his motivation – and I have reservations in that regard in terms of what has been represented to the Court - he actively and

knowingly assisted in the commercial cultivation of cannabis. The indicated sentence must reflect that fact.

[8] The appropriate sentencing guidance is obtained from R v Terewi.⁵ There appears to be consensus that Mr Grant’s offending falls into the second category described in that case, which encompasses small-scale cultivation of cannabis plants for a commercial purpose. The starting point for sentencing is generally to be between two and four years but where sales are infrequent and of very limited extent a lower starting point may be justified.

[9] The Crown accepts that Mr Grant falls within the lower to middle range of category 2. The submission made on behalf of Mr Grant is that a starting point of no more than 18 months imprisonment is appropriate, having regard to his role in the cultivation.

[10] In assessing the appropriate starting point, I have also had regard to other cases which provide further assistance in terms of assessing Mr Grant’s culpability and the appropriate sentence his offending should attract.⁶ In particular, I have had regard to sentences imposed in respect of other offenders apprehended as a result of the police operation, and who to varying degrees were involved in the wider cannabis cultivation enterprise.⁷

[11] I am required in assessing the appropriate starting point to have regard to the principle of consistency in sentencing and that of parity with other offenders. In that regard, a focus of competing submissions has been on the sentence imposed in respect of Mr Anderson, who was sentenced on three charges of cultivating cannabis, six charges of possession of cannabis for sale, and 15 charges of offering to sell

_{cannabis. On behalf of Mr Grant, it has been emphasised that Mr Anderson played a}

⁵ _{R v Terewi [1999] NZCA 92; [1999] 16 CRNZ 429 (CA).}

⁶ R v Walpole [2007] NZCA 89; R v Harris [2009] NZCA 471; Larking v R [2011] NZCA 401; R v

Fafeita [2013] NZHC 1832; Wright v R [2013] NZCA 210; R v Te Huia [2013] NZHC 1326; Da Silva v New Zealand Police [2015] NZHC 1213; Campbell v R [2015] NZCA 105; O’Driscoll v New Zealand Police [2015] NZHC 346; R v Constable [2013] NZHC 1658; Dyer v New Zealand Police [2014] NZHC 2961; R v Shand [2013] NZHC 3024; Werehi v New Zealand Police [2013] NZHC 2029.

7. R v McCarthy [2013] NZHC 3078; R v Anderson [2013] NZHC 3079; R v Dickson [2015] NZHC 2161; R v Tainton [2013] NZHC 2513.

part in harvesting 64 cannabis plants at two separate sites in 2010/2011, and a third harvesting of cannabis in April 2012.

[12] In respect of Mr Anderson’s involvement in the cultivations, a starting point of around two years and three months was indicated by Lang J in a sentence indication he provided. At that time, Mr Anderson’s lesser role in comparison to others involved in the operation was noted. That starting point was uplifted to reflect his subsequent involvement in the sale and distribution of the cannabis. The starting point for the cultivation offending was confirmed by Gendall who, when imposing sentence, described Mr Anderson’s involvement in the cultivation as that of a “foot soldier”.

[13] On behalf of Mr Grant, it was submitted that his offending was of lesser duration, involved one rather than three cultivations, and less plants were cultivated. This, it was submitted, should result in a starting point substantially lower than for Mr Anderson.

[14] On the other hand, the Crown submitted that an important distinction between Mr Anderson and Mr Grant is one that was recognised by Lang J in providing his sentence indication, that was “there [was] no evidence to suggest that Mr Anderson was involved in planting or caring for the plants”.⁸ Whereas, Mr Grant has accepted that he assisted in the fertilising of the plants and that his involvement was not simply confined to providing labour for the harvest, as was the case with Mr

Anderson.

[15] Furthermore, the Crown submitted that Mr Grant is a more mature person than Mr Anderson who was strongly influenced by his relationship with the primary offender, who was his father, and was aged 22-23 at the time of the offending. At this point it needs to be acknowledged that Mr Grant has previous convictions for cultivating cannabis and possession for supply, although these are of considerable vintage, being now some 25 years old. The fact remains, however, that Mr Grant must have been well aware of the nature of the cultivation activity with which he engaged.

[16] Mr Grant sought to also rely upon the indicated sentence in respect of Mr Dickson, being another offender apprehended as a result of the police operation. In respect of that offending, I took a starting point of 18 months imprisonment. However, Mr Dickson’s involvement in the joint possession, with his two far more heavily involved co-offenders, was limited to being, as was described in that case, a “side participant”, who assisted in picking up and dropping off the primary offenders two or three times, and on two occasions assisted in manicuring the harvested cannabis stored on council land in close proximity to his property. The starting point taken for Mr Dickson’s offending reflected his lesser role in what was otherwise a large scale category 3 cannabis operation.

[17] In my view, the starting point has to be one which falls within category 2 of Teriwi, although I consider myself constrained by considerations of parity in respect of the starting point taken in respect of Mr Anderson, to ensure the starting point is at the lowest end of that range. Accordingly, I would take a starting point of two years imprisonment.

[18] In terms of personal aggravating features, there are the previous convictions for drug offending to which I have previously referred. In addition to the previous cultivation and possession for supply charges, in respect of which Mr Grant was sentenced to 9 months imprisonment, there is also a conviction in 1989 for possession for the supply of cocaine, in respect of which a two year sentence was imposed. I have already remarked on the age of this prior offending, however, in my view, it does need to be recognised in order to reflect the fact that Mr Grant committed his present offending with his eyes wide open, and that his position in that regard is to be distinguished from that of the younger Mr Anderson, who was under the influence of his father in terms of his involvement in the cultivation.

[19] In terms of mitigation, I am advised that Mr Grant is now 54 years of age. He has a partner and a seven year old son, and also has older, grown-up children. He has been involved in the local adventure tourism industry, and is a qualified carpenter who often works in the local film industry, building sets on location. As already noted, he is a user of cannabis, and it is submitted that his motivation for involving himself in the present offending can be sourced to that.

[20] As has often been observed, personal circumstances in relation to drug offending are considered to be a subordinate consideration when assessing an appropriate sentence, although it has also been recognised that should not necessarily be a blanket rule.⁹ Extending credit to Mr Grant to recognise his constructive past since the offending in the late 1980s, before this most recent lapse, effectively cancels out any uplift for prior offending that might otherwise have been imposed.

[21] I turn now to the question of credit for a guilty plea. An extensive submission has been made on behalf of Mr Grant as to why he should still receive a discount for the entry of his guilty plea, even at this late hour, with the trial only a week away. That submission is premised on notice being provided to the Crown regarding issue being taken in respect of the admissibility of certain pieces of evidence, and that a formulistic approach to such credit should be avoided in favour

of any discount reflecting all the circumstances in which the plea is entered.¹⁰

[22] The Crown, while accepting that a guilty plea discount of some description is appropriate, observes that Mr Grant’s plea is a late one, and that the implications to him of pleading guilty have been apparent to him for a considerable period of time. The delay in the entry of his plea is observed, in my view accurately, as having resulted from his choice to challenge the evidence in preference to accepting responsibility for his participation in the offending.¹¹

[23] As I noted, when providing a sentence indication to Mr Dickson, it is a somewhat optimistic submission that any substantive reduction should be afforded given the entry of plea so close to the trial, and the lengthy delay in entering that plea, which fundamentally was a matter of choice which rested with Mr Grant in the knowledge of his own culpability. However, as I noted in respect of Mr Dickson, the entry of a plea does still carry some benefit to the Crown and to the system more

_{generally, and so I also extend to him a one month credit.}

⁹ R v Wallace [1999] NZCA 89; [1999] 3 NZLR 159 (CA) at [25]; R v Curtis [1980] NZCA 14; [1980] 1 NZLR 406 (CA); R v Dutch [1981] NZCA 44; [1981] 1 NZLR 304 (CA); McKechie v Police [1989] NZHC 585; (1989) 6 CRNZ 386 (HC) at 388; R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12] and [14]; R v Guthrie [2008] NZCA 439.

¹⁰ Hessell v R [2010] NZSC 135 at [74].

[24] It follows therefore that the sentence which I am prepared to indicate to Mr Grant, this morning, is one of one year and 11 months imprisonment. He is therefore a candidate for home detention.

[25] As I understand the position, he is resident in Queenstown and, this morning, Mrs Guy Kidd has informed me that he has an available residence in Glenorchy. It is not therefore apparent to me why there would be any reason he would not be able to serve a sentence of home detention, although it does occur to me that there might be some question mark regarding the geographical location of Glenorchy. In any event, subject to any contrary evidence being brought to the attention of the Court, and having regard to the vintage of his previous convictions, and his apparently otherwise stable lifestyle apart from this offending in 2012, he appears a likely candidate for such a sentence.

[26] The sentence I can therefore indicate would be one of one year and 11 months imprisonment, in substitution of which, and subject to the preparation and content of the appropriate reports regarding his suitability for such a sentence, and, indeed, the location at which he would serve such a sentence, I am prepared to indicate a sentence of 11 months home detention, if that proves to be feasible.

Solicitors:

Preston Russell Law, Invercargill

AWS Legal, Invercargill