Growcott v R [2015] NZHC 920 (5 May 2015)

Last Updated: 22 May 2015

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-418-000012 [2015] NZHC 920

HAYDEN GROWCOTT

v

_{THE QUEEN}

Hearing:	29 April 2015
Appearances:	J D Lucas for Appellant D J Orchard for Respondent
Judgment:	5 May 2015

_{JUDGMENT OF NATION J}

[1] Mr Growcott has appealed against the cumulative sentences of two years six months’ imprisonment on seven charges of offering to supply methamphetamine¹ and two years five months’ imprisonment on two charges of wilful ill-treatment of animals.² He also appeals against the concurrent sentences of six months imprisonment on two charges of receiving property,³ one charge of possessing a cannabis plant⁴ and one charge of possessing utensils for cannabis.⁵ He is thus appealing against an effective sentence of four years 11 months’ imprisonment.

[2] Those sentences were imposed in the District Court at Greymouth on

_{20 November 2014.}⁶ _{At the same time, fines of $14,302.86 were quashed. In lieu of}

¹ _{Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a).}

² _{Animal Welfare Act 1999, s 129(1)(a).}

³ _{Crimes Act 1961, ss 246 and 247.}

⁴ _{Misuse of Drugs Act 1975, s 7(1)(a) and 7(2)(b).}

⁵ _{Sections 13(1)(a) and 13(3).}

⁶ _{Police v Growcott DC Greymouth CRI-2014-018-339, 20 November 2014.}

GROWCOTT v R [2015] NZHC 920 [5 May 2015]

those fines, Mr Growcott was sentenced to a further three months’ imprisonment. The Judge also banned him for life from owning animals pursuant to s 169(1) of the Animal Welfare Act 1999. He does not appeal against those sentences.

[3] Pursuant to s 244 of the Criminal Procedure Act 2011, Mr Growcott is able to bring this appeal as of right. This Court must only allow the appeal if satisfied that:⁷

(a) For any reason, there is an error in the sentence imposed on conviction;

and

(b) A different sentence should be imposed.

Background

[4] In April 2013, Mr Growcott agreed with an associate, the employee of a farmer at Inchbonnie, that the employee would steal a 2010 Suzuki quad bike valued at $7,000 from the farmer and Mr Growcott and this associate would sell it for

$2,500. Mr Growcott received that quad bike as planned and sold it for $1,300. He later agreed to give his associate $750 in cash and three quarters of a gram of methamphetamine for the stolen quad bike.

[5] Between 23 April 2013 and 1 May 2013, a mountain bike valued at $2,500 was stolen from the rear of a shop in Greymouth. On 22 May 2014, a search warrant was executed at Mr Growcott’s partner’s address in Cobden, Greymouth. Several parts from the stolen mountain bike were located at the address.

[6] During the course of the investigation into the burglary, the police captured text messaging to and from the defendant. That text messaging revealed his dishonesty offending was motivated by an underlying drug habit which also involved the supply and distribution of methamphetamine. The sentencing Judge summarised

the offending as follows:⁸

On that cellphone there were seven occasions when you offered to sell methamphetamine to people that you knew. On two occasions, one being

⁷ _{Criminal Procedure Act, s 250.}

⁸ Police v Growcott, above n 6, at [8] .

the matter I have already mentioned, you offered to sell three quarters of a gram. On one other occasion you offered to sell a quarter of a gram but most of the other occasions it was simply points of a gram and the amounts that you were offering to sell were between $150 up to $750 if it was three quarters of a gram. On one occasion, you offered to sell an ounce of cannabis in the sum of $300.

[7] The Judge described Mr Growcott as “a small low level street dealer” who was “selling the methamphetamine to offset the cost ... of what clearly was a heavy methamphetamine addiction”.⁹

[8] On 22 August 2014 the Police executed a search warrant at Mr Growcott’s mother’s address where he was living at the time. A plastic container with cannabis material in it was found on the table in the living area. Two pipes and a bong that had been used for smoking cannabis were also found at the address.

[9] In terms of the wilful ill-treatment charges, the Judge summarised the offending as follows:

[9] ... For whatever reason, you became aggrieved at cats, a dislike of cats and in January of this year [2014] you caught a cat at your home, you beat the cat to death, most probably with a tomahawk and you kept one of its paws after cutting that paw off as a trophy and you had that hanging in your garage at your home.

[10] In May, in a very premeditated move, you had a cage, you caught a domestic cat in that cage, it was a cat called Midnight. After you caught it, you poured petrol over the cat and you set fire to it but you filmed it for your own sadistic pleasure and it was the filming of that incident which really identified you and identified your offending. You callously left the cat, leaving it for dead, but unbeknownst to you the cat survived but it went back to its owner’s home in a horrific state.

[10] The summary of facts refers to the cat, Midnight, sustaining severe burns on its face and body. Its ears were shrivelled and had to be amputated and the cat’s hearing had been severely diminished. Although the Judge said, at the time of the sentencing it had recovered nearly 80 percent of its hearing. Mr Growcott had taken photographs on his cellphone of the cat on fire.

[11] The charges of wilfully ill-treating animals were laid on 24 May 2014. The methamphetamine, receiving and cannabis charges were laid on 23 August 2014. Mr

⁹ At [8].

Growcott pleaded guilty on 16 September 2014 and was sentenced on 18 November

2014.

Submissions

Submissions for the appellant

[12] Mr Lucas, on behalf of Mr Growcott, submits that the sentence was manifestly excessive for the following three reasons:

(a) the starting point for the offering to supply methamphetamine was manifestly excessive;

(b) the District Court Judge erred in not giving a discount for youth; and

(c) the starting point for wilful ill-treatment charge was manifestly excessive.

[13] Mr Lucas submitted that the Judge was in error in stating that the cases of R v Hoy, R v McGee and R v Paraha indicated that a starting point of three years’ imprisonment was appropriate for the drug offending. ¹⁰

[14] Mr Lucas distinguished R v Hoy on the basis that Mr Growcott’s involvement in drug dealing was “infrequent, sporadic and opportunistic over the period of nine months”, whereas in R v Hoy, the appellant had been found guilty of multiple instances of supply over a two week period and was sentenced on the basis that he was a significant participant in the methamphetamine dealing activities of a syndicate headed by his co-offenders. The starting point on his sentence had been three years.

[15] Mr Lucas also considered that the offending in R v McGee was more serious. It involved a total of 13 charges connected with the supply of methamphetamine and

_{the supply of 4.35g of methamphetamine over a two month period, requiring a}

¹⁰ R v Hoy [2014] NZCA 472; R v McGee HC Whangarei CRI-2010-088-2612, 6 July 2011; R v

Paraha HC Whangarei CRI-2010-088-002612, 7 September 2011.

starting point of three years two months. The total amount of methamphetamine supplied by Mr Growcott was just over two grams.

[16] Mr Lucas also referred to R v Paraha, which he said involved a member of the Headhunters gang offering to supply over four grams of methamphetamine over a three month period as part of an organised drug ring. The starting point of three years was adopted by the High Court.

[17] Mr Lucas referred to two other cases where starting points of two years and nine months imprisonment and two years six months’ imprisonment had been imposed.¹¹ He submitted that based on the infrequent nature of Mr Growcott’s offending, and the case law he had referred to, a starting point of two years and six months’ imprisonment was more appropriate. However, he did accept that a six month uplift for the cannabis and receiving offending was appropriate.

[18] Counsel for the appellant further submitted that the Judge, while acknowledging Mr Growcott was a young person, had been in error by not reducing the sentence having regard to his age and had been in error in stating the Supreme Court’s judgment in Jarden v R meant that his age could not be taken into account. ¹²

He submitted that a discount of two months would have been appropriate and combined with a 25 per cent discount for the early guilty plea, the final sentence imposed should have been one of two years.

[19] In relation to the wilful ill-treatment of animals, Mr Lucas acknowledged the offending was particularly cruel, but said the Judge had erred in referring to the cases of Godsiff v R and Ministry for Primary Industries v Erasmus as having starting points of four and four and a half years’ imprisonment respectively when, in fact, the

starting points were three years and four years respectively.¹³

[20] Counsel for the appellant further submitted that other case law suggested starting points of three to four years were more appropriate where the offenders had

¹¹ R v Matthews HC Whangarei CRI-2010-088-002612, 13 April 2011; R v Tohu HC Whangarei

_{CRI-2010-088-2691, 7 October 2010.}

¹² _{Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [12].}

¹³ Godsiff v R HC Blenheim CRI-2011-406-18, 22 November 2011; Ministry for Primary

Industries v Erasmus [2013] NZHC 281, [2013] NZAR 311.

been cruel to a large number of animals and the starting point in this case should have been two years and nine months’ imprisonment with a discount of two months for Mr Growcott’s youth on the basis the offending was immature. He submitted there should have been a further 20 per cent discount from that starting point for the guilty plea resulting in an end sentence for the wilful ill-treatment offences of two years and one month.

[21] In summary, after aggravating and mitigating factors were taken into account, counsel for the appellant submits that a sentence of two years should have been imposed for the drug and dishonesty offending, and two years and one month for the wilful ill-treatment offending with the additional three months for the non-payment of fines leaving a final sentence of four years four months’ imprisonment.

Submissions for the respondent

[22] Ms Orchard, for the Crown, agreed that the methamphetamine offending fell within band one of R v Fatu, but submitted the distinctions which were being drawn from the cases the sentencing Judge had relied on were not significant and it was appropriate to rely on them as a guideline only. ¹⁴

[23] She submitted the offending was no less serious because it had occurred over a longer period of time. The offending was not just sporadic or spasmodic, rather it indicated Mr Growcott had a ready supply of methamphetamine available to him, and was able to access it when he wanted to. Overall, she submitted that the sentence for the methamphetamine, cannabis and dishonesty offending was appropriate. Mr Growcott had been fortunate that, while Judge Farish thought starting points of 12 months’ imprisonment and three months’ imprisonment for the receiving and cannabis charges were justified, they were adjusted down to a total of four months’ imprisonment applying the totality principle. Ms Orchard also said that a discount of 25 per cent for the guilty pleas had been generous.

[24] Ms Orchard said the Judge was right not to take Mr Growcott’s youth into

_{account to further reduce the sentence. The Judge had adverted to it, but had not}

¹⁴ R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

taken it into account because of his prior history. She submitted that this was the correct approach given the entrenched nature of his offending and his previous convictions.

[25] Ms Orchard further submitted that, when all these factors are taken into account, it is clear the ultimate sentence of two years six months’ imprisonment for the methamphetamine, cannabis and dishonesty offending was not manifestly excessive.

[26] As to the two charges of wilful ill-treatment of animals, Ms Orchard acknowledged that the Judge had made a mistake in the starting point she had taken from Godsiff v R and Ministry for Primary Industries v Erasmus but said the Judge had been right in the circumstances of the case to refer to the principle in s 8(1)(a) of the Sentencing Act 2002 that, where offending is in the most serious category, a sentence close to the maximum should be the starting point.¹⁵ She submitted the starting of three years adopted by the Judge was consistent with the starting points adopted in Burton v Police and Karekare v Police, and with the starting points actually adopted in Godsiff v R and Ministry for Primary Industries v Erasmus.¹⁶

She referred to the particular facts of this case and submitted that, given the purposes

of denunciation and deterrence, a starting point a little over half of the available maximum was appropriate as a stern response to the offending.

Analysis

Drug related offending

[27] In relation to the methamphetamine, cannabis and dishonesty sentencing, I do not consider the Judge made any error. The starting point adopted for the methamphetamine dealing was within the range available to her. It was appropriate

_{not to reduce the sentence on account of his youth because this offending was not the}

¹⁵ _{Godsiff v R, above n 13; Ministry for Primary Industires v Erasmus, above n 13.}

¹⁶ Burton v Police [2013] NZHC 1389; Karekare v Police HC Hamilton CRI-2011-419-000067, 3

November 2011; Godsiff v R, above n 13; Ministry for Primary Industries v Erasmus, above n

13.

result of immaturity on his part, but was associated with his drug use which was well established and acknowledged.

[28] Mr Growcott’s previous convictions included convictions for supplying methamphetamine and amphetamine in June 2007, receiving stolen property, possession of needle/syringe for cannabis, and cultivation of cannabis. The Judge noted he had been subject to sentences of community work and community detention in respect of that offending but also had to be sentenced for breaches of those sentences. The Judge also had information in pre-sentence reports that Mr Growcott had said all his offending, bar the receiving of bicycle parts, was related to his involvement in the drug scene and that essentially, he was a “middle man” who sold small amounts of methamphetamine to associates in return for receiving a small amount to service his own addiction.

[29] While it would have been appropriate for the Judge to consider the prospects of rehabilitation in arriving at the ultimate sentence, this Court considers that an ultimate sentence of two years six months’ imprisonment after the maximum discount for guilty pleas still gave Mr Growcott the potential, during his sentence, to deal with his underlying drug use and to make the changes which would be needed to avoid his involvement in similar offending in the future.

[30] In respect of Mr Lucas’s suggestion that the sentencing was in excess of other sentences imposed in similar cases dealt with my the High Court, I consider the sentencing Judge needed to concentrate on what was appropriate in terms of the guidelines set by the Court of Appeal, rather than comparison with other cases dealt with by the High Court. The Court of Appeal has noted in Brown v R:¹⁷

[6] Guideline judgments are intended to minimise the need to trawl through other cases to obtain guidance as to an appropriate starting point.

[31] Here, the sentence imposed was appropriately categorised as falling within band one of the tariff case of R v Fatu.¹⁸ The Judge sentenced Mr Growcott on the

_{specific facts of the offending and in accordance with the band.}

¹⁷ _{Brown v R [2014] NZCA 93.}

¹⁸ R v Fatu, above n 14.

[32] The sentencing Judge adopted a starting point of three years for the methamphetamine offences, increased it by four months for the receiving and cannabis offences applying the totality principle and by a further two months because of Mr Growcott’s previous offending, thus arriving at a starting point of three years six months for all this offending. She then said she was discounting that sentence by 25 percent for the guilty pleas although her discount of 12 months was in fact slightly more than 25 percent. Her ultimate effective sentence for this offending was two years six months, achieved through a sentence of two years six months on the methamphetamine charges and six months for the cannabis and receiving charges to be served concurrently with the other sentences of imprisonment.

[33] I am not satisfied that there was any error in the sentence imposed for this offending or that a different sentence should be imposed for that offending.

Wilful ill-treatment offending

[34] The Judge was in error in the way she referred to the starting points in Godsiff v R and Ministry for Primary Industries v Erasmus.¹⁹ Those errors alone are not determinative of a successful appeal. It must also be found that a different sentence should have been imposed. The actual starting point for the offending adopted by the Judge was three years. The issue is whether or not that starting point was appropriate in the particular circumstances of this case.

[35] In Ministry for Primary Industries v Erasmus, the defendant had persistently ill-treated cows by breaking their tails. He had also taken to hitting the cows when they were confined in stalls in the milking shed, as a result of which many animals suffered broken legs, severely swollen hocks and compound fractures. In total, 135 cows sustained injuries. The defendant was under considerable stress associated with his farming activities at the time, was on anti-depressant medication and suffered from other health problems. He accepted responsibility and guilt at an early stage, expressed deep remorse. The High Court accepted there was “a psychological

_{dimension” to his offending and the risk of his reoffending was low.}

¹⁹ Godsiff v R, above n 13; Ministry for Primary Industries v Erasmus, above n 13.

[36] On appeal, Priestly J held a merciful sentence of 10 months’ home detention was manifestly inadequate. The starting point of three years six months’ imprisonment was held to be inadequate and Priestly J said that a starting point of four years’ imprisonment should have been taken.²⁰ The end sentence was ultimately increased to two years and three months.

[37] In Godsiff v R, the defendant and an associate had beaten 23 seal pups with a galvanised pipe two or three times on their heads killing them. The defendant was

19 years of age at the time. Mallon J described the offending as “shocking”, but said “there was no element of sadistic violence or prolonged cruelty”.²¹ The offender in that case had killed the seal pups in the misguided belief the seals could be considered pests in the same way as rabbits, possums and feral goats. The Judge referred to a psychologist’s view that the offending had been carried out with relatively little prior planning and with no apparent motive to enjoy the violence. Rather, it had been the result of “ignorance, lack of thoughtfulness and impulsive actions”.²² Mallon J decided an appropriate starting point for the offending was three years’ imprisonment.

[38] It is apparent from these two cases that the number of animals involved is only one consideration when it comes to this type of offending.

[39] In Burton v Police, Whata J set out the following considerations as impacting the starting point in wilful ill-treatment cases:²³

(a) Whether the offences involved wilful acts of violence; (b) The number of animals injured or killed;

(c) The seriousness of the injuries; (d) The degree of sadism or cruelty;

(e) Whether a person suffered emotional harm from watching the animal suffer.

²⁰ _{Ministry for Primary Industries v Erasmus, above n 13, at [26].}

²¹ _{Godsiff v R, above n 13, at [14].}

²² _{At [6].}

²³ Burton v Police [2013] NZHC 1389 at [9].

[40] In Karekare v Police, the High Court upheld a sentence of 18 months’ imprisonment where the defendant picked up a 12 week old kitten as he approached the back door of the home where it was kept, threw it at the back door before throwing it out the back door onto the path in front of the complainant and her five year old daughter.²⁴ When the complainant screamed at the defendant to stop, he had

replied “I don’t care, I’ll kill it”.²⁵ He then picked the kitten up by the neck and

threw it again onto the concrete path, all in front of the complainant’s five year old daughter. Finally, he kicked the kitten in the head, picked it up and put it in an incinerator, covered it with cardboard and lit it on fire. The sentence of 18 months imprisonment was upheld in the High Court.

[41] Turning back to the case at hand, as noted by the sentencing Judge, the offending involved significant premeditated acts of violence with cats that were totally vulnerable. The injuries could hardly have been more serious. One cat was killed. The other was seriously maimed and disfigured. There was a very high level of sadism. The Judge was right to refer to “an unprecedented level of cruelty” in what Mr Growcott did and that the offending was more serious because of the “sadistic pleasure” Mr Growcott attained from what he was doing. While no-one witnessed what Mr Growcott did, the owner of the cat which survived has been psychologically traumatised by seeing the way her cat was maimed. Mr Growcott exhibited a complete lack of remorse or empathy for the animals in keeping a paw of the cat he killed as some sort of trophy and in disposing of the cat he had set fire to without checking to see if it was alive.

[42] This Court considers that a starting point for the offending of three years’ imprisonment was appropriate, and that with a generous discount of 20 per cent for guilty pleas, the ultimate sentence of two years five months’ imprisonment was not manifestly excessive.

_Totality

²⁴ _{Karekare v Police HC Hamilton CRI-2011-419-000067, 3 November 2011.}

²⁵ At [7].

[43] The sentencing Judge took into account the totality principle in considering whether the total end sentence of four years 11 months’ imprisonment for all the offending did truly reflect Mr Growcott’s criminal responsibility. She considered the sentence was required to denounce and deter his offending.

[44] I note the guidance from s 84(1) of the Sentencing Act 2002:

Cumulative sentences of imprisonment are generally appropriate if the offence for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.

[45] I have also considered ss 85(1) and (2) of the Sentencing Act 2002.

[46] It was submitted for Mr Growcott that the totality principle required his age be taken into account, and that the total sentence should not have been so long as to be crushing in effect so as to deter his potential for rehabilitation. I do not consider the sentence can be categorised in this way. Mr Growcott will be eligible to apply for parole after one-third of his sentence has been served. With his imprisonment, he may be able to break his dependence on drugs which he and members of his family acknowledge is at the root of his offending, at least in connection with his drug dealing and dishonesty offences. Mr Growcott does still have the support of his family.

Outcome

[47] The end result is that this Court does not consider that the end sentence imposed on Mr Growcott was manifestly excessive, that there was any material error in the sentence imposed, or that a different sentence should be substituted. The appeal is therefore dismissed.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co., Christchurch