IN THE HIGH COURT OF NEW ZEALAND
PALMERSTON NORTH REGISTRY
CRI-2012-454-24
CRI-2012-454-25
[2012] NZHC 2938
AARON STEWART HOCKLY
v
NEW ZEALAND POLICE
Hearing:
7 November 2012
Counsel:
O S Winter for Appellant
A M Read for Crown
Judgment:
7 November 2012
In accordance with r 11.5, I direct the Registrar to endorse this judgment
with the delivery time of 11:30am on the 7th November 2012.
JUDGMENT OF WILLIAMS J
Solicitors:
WinterWoods Lawyers, PO Box 12067, Palmerston North
Crown Solicitor, Palmerston North
AARON STEWART HOCKLY V NEW ZEALAND POLICE HC PMN CRI-2012-454-24 [7 November 2012]
Introduction
[1]
The appellant, Mr Hockly, pleaded guilty in the District Court to:
(a)
one charge of cultivation of cannabis under s 9(1) of the Misuse of
Drugs Act 1975; and
(b)
one charge of theft of electricity under ss 219 and 223(b) of the
Crimes Act 1961.
[2]
On the cultivation of cannabis charge, the Judge sentenced Mr Hockly to two
years and four months’ imprisonment. On the theft charge, the Judge imposed a
sentence of four months’ imprisonment (to be served concurrently having already
considered the charge as an aggravating factor of the cultivation) and ordered
Mr Hockly to pay reparation of $1,196.90. Mr Hockly appeals against his sentence.
Circumstances of the offending
[3]
On 28 October 2011, a search warrant was executed at Mr Hockly’s residence
(owned by his employer). Both Mr Hockly and his partner were present. Mr Hockly
informed the police that he was growing cannabis in the double garage at the
address.
[4]
In the garage, the police located a sophisticated cannabis growing operation.
The cannabis was growing in a partitioned off part of the garage, six metres by eight
metres in size. The area was lined with polythene and split into three sections. One
contained seedlings, another contained 70 cannabis plants, and the other contained
90 cannabis plants. Each of the plants were growing in individual planter bags under
lights. The garage and growing areas were powered by electricity from the house.
Mr Hockly had diverted the electricity supply so that he could use the power without
paying for it. It was agreed between the parties that the value of the electricity stolen
was between $1,196.90 and just over $18,500.
[5]
In total, the police discovered 863 cannabis plants comprising 164 cannabis
plants between 60 and 90 cm tall, and 699 cannabis seedlings. The police also
located:
(a)
five heat lamps (one was above the seedlings, two were above each
partition containing the mature plants);
[6]
(b)
seven power supply transformers;
(c)
two carbon filters;
(d)
six pedestal fans;
(e)
dehumidifier;
(f)
electric heater; and
(g)
various extension cords.
Inside the house, police also located a bag of cannabis leaf and instruments
for the consumption of cannabis.
When interviewed, Mr Hockly admitted
cultivating the cannabis and having cultivated previously, but said that he had not yet
harvested any plants from the particular grow located in the garage.
[7]
The Provision of Advice to the courts (equivalent of pre-sentence report)
noted that Mr Hockly has used methamphetamine for eight to ten years and that his
use had escalated in 2010/2011.
The report writer observed that Mr Hockly
intimated that his methamphetamine dependency allowed him to be coerced into
establishing the growing operation. Mr Hockly told the report writer that he had
been drug free since his arrest, had engaged with MASH Trust since April 2012 and
had passed all his random drug tests. The report writer noted that Mr Hockly’s
commitment to rehabilitation and his level of familial support meant that his
likelihood of reoffending was assessed as low and his risk of harm as moderate.
District Court decision
[8]
Mr Hockly was sentenced by Judge Lynch in the District Court on
28 September 2012. At sentencing, both Crown counsel and counsel for Mr Hockly
accepted that the offending fell within Category 2 of Te Rewi. The Crown submitted
that an appropriate starting point was in the region of three years’ imprisonment.
Counsel for Mr Hockly submitted that a starting point of two years and nine months’
imprisonment was appropriate, and argued for a sentence of home detention. He
emphasised that the growing appeared to be mainly directed at Mr Hockly’s own
addiction. In addition, he noted that, since the time of his arrest, Mr Hockly had
taken steps to confront his addiction, reducing his likelihood of re-offending.
[9]
The Judge noted the letters of support from Mr Hockly’s family, and the letter
from Mr Hockly himself describing his descent into methamphetamine addiction.
He also observed that Mr Hockly had tested negative for drugs in May and August.
He considered the primary purposes of sentencing to be denunciation and deterrence,
but he did not overlook the need for rehabilitation or the need to impose the least
restrictive outcome.
[10]
The Judge considered that Mr Hockly’s offending fell at the mid to upper end
of Category 2 of Te Rewi, and he adopted a starting point of three years and three
months’ imprisonment. In making this assessment, he took into account the number
of cannabis plants found, the sophistication and planning, the commerciality and the
theft of electricity. He uplifted that starting point by three months to take into
account Mr Hockly’s “history of dishonesty”. He then deducted six months for
Mr Hockly’s remorse and commitment to rehabilitation. Finally, the Judge reduced
the sentence by eight months to reflect Mr Hockly’s guilty pleas. Thus, the Judge
imposed an end sentence of two years and four months’ imprisonment on the
cultivation of cannabis charge.
[11]
The Judge considered the theft charge to be an aggravating factor of the
cultivation, and giving Mr Hockly credit for his guilty plea, he imposed a sentence of
four months’ imprisonment (to be served concurrently with the sentence imposed for
cultivation) and ordered Mr Hockly to pay $1,196.90 reparation. He also made an
order for the destruction of cannabis and all items used in the cultivation of the
cannabis.
Appeal against sentence
Approach
[12]
Sections 115 and 119 of the Summary Proceedings Act 1957 state this is a
general appeal by way of rehearing. The onus is on the appellant to satisfy me that
the grounds of appeal have been made out and that I should differ from the original
decision, but I must come to my own view on the merits.1
[13]
Section 121(3) provides that in the case of an appeal against sentence, the
court may confirm the sentence; or if the sentence is one in which is “clearly
excessive, inadequate or inappropriate” (“manifestly excessive”) or has no
jurisdiction to impose, may quash or vary the sentence or part of it.
[14]
In R v Monkman, the Court of Appeal explained the term “manifestly
excessive” in the following way:2
Whether a sentence can be said to be manifestly excessive turns on the
maximum sentence prescribed by law for the offence; the level of sentencing
customarily observed with respect to that offence; the place which the
conduct in question assumes on the scale of seriousness of offences of that
type; and the personal circumstances of the offender (to the extent that they
are relevant with respect to that particular kind of offending...
[15]
That said, the focus is on the correctness of the end result, not the process by
which the sentence was reached. As the Court of Appeal observed in Ripia v R:3
... this Court has consistently observed that sentence appeals will almost
always turn on a consideration of whether the final outcome is manifestly
excessive. The route by which the judge reached that outcome will be
relevant to the analysis, but seldom in itself pivotal.
1
Austin, Nichols and Co Inc v Stichting Lodestar [2008] 2 NZLR 141.
R v Monkman CA445/02, 3 March 2003 at [6].
3
Ripia v R [2011] NZCA 101 at [15].
2
[16]
I will first consider whether the starting point and uplifts were too high, with
a view to determining whether the sentence itself is manifestly excessive.
Starting point
[17]
The appellant argues that the starting point of three years and three months’
imprisonment was too high in that the Judge:
(a)
“overstated” the degree of sophistication – counsel argued that the
features that the Judge highlighted in that regard are common features
in the indoor cultivation of cannabis. Counsel argued that few of the
features of more advanced cannabis growing were present in this case:
the supply of water and nutrients hydroponically, electronically
controlled temperature, advanced lighting and high technology
cladding. This, it was argued was a “typical, basic, indoor growing
operation”; and
(b)
double-counted the theft of electricity – treating it both as a feature of
sophistication and an aggravating feature on its own account.
[18]
To determine whether the starting point is too high, it is necessary to look at
comparable cases. It is to be noted that the Crown submitted that a starting point
around three years was appropriate. The starting point adopted by the Judge was
slightly higher at three years and three months. In my view, the following cases are
comparable:
(a)
R v Warren:4 Mr Warren was sentenced on two counts of cultivation
of cannabis, one count of possession of equipment and theft of
electricity. Police executed a search warrant at the rural property
where Mr Warren’s residence. Mr Warren resided on a bus on the
property, which was also used to grow cannabis. Police located a total
of 287 cannabis plants inside the bus, in a crate beside the bus, in a
4
R v Warren HC Hamilton CRI-2011-073-184, 13 September 2011 (Woolford J).
van and in a shed at the back of the garage. But about half were in
poor condition, so Mr Warren was sentenced on the basis that there
were 137 cannabis plants; 63 nearing maturity, and 74 other small
ones. The cannabis plants were grown in plastic-lined rooms, with
extractor fans and heat lamps on timers.
The equipment located
included fertiliser, power boxes, water spray containers, extension
cords and multi-plugs. Woolford J set a starting point of two years
and six months’ imprisonment on the basis that there was relatively
little evidence of commerciality and that half the plants would not
have reached maturity.
(b)
R v Latham:5 Mr Latham pleaded guilty to one count of cultivation of
cannabis and one count of theft of electricity. A police search of
Mr Latham’s house revealed 254 cannabis plants in total of varying
heights. Most of the plants were growing under heat lights in the attic
with a fan and operative timing unit. There were also measuring
containers, plant food, potting mix and similar growing aids in the
attic. The police also located four cannabis buds, two spotting knives,
hand-held scales, tin-foil and snap lock bags in the house. In the
master bedroom, there was a pipe and a canister containing 0.2 grams
of dried cannabis. Electricity had been diverted before the meter to
supply power to the attic (judgment does not say the exact amount but
reparation of $2,200 ordered at sentencing). The Court of Appeal held
that the starting point of three years’ imprisonment adopted by the
sentencing Judge was manifestly excessive. It held that although the
number of plants and other indicia of cultivation were reasonably
significant, the likely yield was modest and the evidence of supply,
rather than sale, to others was minimal.
The Court of Appeal
concluded that the appellant’s offending was on the borderline of
Category 1 and 2 of Te Rewi.
The court considered that the
appropriate starting point, also taking into account the theft of
electricity, was in the region of two years or a little more.
5
R v Latham [2007] NZCA 552.
(c)
R v Shelford:6 Mr Shelford was convicted of one charge of cultivating
cannabis and one charge of theft of electricity.
Mr Shelford was
present when the police executed a search warrant at a property. At
that property, the police located 312 cannabis plants and seedlings in
one room, and 61 larger cannabis plants in another room.
The
electrical wiring had been modified to by-pass the electricity meter,
drawing electricity directly from the mains.
The value of the
electricity was estimated to be just under $1,500. The sentencing
Judge described the cannabis growing operation as sophisticated,
involving a heavy demand for electricity for heating, lighting and
ventilation.
The Judge adopted a starting point of three years’
imprisonment, having regard to the fact that the Mr Shelford was not
the principal offender.
(d)
R v Wallace:7 Mr Wallace appeared for sentencing for charges of
cultivation of cannabis, possession of equipment and material capable
of being used for the purpose of cultivation of cannabis, theft of
electricity and firearms charges. Police executed a search warrant at
Mr Wallace’s home. They located in an area constructed beneath the
home, a sophisticated cannabis growing operation. There were three
distinct rooms which contained 139 cannabis plants in total. Some
plants were growing underneath lights on timers.
There were
extractor fans and a dehumidifier. Mr Wallace had stolen electricity to
the value of $4,900 over a period of about nine months. Gendall J
considered this to be a sophisticated cannabis growing operation. His
Honour adopted a starting point within band two of Te Rewi of three
years’ imprisonment.
(e)
R v Cooper:8 Mr Cooper pleaded guilty to a charge of cultivation of
cannabis.
When searching a property, the police found cannabis
growing hydroponically in two upper rooms.
6
R v Shelford CA175/06, 13 November 2006.
R v Wallace HC Whangarei CRI-2009-027-3138, 18 March 2010 (Gendall J).
8
R v Cooper HC Auckland CRI-2007-044-1261, 15 July 2008 (Keane J).
7
There were 190
cannabis plants of various sizes. Holes had been made in walls to
ventilate the crop and give access to water and electricity. In this
case, counsel agreed that a starting point in the range of two and a half
to three years was appropriate (the mid-point of Category 2 in
Te Rewi). Keane J considered that a starting point of three years’
imprisonment was warranted.
[19]
In my view, the number of plants (863 plants) is an aggravating feature of the
offending, but the majority (699) were seedlings and had not reached maturity. In
addition, this operation is not as sophisticated as other cannabis operations – there
was no hydroponics or temperature control. For what it is worth, Mr Hockly said
that he did not intend to sell the cannabis, but only intended to trade it for
methamphetamine (presumably due to his addiction). There was no other evidence
of commerciality in this case (such as cash, or tick lists) suggesting Mr Hockly had
been selling. In my view, the starting point of three years three months was on the
high side in light of the reviewed cases. I consider that a starting point of no more
than three years’ imprisonment was acceptable.
[20]
In relation to the double counting of the theft of electricity, this point can be
disposed of shortly. First, the Judge noted at [19](d) that the theft of electricity was
“really allied to the sophistication, so I take care not to double count it”. There was
no double-count in any event. Secondly, even if the Judge had considered the theft
of electricity as an indicator of sophistication and an aggravating factor, I consider
that would not be double counting. The reason is that both add to the degree of
culpability in different ways.
Uplift
[21]
The appellant appeals, secondly, on the basis that the uplift of three months to
reflect his previous convictions was not justified. Counsel says that Mr Hockly’s
previous convictions are of little or no relevance because all his dishonesty
convictions are more than 10 years old (the most recent occurring in 2001) when
Mr Hockly was young (about 19 years of age or younger). He has no previous drug
convictions.
[22]
Section 9(1)(j) of the Sentencing Act 2002 provides that the court at
sentencing must take into account the nature, relevance and number of previous
convictions of an offender as a potential aggravating factor.
[23]
The length of time that has elapsed since the last relevant conviction will
affect the weight to be given to previous offending. Where the previous offending
was many years earlier and has been followed by a reasonably constructive lifestyle,
previous convictions may be given little weight or even disregarded. 9 The lapse in
time since the last offending will be of particular relevance where the previous
offending occurred in the offender’s youth.
[24]
Mr Hockly has convictions for disorderly behaviour in 2001, driving with
EBA in 2003 and driving a motor vehicle in a dangerous manner in 2005. His
dishonesty convictions did relate to offending which occurred in 2001 and earlier.
But the Judge appears to have only taken into account the offences that occurred in
2001 and earlier in determining the uplift.10 In my view, the uplift to take account of
non-drug related convictions from 10 years ago was not justified. It may have been
open to the Judge to take into account the two offences from 2003 and 2005, but
once again, they were not drug related and were still relatively old. Overall, I do not
consider that the uplift was warranted on these facts.
Guilty plea
[25]
At sentencing, the Crown submitted that a discount of 15 to 20 per cent only
was appropriate because Mr Hockly’s guilty plea as not entered at first reasonable
opportunity. But in the summary of facts Mr Hockly “acknowledged to the attending
police officers that he was growing cannabis in the garage”. In addition, counsel for
Mr Hockly argued that when he was interviewed by the police following the search,
he accepted that he was responsible for the growing operation. On this basis it was
argued that pleas were intimated on the record at a very early stage, but that there
9
New Zealand Police v Galyer [2012] NZHC 1806; Henry v Police HC Rotorua CRI-2010-463-58,
31 August 2010; R v Wilson HC Invercargill CRI-2008-017-483, 31 March 2009; R v Williams
CA190/90, 16 October 1990.
10
See [5] where the Judge sets out the relevant previous convictions.
were delays in entering plea because of discussions over the potential yield of the
crop and the value of the electricity stolen.
[26]
In R v Hessell, the Supreme Court considered the implications of the
resolution of disputed facts on the discount available for a guilty plea:
[27]
As well, the Court of Appeal’s approach does not allow for a
reduction where a plea is entered only after resolution of disputed
facts. The Court of Appeal’s expectation is that defendants should
plead guilty where their disagreement with the prosecution’s case is
not about their guilt of the offence but relates to the prosecutor’s
statement of facts. This, it is said, should be left to a subsequent
disputed facts hearing. If at that hearing the sentencing Judge rejects
the defendant’s view of the facts, the appropriateness of giving a
reduction for the plea will be reviewed. The last step is less
objectionable. If the circumstances indicate that a defendant is not
fully prepared to acknowledge guilt at the outset, that must be
factored into the sentence. But the requirement that a defendant must
always plead guilty before entering the disputed facts process to get
the maximum discount is too rigid. The better course is to permit
sentencing Judges to assess the value of the plea in the particular
circumstances, without a rigid requirement for application of a scale
of discounts dependent on the exact timing of the plea.
...
The only way in which the many variable circumstances of
individual cases which are relevant to a guilty plea can properly be
identified is by requiring their evaluation by the sentencing Judge,
and allowing that Judge scope in light of the conclusion he or she
reaches to give the most appropriate recognition of the guilty plea in
fixing the sentence.
[27]
In my view, Mr Hockly should be entitled to the full discount for his guilty
pleas because he effectively admitted guilt at the outset. His guilty plea was delayed
was due to disputes over the yield and value of the electricity stolen, factors that had
the capacity to affect sentence. I do not consider that delay in guilty plea reflected a
refusal to accept responsibility for the offending.
Was the sentence manifestly excessive?
[28]
In this case, the Judge imposed a sentence of two years and four months’
imprisonment. From a starting point of three years and three months’ imprisonment,
he uplifted the sentence by three months to take account of Mr Hockly’s previous
convictions, reduced it by six months to take account of his remorse and
commitment to rehabilitation and a further eight months to reflect his guilty pleas.
[29]
The discount for remorse and efforts at rehabilitation was about 15 per cent.
In my view, the starting point of three years and three months coupled with the uplift
for previous convictions made the final sentence of two years and four months’
imprisonment manifestly excessive. Although it could be said that the discount for
remorse and efforts at rehabilitation was generous, it was not so generous in my view
to cancel out the overly stern starting point and uplift. In my view, a starting point of
three years would have been at the upper end of the range available based on the
cases reviewed. An appropriate end sentence would be no more than two years’
imprisonment after allowing nine months deduction for guilty plea and a moderate
three months for remorse and rehabilitation.
[30]
The appeal will be allowed accordingly and a sentence of two years’
imprisonment substituted. Leave is given to the appellant to apply to the District
Court to cancel the sentence of imprisonment and substitute a sentence of home
detention if the relevant requirements of the Sentencing Act are met. Because the
Provision of Advice to the courts recommended imprisonment, there is no home
detention appendix and I have no information upon which to make such a judgment.
___________________________
Williams J