Harrison v Police HC Palmerston North CRI 2011-454-8

[2011] NZHC 239

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2011-454-8

BETWEEN  ALLEN GEORGE HARRISON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         23 March 2011

Counsel:         F D Steedman for Appellant

M G Sinclair for Respondent

Judgment:      23 March 2011

ORAL JUDGMENT OF MILLER J

[1]      Mr Harrison appeals against an effective sentence of two years imprisonment for cultivating cannabis and possessing it for supply.

[2]      The Judge summarised the facts as follows:

[3]       The circumstances were that on 15 March 2010 the police executed a search warrant at your home address in Feilding. There was located at the address a purpose built shed made of cool store building materials and that was attached to the rear of a garage on the section. That shed was divided into two rooms and the only way into it was from within the garage. The doors, as the photograph show, were padlocked and clearly security was a factor which you had in mind when constructing this arrangement.

[4]       The police found the cannabis plants growing in a growing operation within that back area, that new area of the shed. There were 11 cannabis seedlings growing under lights in one room and 16 more mature plants under lights in the other. The more mature plants had begun to bud and were only days away from being ready for harvest.

[5]       There was an electric fan and although Mr Steedman took issue with there being an extractor fan, the photograph reveals that there was something akin to that built into the wall of the shed at one point. Certainly there appeared to be an attempt to maintain a constant temperature and humidity.

HARRISON v NEW ZEALAND POLICE HC PMN CRI 2011-454-8 23 March 2011

[6]       The plants were said to be well tended and watered and there were a number of additives, nutrients and formulas located within the vicinity of the plants.

[7]       The police located a plastic zip lock bag containing approximately

28 grams of dried cannabis head in a bedroom of the dwelling and there were text messages on your cellphone showing that you had been involved in supplying cannabis to associates in exchange for money.

[8]       It is said in the police summary that the amount you supplied each time would vary from tinnies containing enough cannabis to form approximately three cigarettes to half ounces and full ounces. It was said in the   summary   that   an   ounce   of   cannabis   was   commonly   sold   for approximately $300.

[3]      The Judge characterised the operation as reasonably sophisticated;   it used lights, a concealed growing room, and a security system.  The operation as a whole indicated that Mr Harrison was resourceful and well capable of subterfuge to conceal offending.

[4]      The Judge accepted that Mr Harrison was a heavy user, and addressed a degree of controversy about the yield of the plants, saying that it was impossible to be precise.   No evidence was led on the point.   The Judge simply concluded that there clearly were supply elements to the activities, the police having found 11 seedlings and 16 more mature plants, and Mr Harrison had admitted possessing the

28 grams of dried cannabis for supply.  I adopt the same approach, which favours

Mr Harrison.  I observe that there is evidence, including text messages, of dealing.

[5]      The pre-sentence report had some positive things to say.  Mr Harrison runs a lawnmowing business which supports his longstanding partner Ms Gates and their four-year old child.  He had a difficult upbringing, his parents both being alcoholic and the family environment in some respects abusive.  It had been 14 years since his last conviction.   He is now 33.   There were references describing him as a good parent and a caring person, and he had referred himself for drug assessment.   His partner indicated that his cannabis use had always been an issue, but he now recognised it and for the first time was making a serious attempt to quit.

[6]      The Judge sentenced the two offences concurrently.   For the lead offence, cultivation, he adopted a three-year starting point which took the possession for supply charge into account.  He did not identify any specific aggravating features,

although the pre-sentence report spoke of an unhealthy sense of entitlement to cannabis use and there were a few previous convictions one of which, for a very serious driving offence involving alcohol, had resulted in imprisonment.  The pleas had been entered early, while sentencing practice was governed by the Court of Appeal judgment in R v Hessell, so he deducted one year for them.  Although there were positive references which the Judge said he took into account in sentencing, no further allowance was made for mitigating factors.  The resulting sentence was two years  imprisonment,  some  six  or  more  months  higher  than  that  suggested  by Mr Steedman.  A concurrent sentence of 15 months imprisonment was imposed for the possession for supply charge.

[7]      The probation officer opposed home detention, finding the address unsuitable because the offending occurred there and Mr Harrison unsuitable because of his attitude;   he was unlikely to observe the conditions, which would include a prohibition on using alcohol and drugs.  The Judge decided that home detention was unsuitable for two reasons:   first, the element of sophistication, and particularly concealment,  which  indicated  Mr  Harrison  might  use  subterfuge  to  conceal offending, leading the Judge to conclude that he would not comply with the conditions of the sentence;  and second, the commercial dimension of the offending.

[8]      On appeal Mr Steedman pointed out that because of a District Court decision to decline jurisdiction Mr Harrison had had to wait 11 months for sentencing, although he had indicated immediately after arrest that he would plead guilty.  The probation officer misunderstood what Mr Harrison was trying to say;   he was not exhibiting a sense of entitlement but saying how difficult it was to  go without cannabis.  In the result, his motivation to change was underestimated.  The address was suitable for home detention and so was Mr Harrison.  He had not been convicted of any offence since 1996, and he had no prior drugs convictions.  The starting point was too high.  Counsel noted that the shed was only months old and the dealing had involved three persons, all related.  Home detention ought to have been imposed in the circumstances.   Mr Harrison has prospects of rehabilitation, he enjoys family support and responsibilities, and he is a contributing member of the community.  In

similar circumstances some offenders locally have been given much more lenient sentences.[1]

[1] R v Withey DC Dannevirke CRI 2011-010-38, 7 March 2011, R v McIvor HC Palmerston North

[9]      It is important to say that the question on appeal is not whether had I been sentencing at first instance I might have imposed a lesser sentence.  The question is whether  the  sentence  that  was  imposed  was  clearly excessive.    I accept  that  a sentence may be clearly excessive where the Judge chose imprisonment rather than an equivalent term of home detention.

[10]     I am not persuaded that the starting point, which is in the middle of band two Terewi, is excessive in itself, although it is at the upper end of the available range. The plants indicated an  operation of modest scale,  and the Judge accepted that Mr Harrison was a heavy consumer of his own product, but the operation was both commercial and intended to be enduring, and the possession for supply charge was properly sentenced concurrently so must result in a modest uplift in the starting point.

[11]     The central question on appeal is that of Mr Harrison‟s attitude, since that informed the Judge‟s decisions to deny him more credit in mitigation and to refuse him home detention.

[12]     As to that, the probation officer recorded:

... he agreed with the need (Alcohol and Drugs) for drugs stating that, “[I was] smoking a lot, 15 x joins [cannabis] a night, to relax me and calm me down.   Yes, obviously it‟s illegal, everyone has a poison, this [smoking cannabis]  was  mine.    Once  my  conviction  in  1995  happened,  [driving causing death], I gave up alcohol and became a heavy cannabis user since my friend‟s death [victim of his offending].   It‟s been horrible going cold turkey and being without [cannabis].  I get toey every now and then,” which is of grave concern.

[13]     The probation officer went on to observe in rather elliptical language that

Mr Harrison “portrayed an unhealthy sense of entitlement (Offending Supportive

Attitudes  and  Entitlements)  denouncing  that  his  offending  was  pre-planned  and

retorted  that  he  had  been  „dobbed in‟ to  the  authorities.”    I  observe  that  the conclusion that the probation officer has drawn does not necessarily follow from the premises.  The probation officer went on to conclude that the extent of Mr Harrison‟s cannabis use was consistent with addiction.

[14]     The probation report clearly does indicate that Mr Harrison has a substantial and longstanding addiction that has yet to be addressed and is likely to reoffend without treatment.  However, it is not clear that he did display an ongoing sense of entitlement and the comment that the probation officer found of such grave concern merely indicated that he had been going without cannabis and was finding it very difficult.   I observe that the probation officer also recorded that he showed some readiness to address his offending needs.   In the circumstances I accept that the Judge erred by not giving more credit for mitigation factors.

[15]     The mitigating factors were substantial.  References indicate that Mr Harrison has excellent qualities, is self-employed and he has a stable family.  As noted, he had a difficult background.   His good record since 1996 permits him some claim to previous good character.  While indicating that he took some of these matters into account and accepting that the sentence was a difficult one, the Judge did not adjust the sentencing calculation, apparently because any allowance for those factors was offset by Mr Harrison‟s sense of entitlement to use cannabis and his unaddressed addiction.  As noted, I take a somewhat different view of the sense of entitlement, and I consider that Mr Harrison was in any event entitled to real credit for these mitigating factors.   That being so, I accept that an allowance should be made on appeal.  I will allow eight months, bringing the end sentence to 16 months.

[16]     However,  I  am  not  persuaded  that  the  Judge  erred  by  refusing  home detention, albeit that my reasons differ somewhat from his. I am prepared to accept that the risk of continued growing and dealing can be addressed.  My concern is with the addiction.  My view might be different had Mr Harrison taken advantage of the remand to complete a serious treatment programme, but all he did was to refer himself to the Alcohol and Drug Service on 4 May 2010 and attend two counselling sessions, with a few more to come.   This MidCentral Health described as “brief intervention”.  That is nowhere near enough to satisfy me that a community-based

sentence will succeed.  Even assuming that he is genuinely committed to giving up cannabis, it would be difficult for Mr Harrison to comply with the conditions of home detention in circumstances where the addiction has not been addressed.  Drug offending could easily continue at the address.  Mr Harrison obviously has associates who are supportive of his offending and Ms Gates has not been able to stop it, although she does firmly oppose his cannabis use.  I heard an eloquent plea from her today.  She says that for the first time he has made a real commitment to stop using cannabis.  I accept that he has made that commitment, but experience teaches that without professional assistance drug addicts routinely fail to honour their commitments.  I note too that the Court of Appeal has repeatedly made it clear both that an appellate Court will not ordinarily second-guess the sentencing Judge in marginal  cases  and  that  home  detention  need  not  be  preferred  in  cases  where

denunciation and deterrence assume importance, as they do in cases of drug dealing.2

[17]     Accordingly, the cultivation sentence is set aside and a sentence of 16 months imprisonment is substituted.

[18]     The summary maximum for the possession for supply charge was 12 months imprisonment.  The sentence of 15 months is accordingly quashed, and a sentence of eight months imprisonment is substituted.

[19]     To that extent the appeal is allowed.

Miller J

Solicitors:

Crown Solicitor‟s Office, Palmerston North for Respondent

2      R v D [2009] NZCA 120

CRI 2010-054-2878, 16 February 2011 R v McIntyre DC Palmerston North CRI 2010-054-2879,
4 February 2011.