HASSALL v NEW ZEALAND POLICE [2018] NZHC 487

HASSALL v NEW ZEALAND POLICE [2018] NZHC 487 [21 March 2018]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2017-425-52[2018] NZHC 487BETWEEN JASON RAYMOND HASSALLAppellantAND NEW ZEALAND POLICERespondentHearing: 14 March 2018Appearances: F C D More for AppellantS N McKenzie for RespondentJudgment: 21 March 2018JUDGMENT OF NICHOLAS DAVIDSON JIntroduction[1] Mr Hassall was sentenced by the District Court Judge to 22 monthsimprisonment after he pleaded guilty to one charge of manufacturing a Class Bcontrolled drug, namely cannabis oil.1 He appeals that sentence on the grounds it ismanifestly excessive. In particular, he says the starting point of 27 months adopted bythe Judge was outside the available sentencing range.[2] For the reasons that follow, the appeal is allowed.1 Police v Hassall [2017] NZDC 22774.The offending[3] Mr Hassall took approximately one pound of cannabis leaf to his niece's rentedroom at a boarding house in Invercargill in which approximately 40 persons lived. Hestarted cooking it to produce cannabis oil. This produced a strong chemical smell andthe manager in the boarding house feared there was a methamphetamine lab inoperation. The premises and a nearby school were cleared, and there was a HAZMATresponse. When Police arrived Mr Hassall admitted cooking the leaf to producecannabis oil.[4] To his credit Mr Hassall was candid and admitted that he cooked cannabis oilregularly for people who provided the leaf. He would take half the oil by way ofpayment. He is addicted to cannabis. He acknowledged he sold some for $20 percapsule, to fund his next batch of leaf. He had about 8 mls of oil, worth approximately$150 to $160.District Court sentence[5] The Judge noted Mr Hassall's criminal history, including two convictions forproduction of cannabis oil in 2011 and a number of convictions for possession ofcannabis, most recently in 2017. He has 15 drug related convictions, going back to1996. The convictions include:(a) Possession of cannabis oil in 2011 – six months imprisonment.(b) Production of cannabis oil in 2011 – six months imprisonment.(c) Cultivation of cannabis in 2011 – one year and four monthsimprisonment.(d) Production of cannabis oil in 2011 – six months imprisonment.(e) Production of cannabis oil in 2010 – one month imprisonment.(f) Cultivation of cannabis in 2004 – community work.(g) Cultivation of cannabis in 1998 – periodic detention.[6] The probation report referred to Mr Hassall's "positive beliefs around hiscontinued involvement with cannabis" which led the report writer to conclude he is ata high risk of reoffending, but a low risk of harm. He is ambivalent about any changein his lifestyle, and has no or little insight into his offending and why he might changehis ways.[7] Although no address was available, Mr Hassall's counsel sought leave to applyfor home detention. The Judge was of the view that "the purposes and principles ofsentencing would not be met" by such a sentence and there is still no suitableaddress, so that is not advanced on appeal.[8] Referring to the leading case of R v Wallace and Christie, the Police advocateda starting point of at least two years, and counsel for the appellant advocated, 14months.2 The Judge noted the preparation and planning involved in the offending andthe risk of harm to others at the boarding house. The commerciality was "low level",but the maximum penalty of 14 years "indicates how seriously Parliament considerssuch offending to be", and this offence is part of a pattern of offending.[9] The Judge took a starting point of 27 months, and uplifted that by three monthsfor previous convictions, saying that the uplift "could well have been higher". TheJudge deducted 25 per cent for guilty pleas, rounding down to an overall sentence of22 months. Concluding, the Judge remarked:You have been sentenced previously to a term of imprisonment, albeit forsix months, for similar offending. You do not appear to have learnt from thatprison sentence and have, in fact, gone on to commit a number of furtheroffences.Jurisdiction and approach to appeal[10] Mr Hassall appeals as of right.3 This Court can only allow the appeal if it issatisfied that there is an error in the sentence and that an alternative sentence should2 R v Wallace and Christie [1999] 3 NZLR 159 (CA).3 Criminal Procedure Act 2011, s 244.be imposed.4 If the sentence under appeal can be properly justified having regard torelevant sentencing principles, this Court will not substitute its own views for those ofthe sentencing Judge. The sentence must be either manifestly excessive orinappropriate, if the sentencing Judge's discretion is to be interfered with.[11] It is not enough that the Judge made an error in reasoning: the focus is on thesentence imposed rather than the process by which the sentence was reached.5SubmissionsSubmissions for appellant[12] Mr More for the appellant puts forward one principal argument on appeal: thestarting point of 27 months was too high. Referring to the principles set out bythe Court of Appeal in R v Wallace and Christie he submits there are features of thisoffending that make it less serious than the starting point adopted. The appellant usedrudimentary equipment, a fan, a frying pan and a saucepan, and the amount of oilproduced was 4-5 ounces, or 140 grams.[13] Mr More refers to Barlow v Police, where a 12 month home detention sentencewas reduced to 6 months on appeal.6 The offender faced one charge of manufacturingcannabis oil and one charge of cannabis cultivation (15 plants). There was no evidenceof commerciality, and the appellant was addicted to cannabis. The cannabis oil foundwas a single spoonful. Mr More says that sentence puts this in context.[14] He also cites R v Rhodes, where the offender was growing cannabis in a shed,and had 2.5 pounds of cannabis stored in a plastic bag soaked in isopropyl alcohol, amethod used for making cannabis oil.7 Other than the large amount of cannabis, therewas no evidence of commerciality. Mr Rhodes had one previous conviction forcannabis cultivation. A starting point of approximately 22 months seems to have beenadopted.4 Criminal Procedure Act, s 250.5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].6 Barlow v Police HC Rotorua, CRI-2008-463-76, 1 December 2008.7 R v Rhodes DC Nelson, CRI-2008-042-004151, 18 February 2009.[15] With reference to these cases Mr More submits a starting point of around12 months would have been appropriate. He says the equipment used was basic, andthus the purity of the oils was "suspect" and there was no evidence of commercial gainas the oil was "still being manufactured", and the amount realisable was about $116,eight capsules worth of $20 each.[16] With a three month uplift for previous convictions, and a 25 per cent discountfor his guilty plea, Mr More submits an end sentence of 12 months would have beenappropriate.Submissions for respondent[17] Ms Mckenzie submits this was a commercial operation and that the fact thatthe commerciality was to fund Mr Hassall's own habit is immaterial, as that is commonin drug offending cases.[18] The appellant has 15 drug convictions, some of which are set out above.[19] She refers to Taumata v R, in which a sentence of 30 months imprisonment wasoverturned on appeal and replaced with one of 9 months home detention.8 The chargewas possession of cannabis oil for supply, although the appellant admitted that he hadmanufactured the oil. He had been found in possession of 26 capsules of cannabis oil,a spoon with oil residue on it, large amounts of cash, and cannabis paraphernalia. TheCourt of Appeal inferred that a significant portion of the oil was for personal use ratherthan supply. The initial starting point of 24 months was replaced with one of 15months. Additional charges of possession of a precursor substance and utensilsincreased the notional starting point to 18 months. His previous offending attracted asix month uplift at sentencing, but on appeal this was reversed, the Court of Appealnoting most of the previous convictions were over 20 years old.[20] Ms Mckenzie says that at first blush the starting point here may seem too highin relation to Taumata, however, a number of factors make the present offending moreserious. Taumata had two previous possession charges and one for supplying 22 grams8 Taumata v R [2010] NZCA 107.of cannabis. Here the appellant admitted manufacture for others, and manufacture forsale. He cooked the oil in a boarding house with 30-40 occupants, with his fry-pan ontop of a television stand, in a bedroom sit, potentially endangering their safety withfumes and a fire hazard. Those factors she says require further deterrence. Finally, shesays the uplift of three months for the appellant's significant history of drug relatedoffending was lenient, and could have been much higher.[21] Other sentences have not worked to change Mr Hassall's habits and attitude.In the end, the 22 months sentence was within range, and should not be disturbed.Analysis[22] The case law on cannabis related offending is not easily reconciled. In mostcases where manufacture of cannabis oil is involved, there are charges of cultivation,or at least charges of possession or possession for supply. Rarely is an offendercharged only with manufacture of cannabis oil. While manufacture of cannabis oil isa more serious offence that cultivation – being class B rather than class C drugoffending – in cases where both are present, cultivation is often treated as the lead andmore serious charge.[23] In O'Connell v Police, a starting point of nine months with a three month upliftfor previous convictions was on appeal held to be excessive for manufacturingcannabis oil for personal use.9 There was no commercial element and only a very smallquantity of cannabis oil was produced. The previous convictions were minor, and notfor manufacturing. On appeal a six month starting point with a two month uplift washeld appropriate.[24] In Belk v R, the offender was charged with manufacturing cannabis oil andother less serious cannabis related offences.10 A search warrant was executed at hishome and a shed with a fully functioning hydroponics operation was located. On theproperty a "substantial amount" of cannabis cabbage was located along with 56 gramsof cannabis oil. That amount was in excess of the presumption for supply but it was9 O'Connell v Police [2012] NZHC 3286.10 Belk v R [2012] NZHC 1198.accepted that there was no commercial element and it was for personal use andinformal sharing with friends. For the cannabis oil charge, the sentencing Judge tooka starting point of 28 months imprisonment. That starting point was accepted on appealas within range.[25] In R v Harvey, the offender had 30 mature cannabis plants growing on hisproperty.11 A pot was found containing cannabis oil and various substances andutensils used in manufacturing cannabis oil. 110 grams of loose cannabis leavesand head was found with the cannabis oil manufacturing items, approximately900 grams of cannabis head, valued at over $11,000. The Judge accepted it was asmall scale but commercial operation, and adopted a starting point of 28 monthsimprisonment. This was uplifted by six months to reflect the totality of the offending,which also included possession of a firearm, and a further four months for previousconvictions and offending subject to sentence. After guilty plea discounts the overallsentence was 30 months imprisonment.[26] In R v Bell, the Police executed a search warrant of a 60 acre farm, and foundgrowing facilities for cannabis and more than 10 kg of cannabis head and 5 kg ofcannabis cabbage material.12 A saucepan had traces of cannabis oil, and equipmentand precursor substances used in the manufacture of cannabis oil. The Judge took astarting point of 30 months imprisonment for the cultivation and possession ofcannabis for supply charges. He noted that "any offending relating to the manufactureof cannabis oil would attract a sentence of at least around 12 months imprisonment".The Judge considered a further six month uplift would be appropriate to reflect thatcharge.[27] What these cases and those discussed by counsel show is that there is a broadsentencing range available to Judges in this area, taking into account the overallcriminality of the cannabis operation, the degree of commerciality, and uplift forprevious and associated offending.11 R v Harvey [2013] NZHC 2425.12 R v Bell [2012] NZHC 1733.[28] The submission that there is no evidence of commerciality must be rejectedgiven Mr Hassall's own admissions. He produces oil to sell and to feed his habit. Thedegree of commerciality is low but part of repetitious conduct associated with hishabitual lifestyle. A small portion of the cannabis oil he produces is sold by him, andhe uses it personally.[29] There is no evidence before the Court of the street value of the quantities ofcannabis in this case, but comparing the quantities here with those in other casesthe amounts are moderate to small. I consider Ms McKenzie is right that thecircumstances of the offending, in particular the danger and inconvenience to whichhe put residents in the boarding house, are aggravating and that extends to theevacuation of a nearby school.[30] In my view, this offending is overall less serious than that in Harvey, Belk, andBell above, but more serious than in Taumata. However, I do not think Mr Hassall'sculpability is sufficiently greater than that of the offender in Taumata to justify astarting point of 12 months more than in that case. With consistency of sentencinglevels in mind, as s 8(e) of the Sentencing Act 2000 mandates, reviewing the case lawhas led me to the conclusion that the starting point was outside the available range. Iconsider a starting point of no more than 18 months would have been appropriate.[31] However, I accept that the uplift for previous convictions, given their relevanceand relatively recent vintage, could have been greater, and the Judge was lenient inthis regard. I would apply a six month uplift, resulting in an adjusted starting point of24 months. With the 25 per cent plea discount, that results in an end sentence of 18months.Conclusion[32] The appeal is allowed. The sentence of 22 months is replaced by one of18 months..Nicholas Davidson JSolicitors:Preston Russell Law, InvercargillScholefield Cockroft Lloyd, Invercargill