SOLICITOR-GENERAL OF NEW ZEALAND V LOW AND ANOR HC CHCH CIV 2009-418-000069

SOLICITOR-GENERAL OF NEW ZEALAND V LOW AND ANOR HC CHCH CIV 2009-418-000069 20 August 2009IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV 2009-418-000069BETWEEN SOLICITOR-GENERAL OF NEW ZEALAND Applicant AND DAVID GRANVILLE LOW First Respondent AND MARK REGINALD RAPLEY Second Respondent Hearing: 20 August 2009 Counsel: K J Beaton for Applicant D C Ruth for Respondents Judgment: 20 August 2009JUDGMENT OF FOGARTY J[1] David Granville Low and Mark Reginald Rapley, you appear for sentencing today on very serious charges of cultivating and selling cannabis in large quantities on the West Coast of the South Island. [2] There is no doubt Mr Low that you are the principal offender. You have participated both in a very sophisticated ongoing cultivation of cannabis and selling it in large quantities over a long period of time as has been apprehended and possibly longer than has been proved. [3] Mr Rapley, you are the life partner of Mr Low. It is clear that you have a secondary culpability but you have assisted in the cultivation and to some extent inthe sales and being partners together you Mr Rapley have also indirectly obviously benefited from the cash flow that would come from the sale of cannabis. [4] Cannabis is a controversial drug. There are sections of the community who think it should be decriminalised but the fact of the matter is that it is criminalised and there is ample evidence supporting the status quo at present of the problems that the abuse of cannabis has on many people, particularly young people. Under the normal principles of sentencing the Court of Appeal decision in R v Terewi [1999] 3 NZLR 62 would indicate a starting point for you Mr Low in the region of four years and for you Mr Rapley, because of the combination of your lesser offending and the fact you have no previous convictions down to two to two and a half years. [5] I would normally have followed the guidance of the Court of Appeal in this regard and made adjustments according to aggravating and mitigating features and taking into account your pleas of guilty. But I am not going to go through that analysis because in this particular case there is an extraordinary feature which displaces that analysis, so it seems to me, guided by the decision of the Supreme Court in R v Jarden [2008] 3 NZLR 612. In that decision I had sentenced a drug dealer following the guidelines but not taking into account the very personal circumstances of the suicide of his partner just before the trial commenced and the effect that that had on his life. The sentence was adjusted, albeit by only a small amount, by the Supreme Court for that reason but there were cautionary statements from the Supreme Court to the effect that sentencing Judges should not consider themselves bound by the guidelines when there were exceptional circumstances applying. [6] This is a much stronger case for treating this as an exceptional sentence. This is because of your mental health condition Mr Low. In combination with your apprehension for this offending you lost your parents very quickly, over a period of a fortnight, and a close friend, and all of these matters appear to have compounded into placing you in what your psychiatrist has described as a major depressive episode. You were admitted to the Psychiatric Ward at Grey Hospital, Greymouth, on 11 January because of depressed mood, anxiety and suicidal thoughts. Both your psychiatrist and your psychologist have provided the Court with opinions whichconfirm that we are talking here about a serious episode and your psychiatrist describes it as a "major depressive episode". Your psychologist describes it as a "moderately severe depressive symptoms with associated suicidal ideation and intent". It is necessary for me Mr Low to spell out these personal circumstances because of the exceptional way I am going to treat you today and may I say I certainly understand, I hope the community understands, we are talking about a mental health problem, just as people have physical health problems. [7] Both the psychologist and psychiatrist are of the view that a prison sentence would raise a significant suicide risk. I am of the view that whatever sentence I impose on you Mr Low has to be, as far as possible, proportionate to the culpability of your offending. On the other hand, however, I think it would be wholly disproportionate if I imposed a sentence on you which led to a tragedy whereby you took your own life, something I hope you certainly try to put out of your mind. So for this reason, and this reason alone, I am not sending you to prison. Rather, I am going to follow the recommendation of the probation officer that you be sentenced to home detention for 12 months. This is a serious confinement. You will be confined to your home but you will have, as a result, the continued support of your partner, Mr Rapley, of your friends, and of the mental health clinicians and staff on the West Coast. This judgment should not be treated by the community as some kind of soft sentence. It is in fact the other way, and simply avoiding a totally disproportionate outcome to this most unfortunate set of offending. [8] Your counsel has submitted numerous letters from friends in the community and placed before me your very positive role in the community before this offending emerged. I am not sentencing you softly because of that support from the community. I can sense here today that friends and supporters of you have come from the West Coast. That is to your credit and I hope will go to your rehabilitation into the community. But, have no doubt, that from my mind sitting here as a Judge applying the law, your criminal activities have inflicted harm on the community over a period of time. You will have plenty of time in the remainder of your life to make amends to the community, I am sure.[9] Accordingly, Mr Low I sentence you to 12 months home detention together with the special conditions recommended:• To reside at 54 Tauranga Bay Road, Cape Foulwind, Westport for the duration of the sentence.• To undertake an alcohol and drug assessment, and if found suitable, to attend and complete treatment as directed by the Probation Officer and to the satisfaction of the Probation Officer and the Service Provider.• To maintain ongoing contact with Mental Health Services as directed. [10] Mr Rapley, again partly because I consider it essential at the present time that you are present day by day to support your partner, I am also not going to send you to prison. You stood a good chance under the ordinary orthodox analysis of not going to prison anyway but getting a sentence of home detention. Normally I would suspect if I had done the analysis the other way I would have imposed a sentence of home detention on you short of imprisonment, but a fairly significant one. I am not going to do that because it is important for the two of you being able to live your life earning a lawful income running your homestay business and therefore you need some freedom of movement. It seems to me, accordingly again, that the recommendation of the probation officer, in your case of community work, is applicable but having, as you have heard me, discussed this with Ms Beaton, I think the appropriate combination is community work and community detention which will effectively operate as a curfew on you. [11] For these reasons I am sentencing you to six months community detention and 300 hours of community work. Like Mr Low, I think this is your opportunity to make a contribution to the community to make amends for your participation in criminal activity. In addition there will be a curfew from 7 pm to 7 am. [12] I should say I do all of this against the views of the police who are concerned that this kind of sentence will simply give you further opportunities for offending. Having read the material and the reports I think that is a low risk. I certainly hopethat it is no risk at all. I do not think I need to say anything more about that. You will appreciate that this Court having treated the case as exceptional calls for exceptional conduct on the part of both of you in the future. [13] I turn then to the question of forfeiture and other penalties associated with this offending. This is potentially a complex matter. The Solicitor-General has sought forfeiture of your home. I do have the power to do that but I must exercise that power according to well established principles which have been very carefully laid out by Ms Beaton. Critical upon this is the penalty of forfeiture must not be an undue penalty totally disproportionate to the culpable offending. [14] In this case your property is valuable – in the region of $430,000 and several times the estimated value of the cannabis that appears to have been grown on the property during the period of offending. I am quite satisfied that it would be an undue hardship to forfeit your home and I am not going to do that. However, what I am going to do is ensure that you are deprived of the benefits from this offending. [15] There will be an order that the $17,000 recovered by the police is forfeited. That is pursuant to s 32(3) of the Misuse of Drugs Act 1975. Pursuant to s 32(4) Mr Low your Toyota Landcruiser vehicle is forfeited. [16] The next and more difficulty one is the question of calculating the benefits obtained during the growing period. This is a potentially complex exercise. There are affidavits filed in abundance in support on the file. I am satisfied that this has been analysed correctly according to law by Ms Beaton for the Crown and Mr Ruth and taking into account assessments of the yield together with the $6,000 in cash on the sales, counsel have agreed that the appropriate sum is $55,000. I have sufficiently familiarity with the affidavits and confidence in counsel to judge that that is an appropriate sum and accordingly Mr Low you are ordered to pay the sum of $55,000 as a pecuniary penalty, on the terms annexed. [17] There is an order for destruction of the cannabis and cultivation paraphernalia and equipment seized by the police.[18] The sentences for both Mr Low and Mr Rapley are deferred to commence on Monday, 24 August, that being the date that has been arranged for monitoring bracelets for home detention and community detention to be affixed.Solicitors: Raymond Donnelly & Co, Christchurch for Applicant DC Ruth, Christchurch, for RespondentsTERMS OF PAYMENT OF PECUNIARY PENALTY BY DAVID GRANVILLE LOW(a) That pursuant to s 25(1) of the Proceeds of Crimes Act 1991 the first respondent pay to the Official Assignee on behalf of the Crown a pecuniary penalty of $55,000; (b) That pursuant to s 29(3) of the Proceeds of Crime Act 1991, the property at 54 Tauranga Bay Road, Cape Foulwind, Westport, is available to satisfy the pecuniary penalty; (c) That the first respondent is to pay the pecuniary penalty to the Official Assignee on or before 30 November 2009; (d) That pursuant to s 51 of the Proceeds of Crime Act 1991, in the event the pecuniary penalty is not paid by the first respondent by that date, the Official Assignee is to sell the property in order to satisfy the pecuniary penalty and to account to the first respondent in relation to any balance.