HABIB v NEW ZEALAND POLICE [2018] NZHC 1224

HABIB v NEW ZEALAND POLICE [2018] NZHC 1224 [29 May 2018]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2018-412-000003[2018] NZHC 1224BETWEEN VIGIL HABIBAppellantAND NEW ZEALAND POLICERespondentHearing: 25 May 2018 (By way of AVL)Appearances: D L Henderson for the AppellantR D Smith for the CrownJudgment: 29 May 2018Reissued: 30 May 2018JUDGMENT OF DUNNINGHAM J[1] On 1 December 2017, Judge Turner sentenced Vigil Francis Habib to two yearsand five months' imprisonment, along with an associated order for the forfeiture of$1,445, for possession of cannabis for supply.1 Mr Habib appeals on the basis that thestarting point adopted was too high.2Background facts[2] On 16 March 2017, Police executed a drug-related search warrant ofMr Habib's home address. The search revealed a snap-lock plastic bag containing311.8 grams of cannabis bud. This was stated to have a street value of $3,850 to1 There was also a charge of failing to answer bail.2 The general notice of appeal states the sentence is "harsh, extreme compared to others [and] the cannabis was for medical reasons not for sale". There is no argument that the only actualground of appeal is that the starting point is too high, as the uplift and mitigating factors areaccepted.$4,950 if sold by the ounce. Some of the cannabis was packed into two gram bagsand if sold by this smaller quantity, it would have a street value of $7,775. Mr Habibalso produced a plastic bag containing $2890 in cash. Electronic scales and severalempty snap lock bags were also found at the property.[3] Mr Habib initially explained that the cannabis was for his own personal use toease the symptoms of multiple sclerosis. However, he pleaded guilty to supply andthat conviction is not appealed.Relevant law[4] Section 9 of the Misuse of Drugs Act 1975 provides:9 Cultivation of prohibited plants(1) Except pursuant to a licence under this Act, or as otherwise permittedby regulations made under this Act, no person shall cultivate anyprohibited plant.(2) Subject to subsection (4), every person who contravenes subsection(1) commits an offence against this Act and is liable on conviction toimprisonment for a term not exceeding 7 years.[5] Section 9 of the Act defines the offence of cultivation without differentiatingbetween personal or commercial use. The guideline judgments in R v Dutch3 andR v Terewi4 have provided guidance on sentencing for the different categories ofoffending for the cultivation of cannabis. The three bands set out by the Court ofAppeal in both decisions are:5Category 1 consists of the growing of a small number of cannabis plants forpersonal use by the offender without any sale to another party occurring orbeing intended. Offending in this category is almost invariably dealt with bya fine or other non-custodial sentence. Where there have been supplies toothers on a non-commercial basis the monetary penalty will be greater and inmore serious cases or for persistent offending a term of periodic detention oreven a short prison term may be merited. (It is to be noted in this connectionthat there is no separate offence in relation to a class C drug of supplying orpossession for supply, as opposed to selling or offering for sale or possessionfor sale (s 6(1)(e) and (1).)3 R v Dutch [1981] 1 NZLR 304 (CA).4 R v Terewi [1999] 3 NZLR 62 (CA).5 R v Terewi, above n 4, at [4].Category 2 encompasses small-scale cultivation of cannabis plants for acommercial purpose, ie with the object of deriving profit. The starting pointfor sentencing is generally between 2 and 4 years but where sales areinfrequent and of very limited extent a lower starting point may be justified.Category 3 is the most serious class of such offending. It involves large-scalecommercial growing, usually with a considerable degree of sophistication andorganisation. The starting point will generally be 4 years or more.[6] The Court of Appeal in R v Gray confirmed the Terewi guidelines apply tooffences involving the cultivation and supply of cannabis:6The offences of cultivation and possession for supply often relate to differentstages in the same operation conducted by the same person The twooffences are frequently described as associated or interrelated and this Courthas recognised 'a close analogy' between growing and dealing for profit no distinction should be made between selling and cultivating cannabis.District Court Sentencing[7] Judge Turner began by stating the facts as summarised above. He also notedthe advice from counsel, that the supply was only "to a discrete group of associates".His Honour then noted that Mr Habib had appeared before the Court previously on17 drug charges between 1996 and 2015. Four of these were for drug dealing.[8] The Judge had regard to a pre-sentence report prepared prior to sentencing.The report noted what the Judge described as Mr Habib's "appalling performance onparole between August 2014 and December 2015" and it recommended imprisonment.[9] For the starting point, Judge Turner considered the offending fell within thelower end of Category 2 of the Terewi guidelines. His Honour set a starting point of30 months' imprisonment.[10] His Honour went on to uplift the sentence by four months for previous drugoffences. From that, a reduction of 15 per cent for health issues and a guilty plea(albeit at a belated stage) was made. The final sentence was thus 29 months.6 R v Gray [2008] NZCA 224 at [10]-[12].SubmissionsAppellant's submissions[11] The appellant submits that the offending falls within what the Courts havesometimes referred to as the 'twilight zone' of cannabis cultivation offending thatstraddles Category 1 and Category 2.7 Accordingly, the appellant states thatJudge Turner erred in setting a starting point of 30 months when comparable caseswere less than 24 months.[12] The appellant referred to several such cases:(a) In Rauhihi a starting point of 15 months' imprisonment was takenwhere there were 72 cannabis plants and 326 grams of cannabis, worthapproximately $6,500.(b) In R v McGilp the defendant was found with 98 cannabis cuttings andseedlings, 58 cannabis plants and 201 grams of cannabis material andcultivation paraphernalia. The Judge agreed that the offending was atthe lower end of Category 2 but cited "exceptional circumstances" ofthe case justified a lower starting point of 15 to 18 months.8(c) In Devereux v Police 110.7 grams of cannabis, scales and $3,120 wasfound. A starting point of 18 months was adopted.9(d) In Kennedy v Police 480 grams of cannabis head, scales and almost2.9kg of cannabis leaf attracted a starting point of two years.10[13] Given the similarity between these cases and the present facts, the appellantsubmits that a starting point of between 15 and 24 months should be adopted.7 See, for example, R v Rauhihi HC Palmerston North CRI-2008-031-1438, 1 May 2009 at [23].8 R v McGilp (2006) 23 CRNZ 526 (CA).9 Deveraux v Police [2017] NZHC 167.10 Kennedy v Police [2017] NZHC 3066.Respondent's submissions[14] The respondent submits the starting point of two years and six months'imprisonment was within the available range and the Judge has made no error insentencing. The respondent points to the Practice Note on Sentencing whichprovides:11Generally where a Court of Appeal guideline decision is available, referencesto other decisions will not be of assistance.[15] Judge Turner expressly referred to the guideline decision, Terewi, and held thepresent offending fell within the lower end of Category 2.[16] The respondent submits that while the appellant can point to a range ofdecisions where lower starting points have been adopted, there are ample decisionswhere comparable starting points have been adopted and approved by the Court ofAppeal:(a) In Tomars v R, where 42 grams of cannabis head was located, the Judgeadopted a starting point of three years' imprisonment.12 The Court ofAppeal upheld this as, although it was at the top of the range, it was notmanifestly excessive.(b) R v Reardon was a case where the appellant had pleaded guilty to anumber of drug dealing charges.13 Police also found $5,000 in cash.The Court of Appeal accepted a starting point of three and a half yearswas available incorporating the appellant's previous convictions.(c) In Codlin v R the appellant pleaded guilty to charges of selling cannabisand possession for supply.14 Upon execution of a search warrant thePolice located a total of 32.3 grams of cannabis and $1,970 in cash.The Sentencing Judge found this was at the lower end of Category 211 Practice Note on Sentencing [2003] 2 NZLR 575 at [2.2(h)].12 Tomars v R [2013] NZCA 54.13 R v Reardon CA 459/2003, 19 April 2004.14 Codlin v R [2012] NZCA 71.offending. A starting point of two years and nine months was adoptedwhich the Court of Appeal held was within the range available.(d) In Lord v R, where a starting point of two years nine months'imprisonment was approved, the Court of Appeal commented indismissing the appeal:15[22] On this range of authorities the Judge could have taken astarting point of below two years nine months. But that does not meanthat his starting point was beyond the available range. The Judge onthese facts was entitled to place the offending in the lower middleband of Category 2 in Terewi.[17] On that basis, the respondent submits by comparison to similar cases thestarting point of two years six months was within the range available to the sentencingJudge.[18] In any event, even if the starting point was high, the uplift for previousdrug-related offending was modest and 15 per cent credit for a guilty plea on the dayof trial and for health issues was generous. Looked at in totality the end sentence oftwo years five months' imprisonment was within the available range and could not besaid to be manifestly excessive.Discussion[19] The appellant essentially argues that this is offending that falls within theexception to Category 2:where sales are infrequent and of very limited extent a lower starting pointmay be justified.[20] As the Court of Appeal noted in R v Edmonds:16 the categories are for guidance in assessing comparative culpability, theydo not fix it. For offending falling within category two the judgment in Terewistates that the range available to a sentencing judge is generally between twoand four years before adjustment for special factors. But there is the additionaldirection that if the commercial element is small a lower starting point mightbe justified. The decision does not state that for all cannabis offending having15 Lord v R [2012] NZCA 276.16 R v Edmonds CA23/02, 28 May 2002 at [9].a commercial element, however small, the sentence must be no less thanimprisonment for two years.[21] However, I agree with Judge Turner's view that this offending is Category 2offending, encompassing small-scale cultivation of cannabis plants for a commercialpurpose. The presence of bags and scales, along with a quantity of cash, support thecommerciality of the supply and it was open to him to place this offending withinCategory 2 of Terewi.17 That said, I agree with Mander J's observation in Devereux vPolice, 18 that there is still a fundamental need for some level of consistency in thestarting points adopted for like offending.19[22] In Devereux, Mander J reviewed cannabis sentencing decisions. His Honourdiscussed a range of cases which fell within the description of a Category 2 offence,but noted that some adopted a starting point below the two to four-year bracket.However, equally, there have been several appellate decisions which adopt theorthodox approach of Terewi as referred to by the respondent. The same issuesconfront the Court in this case.[23] I accept that the cases referred to by the respondent represent more seriousoffending, involving charges of sale and, in a number of the cases, the operation of a"tinny" house. On the facts, it is difficult to distinguish this offending from the casesthe appellant refers to which have attracted starting points of less than two years.Accepting that Mr Habib's sales were to a limited group of associates and involved asingle charge of possession for supply, I consider a lower starting point should havebeen selected by the District Court to recognise the principle that consistency shouldbe achieved in sentencing like cases. A starting point of two years would better reflectthe level of his offending when regard is had to cases that involve a similar level ofseriousness, while still reflecting the guidelines in Terewi.[24] Accordingly, I take a starting point of 24 months' imprisonment. I accept theuplift of four months for the appellant's previous offending was favourable to him butI do not propose to change it. Similarly, I consider the 15 per cent discount favourable17 Sentencing Act 2002, s 8(e).18 Devereux v Police, above n 9.19 Even taking into account that it was agreed that only half the cash should be forfeited as proceedsof cannabis dealing.to the defendant, but again I would not change that. Taking those adjustments intoaccount, a term of 24 months' imprisonment is the end result.[25] The appeal is therefore allowed. The sentence of two years and five months'imprisonment is set aside and substituted with one of two years' imprisonment on thecharge of possession of cannabis for sale. Standard release conditions are to apply. Inall other respects, the District Court decision remains undisturbed.Solicitors:Deborah Henderson, Barrister, DunedinRPB Law, Dunedin