IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-419-47

J PROFNER
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing:	6 July 2010

Appearances: G Walsh for the Appellant
J M O'Sullivan for the Crown

Judgment:	15 July 2010

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 15 July 2010
At 11.00 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:	 Almao Douch, Crown Solicitors, PO Box 19173, Hamilton 3240. Counsel:	G A Walsh, PO Box 1322, Hamilton 3240.

PROFNER V POLICE HC HAM CRI-2010-419-47  15 July 2010

[1]       This is an appeal against a sentence of two years eight months imprisonment imposed on Mr Profner by Judge Burnett on 28 April 2010.  The sentence followed upon Mr Profner’s pleas of guilty on 9 February 2010 to one charge each of:

a)      production  of  cannabis  oil  (maximum  penalty  14  years imprisonment);

b)        cultivation of cannabis (maximum penalty on summary conviction of two years imprisonment);

c)        theft of electricity worth more than $1000 (maximum penalty seven years imprisonment);

d)        possession of equipment for the cultivation of cannabis (maximum penalty on summary conviction of one years imprisonment); and

e)	wilful damage (maximum penalty three months imprisonment).

Facts

[2]       On 25 November 2009 Police executed a search warrant at Mr Profner’s address in Great South Road, Huntly.   Mr Profner was present with his wife and three children.   Police located a hydroponic cannabis operation in the garage, separated into three compartments:

a)        The main compartment contained 12 maturing cannabis plants (60–90 cms) and five small cannabis plants.  These were well-budded, sticky, female plants.   Lighting was attached to a timer on a 12 hour on–
12 hour off setting.   Three speakers were used to play music to the plants.  Also found was a timer and pump (used for irrigation), three transformers, timer plugs, an extraction fan, tubing and glass meter;

b)        The second room contained one cannabis plant (20 cms) and a multi- plug timer with internal grow lights on; and

c)	In the third room were various nutrients with internal lighting, an extractor fan, a transformer and pest control sprays.

[3]       In the laundry was a large blue plastic container with 49 seedlings in separate seedling cubes, with a lamp clipped over the top.  In that room there was also a clone booklet, a container of Clone Start, and a glass bong.

[4]       There were 62 cannabis plants in total which, according to the Summary of Facts (which was not disputed at the time guilty pleas were entered) had a potential yield of $69,040–$248,000 (4–8 ounces per plant at $280–$500 per ounce).  There was also 10 grams of cannabis head in a plastic bag, and 385 grams of dried cannabis in cardboard boxes and plastic bottles scattered around the kitchen and lounge.

[5]       Police found half a teaspoon of cannabis oil on the stove, which Mr Profner said he was just about to consume.  Mr Profner had manufactured the oil himself that day.  There was a pair of kitchen knives under the heated element and some glass bongs near the stove (which had previously been used for smoking cannabis oil). There was also a 20 litre container of isopropyl alcohol three-quarters full in the kitchen cupboard (a precursor substance for making cannabis oil).

[6]       Enquiries  with  Trustpower  showed  that  Mr  Profner’s  electricity  bill  had dropped from $400 in July to $26 in October, and an electrician confirmed that the power supply had been ‘hot-wired’ to bypass the meter.  $2,199.43 of electricity was stolen.   Mr Profner explained that he did not ‘hot-wire’ the electricity himself but knew who did, and was happy to accept cheaper electricity.

[7]       On 26 June 2009 Mr Profner was required to leave his rented property after his offending became known to the owner.   Before leaving he smashed all the windows, mirrors and light-fittings in the house.  The cost of the damage inflicted by Mr Profner on the electrical meter and the house was assessed to be in the range of
$15,000–$20,000.

Basis for Sentence Imposed in the District Court

[8]      Judge Burnett noted that aggravating features of Mr Profener’s cannabis operation included :

a)        the sophistication and scale (62 plants and the potential yield noted above);

b)	the abundance of cannabis material throughout the house;

c)	the consumption of cannabis oil in living areas of the house;

d)	the presence of children in the house;

e)	the regularity of the offending;

f)	the theft of electricity to support the growing operation; and

g)        the presence of isopropyl  alcohol which indicated the potential to make a large amount of cannabis oil.

[9]       Further aggravating features included the additional charge of intentional damage  and  the  damage  to  the  electricity meter.  Judge  Burnett  also  noted  that Mr Profner had 28 previous convictions relating to theft, burglary, obtaining by deception (these being relevant to the theft of electricity count), and four previous drug related convictions from 1999 to the present.   There were few or no gaps in Mr Profner’s offending other than while he was incarcerated.

[10]     In terms of the sentence itself the learned District Court Judge:

a)	held that home detention was not appropriate;

b)      adopted a starting point of three years imprisonment for the manufacturing of cannabis oil and cultivation charges, and reduced that to two years for Mr Profner’s early guilty plea;

c)        imposed   an   eight   month   concurrent   sentence   for   possessing equipment for cultivation;

d)        imposed a cumulative sentence for the theft of electricity, taking a starting point of nine months imprisonment, reduced to six for the guilty plea; and

e)        imposed  a  cumulative  sentence  for  the  intentional  damage  count, taking a starting point of three months imprisonment,  reduced to two months for guilty plea.

[11]     The net result of these steps was a final sentence of two years eight months imprisonment.

Grounds of Appeal

[12]     Mr Walsh for Mr Profner accepted that home detention was not an option in this case. However he says that the end sentence of two years eight months was excessive and that a sentence in the vicinity of 18 months imprisonment should be substituted.  In particular the appeal against sentence is brought on the grounds that:

a)	The starting point of two years six months that was submitted by the

Crown in its District Court submissions was appropriate;

b)        Notwithstanding the quantity of cannabis plants and related materials found at Mr Profner’s home there was no commercial element to his offending;

c)        The sentence imposed for the oil manufacturing should have been concurrent and not cumulative;

d)        The  theft  of  electricity  charge  was  part  and  parcel  of  the  drug offending and the sentence for that should be concurrent; and

e)	The  totality  principle  was  not  applied  in  that  the  sentences  were arrived at in isolation.

[13]     I record at this point that no issue was taken (quite rightly, in my view) with the cumulative sentence imposed in relation to the wilful damage charge and indeed Mr Walsh accepted that Mr Profner was fortunate not to have more serious charges laid against him in that respect.  Nor is any issue taken with the 33% discount that was applied by Judge Burnett across the board for Mr Profner’s guilty pleas.

[14]     In  his  submissions  to  me  Mr  Walsh  acknowledged  that  the  number  of cannabis plants and cannabis related material found at Mr Profner’s address meant that the offending, prima facie, fell within Band 2 of R v Terewi, which is intended to  encompass  the  small-scale  cultivation  of  cannabis  plants  for  a  commercial purpose, that is, for profit.  The Court of Appeal indicated that a starting point of two to four years’ imprisonment is generally appropriate for offending within this band
although a lower starting point may be taken if sales are infrequent and of a limited extent.

[15]     Mr Walsh said that Mr Profner maintained that the cannabis cultivated by him was for personal use only and that it was not a commercial operation.   He referred me to police photographs of Mr Profner’s home which, he said, showed that the  growing operation  was  relatively unsophisticated.    While  accepting that  the production of cannabis oil was a serious matter (oil being a Class B controlled drug and also indicative of a commercial purpose) he said that only a very small amount of cannabis oil was found at the premises.   Thus, he submitted, Judge Burnett’s starting point was predicated on incorrect assumptions as to the commerciality of Mr Profner’s cannabis related activities.

Discussion

[16]     It  may  be  that  there  are  aspects  of  the  particular  component  parts  of

Judge Burnett’s sentence that are open to criticism.   In the abstract, for example,

Mr Walsh is correct to submit that the theft of electricity charge would ordinarily be regarded as part and parcel of the cannabis offending and a concurrent sentence should be imposed.  Similarly, it must be accepted that, even though the three year starting point adopted by the learned Judge was plainly within the relevant Terewi range (band 2), she was jurisdictionally limited, in relation to the cultivation charge, to  a  starting  point  of  two  years.    On  the  other  hand,  it  is  also  relevant  that Judge Burnett took the manufacturing cannabis oil charge as a joint lead offence. That charge of course carries with it a much higher, 14 year, maximum term of imprisonment.

[17]      As with many cases involving an appeal in relation to a sentence that has been imposed for a multiplicity of offences, I consider that a broader approach should be taken.  As the Court of Appeal said in R v Xie:

[16]   The  fundamental  tenet  of  the  totality  principle  is  that  the  final sentence must reflect “the totality of the offending”. How the total sentence is made up has never been important. We cite what this court said in R v Williams CA91/00 31 May 2000:

[11]   We reject the argument that there is a particular way in which total sentences must be put together in respect of multiple offending. The issue is what is an appropriate total sentence for the various charges   which   have   been   admitted   or   proved.   How   that   is constructed in the particular circumstances is a matter of individual discretion   and   assessment.   Sometimes   there   is   advantage   in imposing  cumulative  sentences  on  some  or  all  of  the  charges, whereas others are more appropriately dealt with by one major sentence which subsumes all matters, with concurrent sentences imposed.

[17]   That passage from Williams was cited with approval in R v Barker CA57/01 30 July 2001. In that case, this court, at [10] reiterated the key principles when sentencing for multiple offending:

(a)   With multiple offences the sentence must reflect the totality of the offending;

(b)   In respect of multiple offences, this court will not insist that the total sentence be arrived at in any particular way; and

(c)   The total sentence must represent the overall criminality of the offending and the offender.

[18]   Those principles survive the enactment of the Sentencing Act and indeed are endorsed by it. Having endorsed it, Parliament then goes on in

ss 84  and  85  to  describe  when  concurrent  sentences  and  cumulative sentences “are generally appropriate”. The guidelines do not have the effect of  trumping  the  central  principle  of  sentencing  for  multiple  offending, namely that the total sentence must represent the overall criminality of the offending and the offender.

[19]   In  this  case  concurrent  sentencing  would  have  been  appropriate, provided that concurrent sentencing could lead to an appropriate total sentence.

[20]   In short, therefore, s 84 did not prevent cumulative sentencing in this case.   ...   In circumstances where the total sentence appropriate for the totality of the offending exceeds the maximum penalty for any one offence, cumulative  sentencing  must  be  used.  This  is  a  circumstance  where concurrent sentencing is not appropriate because it prevents the implementation of the fundamental tenets of sentencing for multiple offending: R v Mackwood CA197/95 28 March 1995 at 2.

[18]     So putting to one side the precise means by which Judge Burnett arrived at her final sentence, can it be said that a sentence of two years and eight months imprisonment is manifestly excessive having regard to the totality of Mr Profner’s offending?  In my view the relevant considerations are these:

a)        While it is plain enough that Mr Profner was not engaging in a large scale commercial enterprise, his cultivation operation was moderately sophisticated and could not be said obviously to be consistent with cultivation purely for personal use.  That said, I also accept that the usual paraphernalia associated with a commercial operation, such as tick lists and quantities of cash, were not found at his address;

b)        Although  only  a  small  amount  of  cannabis  oil  was  found  at  the property,  Mr  Profner  admitted  that  he  had  manufactured  oil  and Judge Burnett was entitled to regard the quantity of isopropyl alcohol found at the property as indicative of manufacturing on an ongoing and larger basis;

c)        Whichever way one approaches the issue, the theft of electricity and the quite serious damage to the house are not insignificant aggravating features of the offending;

d)        Mr Profner’s previous offending is also an aggravating feature as is the fact that the operation occurred in his family home which was shared by his young children.  The fact that the offending occurred in the home has, in other cases, been found to be a matter of particular importance, especially in an area where deterrent sentences are required; and

e)        Mr Profner’s early guilty pleas are a significant mitigating feature and

(as Judge Burnett noted) warrant a 33% discount.

[19]     Lastly,  and  in  terms  of  starting  points  in  comparable  cases,  the  Crown referred me to the recent decision in R v Harris  which involved cultivation on a broadly similar scale.  There the Court of Appeal said:

[18]   Given the size and sophistication of the cannabis growing operation and the contents of Detective Lee’s draft brief, it was open to the sentencing Judge to proceed on the basis that the offending involved a commercial element. This was a matter of inference, and it was not necessary for the Crown to provide direct evidence of selling.

[19]   We are also satisfied that the Judge was entitled to adopt an initial starting point above the lower end of category two in R v Terewi (two years). While the starting point of three years was at the upper end of the range available to him, we have not been persuaded that it was beyond that range. An uplift of three months to reflect that the appellant had also allowed his premises to be used by the “local boys” was clearly within the available range, and was probably modest.

[20]     The final sentence of two years and two months was however reduced by the

Court of Appeal due to the particular medical circumstances of the appellant.

[21]     In conclusion, although I am of the view that both the starting point adopted by Judge Burnett and the final sentence imposed by her were on the severe side, I do not consider that it could fairly be said that they were out of all proportion to the totality of Mr Profner’s offending.   As I have noted above, there were some significant aggravating features here and other decisions stress the need for deterrent sentences in cases such as this.  All relevant mitigating features were properly taken into account by the learned District Court Judge.

[22]	The appeal is accordingly dismissed.

Rebecca Ellis J