Fine only for growing cannabis for personal use

The Christchurch High Court has ruled that growing cannabis for personal use normally warrants just a fine, with a community sentence being quashed on appeal.

This reinforces court precedents of a fine being appropriate if the cannabis was being grown for personal use.

Note that growing cannabis for supply is dealt with much more severely.

Also note that an example of a case involving repeat offender found that, while the prison sentence imposed was inappropriate and was quashed, a community sentence was justified (see below).

Judgment of Nation J – Riches v Police [2017] NZHC 2035 – 24 August 2017

[1] Is a fine the normally appropriate penalty for cultivating a small number of cannabis plants for personal use using hydroponic facilities? That is the issue raised by this appeal.

[2] The summary of facts described how the Police visited the appellant, Mr Riches, at his home in Christchurch. He told the Police that someone they were asking about had come over to his place to smoke cannabis. A warrantless search power was invoked. The summary then recorded:

Located in the garage was a grow room fitted out with lamps, heat sources
and ventilation. The garage contained 6 mature Cannabis plants
approximately 1 metre in height with 2 smaller plants approximately 20
centimetres in height.

[3] Mr Riches pleaded guilty quite promptly on a third Court appearance. He was then remanded for a pre-sentence report and was sentenced on 12 July 2017.

[4] The District Court Judge referred to the number and description of the eight plants. He noted that Mr Riches had told the Police the cannabis was for his personal use and said “[t]his cultivation appears to have been accepted by the prosecution as being non-commercial”.

[5] The Judge noted Mr Riches was appearing before the Court at aged 29, for all intents and purposes as a first offender.

[6] The Judge also noted the submission for Mr Riches that the offending was a category 1 offence in terms of the guidelines in R v Terewi. He referred to the probation officer’s opinion that there was a minimal or low risk of reoffending but also the probation officer’s opinion that Mr Riches had issues with cannabis use.

[7] The Judge noted that community work was not recommended because Mr Riches’ employment could make completing that work difficult. He did not consider imprisonment was required and said he was therefore “prepared to accept the recommendation of the probation officer as appropriate”. He convicted Mr Riches and sentenced him to four months’ community detention, to be served by way of a curfew at his home from 7.00 pm to 6.00 am Monday to Sunday inclusive. He also sentenced Mr Riches to 12 months’ supervision with a special condition that he attend and complete any recommended intervention for drug use to the satisfaction of the probation officer. On his appeal, Mr Riches did not challenge that latter aspect of his sentence.

Conclusion

[38] I am satisfied that there was an error in the sentencing through the District Court Judge failing to adequately consider whether the offending could be dealt with by way of a fine, as is required by s 13 Sentencing Act 2002. Section 15 states that, when a court can consider imposing a community-based sentence, such as community detention, it may do so only if it does not regard a fine as the appropriate sentence or because of other specified circumstances, which do not apply in this case. In all the circumstances of this case, I consider the Court had to regard a fine, together with supervision, as the appropriate sentence.

[39] The appeal is accordingly allowed. The sentence of four months’ community detention is quashed. The appellant is fined $1,700 and sentenced to 12 months’ supervision with a special condition that he attend and complete any recommended intervention for drug use to the satisfaction of the probation officer

So a fine has been found appropriate for a first time offender growing cannabis for personal use who shows contrition.

Note though this example of an unrepentant repeat offender:

[34] In Hartley v Police, Mr Hartley was sentenced on one charge of possession of cannabis, which related to 736 grams of cannabis head found drying on a newspaper in a room inside his house. He was also sentenced for the associated cultivation of cannabis. Seven cannabis plants, ranging in height from 0.75 to 1.7 metres were found. When confronted by the Police with what they had found, Mr Hartley was unrepentant about both his use of cannabis and cultivation, and indicated he did not consider he had done anything wrong. He had previous convictions for cannabis offending. He was sentenced to nine months’ imprisonment in the District Court.

[35] On appeal, Dobson J considered the issue was whether the Judge had erred in imposing a sentence of imprisonment rather than a sentence of home detention or community detention. His Honour held that the decision not to impose a community-based sentence or a sentence of home detention was plainly wrong. In reaching that conclusion, the Judge held that insufficient weight was placed on Mr Hartley’s personal circumstances “and the distinction between cultivation for personal use and cultivation for supply of others”. He also noted that “community detention combined with intensive supervision has been imposed on comparable occasions where the motivation for change is strong and the offender has secure employment and family support”. Dobson J also said:

I also consider that the need for denunciation and deterrence is lower in cases of cultivation than in cases of supply. The seriousness of cultivation for personal use should not be minimised, but the harm caused by such offending is more to the offender and his or her family, than to the community

[36] Dobson J concluded that a community-based sentence should have been imposed. Home detention was not appropriate because it would require Mr Hartley to forego employment. His Honour took into account the two months’ imprisonment already served, quashed the sentence of imprisonment and imposed a sentence of four months’ community detention, together with 18 months’ intensive supervision.

[37] There was no issue in Hartley as to whether a fine should have been imposed as distinct from a sentence of community detention. The appellant’s previous convictions distinguish it from Mr Riches’ situation.

A prison sentence was overturned (after the offender had served two months) but a community sentence deemed appropriate.

21 Comments

  1. For a first offender, Diversion would be most justified…. I never meant to go down the full issue of Cannabis, but its unavoidable, the cops should have better things to do than harass people using a substance safer than alcohol.

    • Bill

       /  August 25, 2017

      Yeah Shane, the benefit of Cannabis for many suffering from various health conditions is undeniable and seen as a compassionate stance.

      However if you dare to believe Cannabis can be a safe alternative to consuming Alcohol everything goes Cheech & Chong and you’re fighting for your credibility.

      Oh the children the children, not one group advocating Cannabis law reform is advocating its use by minors. The facts as they stand, a regulated R18 marketplace has more to offer society than criminalising could ever achieve. No amount of lipstick on the criminal justice system will deliver a good outcome for those who enter in to it.

      On this forum like many others, its often been stated there isn’t an appetite for change yet in New Zealand regarding Cannabis law reform, yet the polls tell a very different story, if poll numbers for Cannabis reform were a political party, we would clearly see a winner.

      Keep up your good work Shane.

      • Kevin

         /  August 25, 2017

        Drug reform is poison chalice. Thing is though if the maximum penalty for cannabis possession was changed to a fine with a stipulation that no conviction shall be entered unless there is a good reason to do so, no one would notice. But it would make a big difference to all those people who choose to use an intoxicant that is safer than alcohol.

    • Kevin

       /  August 25, 2017

      Misuse of Drugs Act s3A

      Classification of drugs
      The classification of a drug under this Act is based on the risk of harm the drug poses to individuals, or to society, by its misuse; and accordingly—
      (a)
      drugs that pose a very high risk of harm are classified as Class A drugs; and
      (b)
      drugs that pose a high risk of harm are classified as Class B drugs; and
      (c)
      drugs that pose a moderate risk of harm are classified as Class C drugs.

      The interesting thing here are the words “by its misuse.” This means that even if a drug is misused by only say 0.001% of people who use but its misuse poses a very high risk of harm then its classified as a Class A drug. Hardly seems fair to me. Also you would think people who got blind drunk would pose a much higher risk of harm to themselves and others than those who smoke a bit much cannabis.

  2. Just wondering.. is cannabis prohibition really about ‘reducing harm’ OR is it about keeping many of the cops/courts/customs/prisons ‘gainfully employed’ ? :/
    I hear estimates that about a quarter to a third, of all police work is ‘drug related’ esp. cannabis !
    Yet the stats. show Alcohol actually causes more harm, by far; road death, domestic violence etc.

    Try looking up, why it was originally made illegal in USA (‘Marihuana’ (sic) tax act 1937), only a few years after Alcohol prohibition ended. Prior to that it was not really considered a issue.. but fear-mongering certainly still echoes around, even in 2017 😦

    • Bill

       /  August 25, 2017

      Yeah Zedd prohibition steeped in power, money and racialism from 1937, the real question is why do we still tolerate it.

      Bill English likes to state that prohibition is doing exactly what it’s designed to do, reduce harm to would be users. This clearly shows that the reintroduction of a prohibition on Alcohol would be of great benefit, as it worked so well first time around. YEAH RIGHT!

    • Kevin

       /  August 25, 2017

      In the US during the 1960s cannabis laws were used as an excuse to search the property of anti-Vietnam campaigners. And in US states where cannabis is legal, opioid overdoses have reduced by over 25%. In Arizona pharma company Insys Therapeutics gave $500,000 to an organisation opposed to cannabis reform. Reason: because if cannabis was legalised they would make less money.

  3. Kevin

     /  August 25, 2017

    Misuse of Drugs Act s7 (2) (b)

    “to imprisonment for a term not exceeding 3 months or to a fine not exceeding $500 or to both in any other case:
    provided that, where any person is convicted of an offence against subsection (1) relating only to a Class C controlled drug and is liable to a penalty under paragraph (b), the Judge or District Court Judge *shall not impose a custodial sentence* (being a sentence under which a person is liable to be detained in a prison within the meaning of the Corrections Act 2004) unless, by reason of the offender’s previous convictions or of any exceptional circumstances relating to the offence or the offender, the Judge or District Court Judge is of the opinion that such a sentence should be imposed.”

    As it should be.

    • Bill

       /  August 25, 2017

      I know I sleep a lot better at night knowing someone received a $500.00 fine for smoking a joint. Oh and the fact they can NEVER travel to the US, Canada and Japan really warms my heart as well. Justice served, as it should be.

      • Kevin

         /  August 25, 2017

        Definitely things could be a lot better. But at least Judges are told not to send cannabis users to prison unless there is a very good reason to do so. This is as it should be. However I would amend the section to say “shall not impose a sentence or enter a conviction … unless” As I say above no one would notice but it would make a big difference to thousands of people.

        • Bill

           /  August 25, 2017

          Fully understand your stance Kevin and if there’s a good reason for a prison sentience to be imposed like Rape, Violence, Murder, ETC, I’m fine with that. But I’m sorry, using or growing Cannabis I don’t believe to be a criminal act. Nether do I believe that everyone who uses Cannabis is in need of an mental health intervention.

        • Bill

           /  August 25, 2017

          Why is a fully regulated Cannabis market such a bitter pill for so many people to swallow, when you can get the justice you seek through regulation.

          • Kevin

             /  August 25, 2017

            Decades of misleading prohibitionist propagandist which has made the public belief that:

            a) Prohibitionism works. That is until they’re the ones with a son or daughter facing having their future ruined for getting caught smoking a single joint. Or have a loved one suffering from an affliction from which cannabis can give them relief.

            b) If cannabis is legalised it will open the floodgates. Yet wherever cannabis has been legalised despite there in some cases been significant increase in use there has been no corresponding significant increase in harm. In fact in some cases the harm has been offset by a reduction in harm in the use of more harmful drugs such as opioids.

  4. at least NZ is not quite in the same mind set as places like the Philippines, where their gangster President has declared all out WAR on Drugs.. reportedly over 12k people shot dead since he came to power, about a year ago ?!

    The think I just cant believe; this apathetic view of so many kiwis, is costing the tax-payer (according to report) over $400million/year to arrest, prosecute & punish for cannabis ‘offences’ mostly possession or cultivation for personal use. Surely it would be better spent on Education & treatment (not imprisonment) for those who have genuine addiction or mental issues.

    meanwhile; English sits on his ‘high horse’ telling us; ‘Status quo only’ based’ mainly on hearsay & disinformation !
    He actually reckons ‘I did not inhale’ so he has only hearsay to base his ‘facts’ on.

    This Govt. are saying ‘more evidence needed’ BUT they totally ignore the mountain of it, coming from most other OECD countries that have now, either decrim. or regulated its use for medicinal &/or personal (adults only) uses. 😦

    methinks, we are being totally misled on this !!

    • Kevin

       /  August 25, 2017

      I did some calculations based on cannabis stats for New Zealand and came to the conclusion that you could pay every cannabis user a thousand dollars a year and still save more money than prohibition costs.

      • Bill

         /  August 25, 2017

        Sounds a bit like Colorado where the tax take from Cannabis was so huge, that the states tax regulations required a dividend to be paid back to all tax payers.

        The ex NZ dairy farmer come Cannabis producer John Lord, made a $120 million US profit last year in Cannabis sales in Colorado.

    • the real injustice being; this current Govt. are just looking for reasons/excuses to ignore all the evidence for change & to maintain status quo.. definitely something Mr English needs a ‘Please explain’ on. All the rhetoric about creating more harm & keeping it out of the hands of youth etc. is just plain B-S.
      Under the current regime (black-market) anyone can buy ‘illegal drugs’ because its totally UNREGULATED & gangs & dealers dont tend to ask for ‘proof of age’.. all they want to see is CASH !
      As Ive said before; methinks there is something else going on in NZ, to being totally bucking the trend of reform (as in other OECD/western countries). Are they (Natz) again saying ‘We know best & they have ALL got it wrong ?’
      ie Zero-tolerance/Prohibition/WAR on Drugs is the only way to go ! :/

      • Bill

         /  August 26, 2017

        Yeah Zedd I feel your Frustration, I’ve got to sit down with my cats this weekend and explain why I’m thinking about giving my party vote to TOP.

        You only have to put on a TOP TEE shirt and look at yourself in a mirror to see it’s the only party that spells POT.

    • Bill

       /  August 26, 2017

      Bang on PG, prohibitions been like a runaway train stoked with $400 million tax dollars every year.
      Nixon came up with the War on Cancer too, I think the numbers at the time were 1 in 14 when it started, now it’s 1 in 3 and lets not forget how well the war on terrors going, any day now I can feel it, victory will be declared.

      I just hope with all the public money being spent, we’ll have enough for a war on poverty.

  5. Curiously, reform appears to be off the political spectrum of debate, like there is no need to resolve these tensions. My take on that is, if it not important enough to discuss then it is not important enough to maintain prohibition.

    Canvassing is the systematic initiation of direct contact with individuals, commonly used during political campaigns.

    Canvas: late Middle English: from Old Northern French canevas, based on Latin cannabis ‘hemp’, from Greek.

    A delightful irony, if it wasnt so serious!