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.

Government moves to legalise growing medicinal cannabis…

…in Australia. But changes there will put further pressure on the Government in New Zealand to look at similar changes here.

Government moves to legalise growing medicinal cannabis in Australia

The Federal Government has announced it will legalise the growing of cannabis for medicinal purposes.

Health Minister, Sussan Ley, says the Government wants to give people suffering from debilitating illnesses access to the most effective medical treatments.

Medicinal cannabis can already be provided under a special scheme, but Ms Ley says global supplies are relatively scarce and expensive.

SUSSAN LEY: I have heard stories of patients who resorted to illegal methods of obtaining cannabis and I have felt for them because with a terminal condition the most important thing is quality of life and relief of pain and we know that many people are calling out for medicinal cannabis.

It is important therefore that we recognise those calls for help, that we put in place what we know will support a safe, legal and sustainable supply of a product.

LOUISE YAXLEY: The Government intends to amend the Narcotic Drugs Act to allow cannabis to be grown for medicine or science, and that would ensure that Australia is not in breach of international drug treaties.

SUSSAN LEY: This is not a debate about legalisation of cannabis, this is not about drugs, this is not a product you smoke, this has nothing to do with that. 

Most commonly the product is an oil or a tincture that you put on your skin.

The shadow assistant Health Minister, Stephen Jones, said Labor would have a nationally consistent scheme.

STEPHEN JONES: It’s a truly national scheme to make medicinal cannabis available and it shouldn’t be a matter of whether you live in New South Wales or Victoria or somewhere else in Australia – if you are suffering from a terminal illness or if your child has drug resistant epilepsy, suffering from life threatening fits, then you should have available to you through medical advice and appropriate channels, medicinal cannabis.

Forget Dunne, I think he’s pushing as hard as he can in a difficult situation. He’s copping all the pressure, but the thing holding up faster change here is National.

Pressure John Key and target National MPs who might look favourable and compassionately on looking at better ways of alleviating the suffering of people.

Like Zoe Jeffries , a 7 year old girl with uncontrolled epilepsy, spastic quadriplegia cerebral palsy, microcephaly, cerebral visual impairment, is tube fed and who has had severe seizures since birth.

After two years her parents have got Ministry of Health approval to use the only available cannabis derived medicine in New Zealand, Sativex. At a cost to them of $250 per week. See Ministry of Health approves medicinal cannabis treatment.

For much to happen this term National need to change their intransigence substantially.

It would also help if the Greens and Labour pushed far more strongly and positively on this.

And public pressure needs to be strong but positive, a slanging match won’t change anything for the better.