Borg v The Queen - [2015] NZCA 289

IN THE COURT OF APPEAL OF NEW ZEALAND

CA524/2014
[2015] NZCA 289

BETWEEN	KENNETH JOHN BORG Appellant
AND	THE QUEEN Respondent

Hearing:	30 June 2015
Court:	Winkelmann, Lang and Wylie JJ
Counsel:	M E Goodwin and G Ghahraman for Appellant M A Corlett for Respondent
Judgment:	8 July 2015 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

The appellant, Mr Kenneth Borg, was found guilty following trial in relation to one count of cultivating cannabis, one count of procuring another to sell cannabis and two counts of possession for the purposes of sale. He now appeals his sentence of four years seven months’ imprisonment imposed by Judge Aitken, on the grounds that the sentence is manifestly excessive because it is out of line with sentences imposed for similar offending.[1]

The offending

[1]R v Borg DC Auckland CRI-2012-044-005051, 19 August 2014.

The relevant circumstances of the offending are as follows. Mr Borg built a shed on property owned by his family trust in rural West Auckland. In a portion of the shed built into the side of the hill and concealed behind a wall of hay, he constructed four rooms for the purpose of cannabis cultivation. The rooms were fitted out with air ventilation which employed ventilators and carbon filters to reduce odour. The rooms had 600 light bulbs and reflective foil lining was installed on the lower half of the walls in three of the rooms to ensure effective containment of light and heat.
As well as developing the purpose-built shed for growing the cannabis, Mr Borg taught his co-offender, Mr Hoole, how to grow the plants in those conditions. Although it was Mr Hoole who did the day-to-day work of cannabis cultivation, this was a partnership. Mr Borg conceived of and implemented a scheme to conceal his receipt of large sums of money from the sale of cannabis. It was agreed that Mr Hoole would pay the money to him as rent for the shed. For this reason the rent was set at a level well above market. Between August 2011 and June 2012 Mr Hoole paid $192,700 in rent. Mr Hoole pleaded guilty to four counts involving offences against the Misuse of Drugs Act 1975 and was called by the Crown as a witness at Mr Borg’s trial.
Mr Hoole gave evidence that the operation had yielded at least 733 ounces of cannabis in that same time period. When the police executed search warrants, 1,587 plants were discovered at various stages of growth. Police also discovered 2.25 kilograms of dried cannabis hanging in one of the rooms and in the hallways. Approximately 1.7 kilograms of cannabis was found at Mr Hoole’s home.
The expert ESR evidence at trial was that a plant in the conditions described above could yield anything from half to one ounce of cannabis, and that there was potential for those plants to produce over four growing seasons per year.

Sentence of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Borg v The Queen

Details

AGLC: Borg v The Queen [2015] NZCA 289
Case: [2015] NZCA 289
Decision Date: 8 July 2015 at 3.00 pm

CaseChat Overview and Summary

Kenneth Borg was the appellant in this case against The Queen, the respondent, which was heard in the Court of Appeal of New Zealand. Mr Borg was appealing his sentence of four years and seven months' imprisonment, which he received for cultivating cannabis, procuring another to sell cannabis, and possession for the purposes of sale. The appeal was dismissed by the court.

The legal issues that the court needed to decide were whether the sentence imposed on Mr Borg was manifestly excessive, and if the starting point used by the sentencing Judge was appropriate. Mr Borg argued that the starting point adopted by the sentencing Judge was too high, and that the sentence imposed was manifestly excessive.

The court considered that the offending was correctly characterised as serious commercial scale offending, and that it sat comfortably within the middle to upper range of category three of Terewi. The court agreed that a starting point of six years was perhaps too high, but a starting point of five and a half years was within the appropriate range. The court also considered the mitigating factors that the sentencing Judge had taken into account, including Mr Borg's remorse and family circumstances. However, the court found that the discounts allowed were overly generous, and that the sentence imposed was not manifestly excessive.

The appeal was dismissed, and the sentence imposed by the sentencing Judge was upheld.

Orders