Hereaka v The Queen
[2011] NZCA 429
•31 August 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA116/2011 [2011] NZCA 429 |
| BETWEEN KIM JASON HEREAKA |
| AND THE QUEEN |
| Hearing: 23 August 2011 |
| Court: O'Regan P, Ronald Young and Venning JJ |
| Counsel: J A Westgate for Appellant |
| Judgment: 31 August 2011 at 11.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
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REASONS OF THE COURT
(Given by O’Regan P)
Introduction
Mr Hereaka was convicted of three counts of cultivating cannabis, one count of manufacturing cannabis resin, six counts of receiving property having a value over $1,000, one count of receiving property having a value under $1,000, one count of theft of electricity, and one count of unlawful possession of a firearm. He had pleaded guilty to these offences on arraignment. He was sentenced by Judge Phillips to a total sentence of three years and five months imprisonment.[1] He appeals against that sentence.
Facts
[1] R v Hereaka DC Invercargill CRI-2009-025-4413, 3 February 2011.
The Judge summarised the factual background as follows:
[2] During September 2009 there were a large number of burglaries in the Invercargill City. They involved large amounts of property at a very high dollar value. In October 2009 the police executed a search warrant on your residence. In a bedroom in your residence they found a “growing room” which gave, because of its condition, a strong indication that a crop had been recently harvested. In the room there was a hydroponic watering system, there was ‘leaf’ on the floor, and there was 1.7kg of cannabis found in shopping bags in the room. In the bathroom there was a plant growing under lights in the bath and there were also seedlings growing. The search warrant also discovered many items of property linked to six of the burglaries that had occurred in the period that I have just mentioned. Two shotguns and three rifles were also found in your bedroom. The guns had been placed close by a box of ammunition. That room was a room not only used by you but also shared by your 14 year old daughter. Examination of the power meter showed that it had been ‘doctored’ with wire to slow it down. It is estimated that you had cost Contract Energy Limited some $4,000 approximately in stolen electricity. You told the police that you had grown the cannabis for another person; that you were growing two crops a year with the other person doing all the work. You claimed that the cannabis in the bags belonged to the other fellow and it was going to be made into hash. You had, and gave, every reason or excuse to minimise your conduct and behaviour and transfer blame in relation to everything. You said you had obtained all the other property from a friend, some had been purchased and some has just been left, and then you said “...I just turned a blind eye...” The list included expensive computers; shotgun and rifles (as I have said); video cameras; a welder; a vacuum cleaner; and other items. You appeared in Court on those matters and were given bail. This was in October 2010.
[3] On 21 December 2010 a second search warrant was executed on the property where you were then living. It was discovered that there was a Compac laptop and hard drive; a docking station; and parts of a motor cycle all within this house. They were all items that had been stolen during the course of the burglaries. And lo and behold in the garage what do the police find? There is a further “grow” room. There the plants (eight of them in two rows) hydroponic under lights, two plants in soil, 10 plants in all and you said “...I am growing it for my own use...” You refused to say who you got the stolen property off. You said you had been given the computer to change the password. That the parts were off a motorcycle. In reality you said when asked about it to the police “...well they have caught me once, I didn’t expect them to come and do a second search warrant...” Mr Westgate has made it clear to you that that stupidity is one of the reasons that has led you to where you have to go to prison for a lengthy period today.
The District Court sentencing
The Judge referred to the victim impact statements in which the victims of the burglaries from which the property received by the appellant had been sourced spoke of their sense of violation and frustration that the appellant would not reveal the identity of the burglar or burglars. The Judge described the appellant as “thoroughly dishonest”, and said he thought that the appellant had thrown responsibility out of the window. The Judge also noted that the appellant had a very extensive list of offending going back to 1979, though noted that the last offence had been in 2005.
The Judge took the most serious count of cultivation of cannabis as the lead charge for sentencing purposes. He rejected the contention that the growing operation was unsophisticated and that the cannabis was for the appellant’s personal use. He considered that the starting point would be a two year term of imprisonment on that count, and that in light of the other cultivating cannabis counts, it was necessary to have an uplift, as well as a further uplift for the count of manufacturing cannabis resin, a class B drug. He then considered a further uplift was required to deal with the theft of electricity, which had been associated with a cannabis growing operation. All in all, he considered that the starting point for those counts should be three years and three months.
He then turned to the charges of receiving and possession of firearms, and dealt with those on a global basis. He considered that, having regard to the need to ensure that the overall sentence met the totality of the offending, a further uplift of eight months was required, thus giving him a starting point of three years and 11 months imprisonment on an overall basis.
The Judge noted that the guilty plea which had been entered by the appellant was entered late, but granted what he called a “merciful” discount of six months. He did not consider there were any other mitigating factors.
The net result was that the sentence of three years and five months imprisonment was imposed on one of the counts of cultivating cannabis. Concurrent sentences of 12 months imprisonment were imposed for the second cultivating cannabis count and the count of manufacturing cannabis resin, and concurrent six months terms were imposed on all other counts.
The Judge decided that, in view of the impecuniosity of the appellant and his impending prison term, it was pointless to make a reparation order.
Was the starting point too high?
The essence of the appeal was the contention made on the appellant’s behalf by his counsel, Mr Westgate, that the starting point of three years, 11 months taken by the Judge was too high, having regard to the overall culpability of the appellant and the lack of commerciality with respect to his cannabis offending.
Mr Westgate submitted that a sentence in the range of 18 months to two years imprisonment for the cultivation offences was justified, with an uplift of no more than six months for the offence relating to cannabis oil and a further uplift of nine months for the receiving and firearms charges, making a total starting point of between 33 and 39 months. Applying the same level of discount for the guilty plea as that applied by the Judge, an end sentence of somewhere between two years and six months to three years would result.
Our analysis
At the heart of this submission was Mr Westgate’s argument that the level of commerciality in the principal cultivating charge was low. He said that the appellant claimed that he was growing it to share with a group of friends, and Mr Westgate emphasised that there was no evidence of cannabis dealing (cash, tick lists and the like). He accepted that the 1.7 kilograms of cannabis material that was found was well above the threshold for the presumption of dealing (28 grams), but said not all of this was usable material because it included stalks. He downplayed the seriousness of the offence relating to cannabis oil, saying that the appellant had just stirred the material in a drum and sampled it on one occasion.
There was some confusion in the way the Judge structured his sentence and in which cannabis count was treated as the lead offence. The Judge referred to count 3 but it seems more likely that he meant count 5. Be that as it may, we consider that when count 5 is taken (1.7 kgs), and considered alongside count 3 and count 13 (both of which were cultivation counts), and the cannabis oil charge, as well as the charge of theft of electricity which was associated with the cannabis cultivation, it was reasonable for the Judge to take a starting point of somewhere in the region of three years imprisonment.
In addition to that, the receiving charges were serious and the charges of possession of firearms were far more serious than Mr Westgate was prepared to concede. He asked us to treat the firearms as merely stolen property that had been received, but the location in which they were kept and the fact that ammunition was kept with them indicated a more sinister aspect. We do not see anything untoward with the Judge’s uplift of eight months to reflect this offending when considered against the drug offending.
There was no dispute that the discount for the guilty plea that had been entered relatively late was generous. In those circumstances there is no proper basis for the assertion that the end sentence of three years and five months imprisonment was manifestly excessive.
Result
Although there could be some quibble with the way in which the sentencing was structured by the Judge, we do not see any reason to interfere with the level of sentence reached. We therefore dismiss the appeal.
Solicitors:
Crown Law Office, Wellington for Respondent
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