Mr Payne appeals against the sentence of three years and three months’ imprisonment imposed on him by Mander J for five charges of cultivation of cannabis and one charge of possession of cannabis for the purposes of sale.[1] Mander J adopted a starting point of three years and six months’ imprisonment and allowed a three-month (approximately seven per cent) global discount for personal mitigating factors and the late entry of guilty pleas.
[1]R v Payne [2015] NZHC 2751.
Mr Payne contends that the starting point was too high, creating an unfair disparity between him and his co-offenders Brodie Anderson (Mr Payne’s son) and Brian McCarthy. Mr Payne also submits that the three-month discount does not adequately account for his personal mitigating factors and his guilty pleas.

Background

In 2008 the police commenced an investigation targeting large scale cannabis offending in Western Southland, including Fiordland. The investigation uncovered significant cannabis cultivation and supply operations. Mander J described Mr Payne’s role in the overall cannabis operations as follows:
[2] Over the course of two consecutive growing seasons, between October 2010 and April 2012, you cultivated cannabis at two geographical locations described as “Rarakau” and “Mt Misery”. These were relatively sophisticated outdoor cannabis plots of similar design and construction. You cultivated these plots with the assistance of Mr Brian McCarthy, who has been sentenced both in respect of the cultivations at these sites and at other plots in respect of which you were not involved.
[3] You were also responsible for the cultivation of cannabis over the course of the 2011/2012 growing season in an isolated area described in the evidence as “Hump Burn”. This plot was cultivated by you, together with your adult son, Mr Brodie Anderson who has also been dealt with in relation to his involvement in this cannabis growing operation. The possession for supply charge relates to some three pounds of cannabis located at Mr Anderson’s house in Pukerau which was harvested from the Hump Burn plot.
[4] As a result of a disputed facts hearing, I made determinations regarding the yield and revenue from these various plantations.[2] The success of each cultivation varied. In total, some 94 plants were harvested with a yield estimated between 26 to 34 pounds from the five plots with an approximate revenue over the two years from that yield, of between $76,000 to $99,000.

Was the starting point adopted too high?

[2]R v Payne [2015] NZHC 2629.

Mander J adopted a starting point of three years and six months’ imprisonment. The key issue before his Honour was where the…

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 Payne v The Queen

Details

AGLC: Payne v The Queen [2016] NZCA 284
Case: [2016] NZCA 284
Decision Date: 23 June 2016 at 3 pm

CaseChat Overview and Summary

David Christopher James Payne appeals against the sentence of three years and three months' imprisonment imposed by Mander J for five charges of cannabis cultivation and one charge of possession for the purposes of sale. Payne argues that the starting point of three years and six months' imprisonment was too high, creating an unfair disparity between him and his co-offenders, and that the three-month discount for personal mitigating factors and late entry of guilty pleas was inadequate. The Court of Appeal, however, rejected both arguments. The Court found that the starting point was appropriate, as the offending was between the upper end of category 2 and the lower end of category 3, reflecting the significant potential yield. The Court also found that the discount provided for mitigating factors and guilty pleas was within the available range. The appeal is dismissed.

The Court found that the starting point adopted by Mander J was not disproportionate to that adopted for Payne's co-offenders. The Court also rejected the argument that the discount provided for mitigating factors and guilty pleas was inadequate. The Court found that the mitigating factors were weak, and that the global discount of three months afforded for both personal mitigating factors and the late entry of guilty pleas was within the available range. The Court also found that the Crown was correct in its submission that there is no scope for further credit for Payne's ability to cope with prison because of his mental health issues. The Court found that a sentence reduction will not usually be provided where an offender's condition can be adequately managed and treated in prison. The Court also found that relatively little weight is generally attached to previous good character in cannabis cultivation cases, as deterrence is the primary factor. The Court found that a prior good character discount is also problematic where the offending occurs over a prolonged period. Finally, the Court found that any discount available for guilty pleas was negligible, as Payne was reluctant to accept responsibility for his involvement in very significant cannabis offending until the eleventh hour. The Court found that Mander J was correct in affording a global discount of three months for personal mitigating factors and the late entry of guilty pleas.

Orders