R v Banaba HC Auckland CRI 2010-004-5428
[2010] NZHC 1459
•10 August 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-004-005428
THE QUEEN
v
GRAEME KEVIN BANABA
Charges: Cultivation of cannabis x1
Possession of cannabis for supply x1
Plea: Guilty
Appearances: D Robinson for Crown
P Winter for Prisoner
Sentenced: 10 August 2010
Two years four months’ imprisonment on both charges concurrent
SENTENCING NOTES OF VENNING J
Solicitors: Crown Solicitor, Auckland
Copy to: P Winter, Auckland
R V BANABA HC AK CRI-2010-004-005428 10 August 2010
[1] Mr Graeme Banaba, you are for sentence in this Court having pleaded guilty to one charge of cultivation of cannabis and one charge of possession of cannabis for supply. The maximum penalty for cultivation of cannabis is seven years’ imprisonment. The maximum penalty for possession of cannabis for supply is eight years’ imprisonment. You are here for sentence in this Court because the District Court Judge declined jurisdiction in your case.
[2] On 26 January this year the police executed a search warrant at a property leased by one of your co-offenders Mr Scott. Mr Scott and your son Edward were at the address. The search revealed a substantial indoor cannabis cultivation operation involving six different growing areas. One hundred and sixty live plants were found,
64 of which were between 86 and 130 centimetres in height and there were two fully mature plants. There were a number of dead plants found and about 5 kilograms of cannabis leaf as well.
[3] In addition there was extensive cultivation equipment: heat lamps, ventilation systems and growth hormones were all discovered there. A calendar showed that around 17 pounds of cannabis with an estimated value of $68,000 had already been harvested. The total value of the crop was estimated at in excess of
$220,000.
[4] The search warrant was executed at your home. Three pounds of cannabis were found with a street value of approximately $12,000 as well as $6,245 in cash.
[5] As a result of what was found at your property you face the charge of possession of cannabis for supply.
[6] Your co-offenders, Mr Scott and your son Edward, were sentenced in the District Court on 3 June this year. Judge Cunningham found that you and Mr Scott set up the cultivation operation and your son was effectively only an assistant in relation to maintaining plants.
[7] On my reading of the sentencing notes the Judge took a start point for sentencing Mr Scott and your son of three years’ imprisonment. She declined to sentence you as a result of the additional charge and your previous relevant convictions.
[8] Ultimately Mr Scott received 10 months’ home detention and Mr Edward
Banaba six months’ home detention.
[9] You are 45 years old. You live with your wife and 15 year old daughter. You have been self-employed as a car groomer and work for security as well. You have had alcohol issues in the past but you have since abstained from that and have a positive and supportive relationship with your family. You accept you have a long- term addiction to cannabis.
[10] You say that the offending was to gain quick and easy cash. You regret your behaviour now as it has brought anger and hurt from your wife and has jeopardised your son.
[11] The probation writer says that you remain at a high risk of reoffending as long as your drug problem remains and recommends a sentence of imprisonment due to your previous offending and past record.
[12] You have 34 previous convictions for a range of offending. You have convictions for possession of cannabis for supply in 1990, 2000 and 2008 and possession of seeds in 2000. The most significant of those previous convictions is the sentence imposed on you in February 2009. This offending, for which you are for sentence today, followed very shortly after the term of home detention that you served on that occasion expired. That was also a charge of possession for supply of cannabis. At the time the Judge made it clear to you, you were on a final warning. Unfortunately for you Mr Banaba and for your family you failed to heed that warning and you now must pay the consequences.
[13] In sentencing you I am directed to take into account the purposes and principles of the Act:
• to hold you accountable for your offending;
• to promote in you responsibility for your offending; and
• to deter you and others from offending of this nature.
[14] I am also required to take into account the gravity of the offending, which is reflective of your culpability, your role in the offending and the seriousness of the offending. That is noted by the fact that Parliament has prescribed maximum sentences of seven and eight years for such offending.
[15] I am also directed to take into account that of course at some stage you will be rehabilitated in the community and to impose the least restrictive sentence appropriate.
[16] The Crown submit that a start point of between three and a half and four years’ imprisonment is appropriate. The Crown submit there should be an uplift added to that for the additional charge of supply and a further uplift for your previous history. The Crown accept a full discount of a third is available to you for your early guilty plea.
[17] Mr Winter in his helpful written submissions and in his oral submissions accepts that your offending falls into category 2 of R v Terewi1[1] the Court of Appeal guideline judgment. He submits three years’ imprisonment should be taken as a start point. He acknowledges there must be some uplift but submits a full discount of 33 per cent should be taken into account as well. Mr Winter has also referred to the issue of the seizure of your two motorcycles and the Crown’s application that the
[1] R v Terewi [1999] 3 NZLR 62
$6,245 be forfeited.
[18] I make it clear to you Mr Banaba that the two motorcycles were seized under the Proceeds of Crime legislation. They were not seized as instruments of forfeiture or as instruments used in the course of the offending. Section 10B of the Sentencing Act does not apply. I cannot take the seizure of the motorcycles into account as a
credit for you. Essentially the position is that they were taken from you because the Court was satisfied that they had been obtained by you using the proceeds of crime. As the Court of Appeal confirmed in the decision of R v Brough[2] the principle is that criminals must disgorge the benefits of crime. The fact you have been required to give up assets obtained from the proceeds of crime is not to be taken into account by way of credit at sentencing.
[2] R v Brough [1995] 1 NZLR 419.
[19] I have also had regard in terms of consistency to the case of R v Terewi as I
have discussed and also to cases that counsel have referred to, including: R v Reti;[3]
[3] R v Reti HC Wellington CRI-2004-091-002330, 15 October 2004.
R v Merton;[4] R v Yates;[5] R v Cross;[6] R v Griffin;[7] R v Ngati & Murray[8] and a number of other relevant authorities.
[4] R v Merton HC Auckland CRI-2009-044-002520, 7 May 2010.
[5] R v Yates HC Whangarei CRI-2009-029-001305, 22 April 2010.
[6] R v Cross HC Hamilton CRI-2005-079-000705, 6 October 2005.
[7] R v Griffin HC Dunedin CRI-2006-012-001210, 25 July 2006.
[8] R v Ngati & Murray HC Auckland CRI-2009-063-000288, 22 September 2009.
[20] I have to say Mr Banaba that were it not for the three year start point adopted by the District Court Judge in my assessment a start point of three and a half years would have been appropriate in your case. But I accept that in relation to your co- offenders, particularly Mr Scott, the Judge took a start point of three years and I propose to adopt the same start point for you so to a degree you are getting the benefit of that. However, in addition to that it is necessary to take into account the further charge that you face, that of possession of cannabis for supply. An uplift of three months is required for that.
[21] There is then your record. You have to face the consequences that in February 2009 you were convicted of possession of cannabis for supply and you have yet again offended within a very short time after completing that home detention sentence. There is not only that conviction but there are previous convictions as well.
[22] You have a propensity to offend in this way because of your addiction to this drug. You must address it.
[23] I am conscious that the Court should not punish you doubly and that you have been sentenced in the past for those matters but nevertheless there must be some uplift for your previous record.
[24] I temper it by uplifting by a further three months only. That takes the Court to a start point of 42 months. I then look to your personal mitigating factors. Mr Winter has referred me to references on your behalf. It does seem from there that apart from this offending relating to cannabis you have been supportive of others in the community and obviously you have the support of your family.
[25] It has to be said, however, given your previous record and the nature of the current offending your personal circumstances cannot count for very much when it comes to sentence.
[26] The principal matter I can take into account on your behalf is your early acknowledgement of responsibility and the early guilty plea, which I accept shows a recognition by you of the role you played and remorse to the extent that you accept your responsibility for what you have done. I give you a full credit of one-third for that.
[27] Would you please stand. The end result is a sentence of two years four months’ imprisonment on both charges. That is concurrent so the effective sentence is two years four months’ imprisonment. Orders for forfeiture of the $6,245 found. I am satisfied that is appropriate in accordance with R v Bishop[9].
[9] R v Bishop [2010] NZCA 66.
[28] That’s all stand down.
Venning J
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