R v Fafeita - [2013] NZHC 1832

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2012-070-004238 [2013] NZHC 1832

THE QUEEN
v

WAYNE GARY FAFEITA

Hearing: 19 July 2013

Appearances:

P V Cornegé for the Crown
A C Balme for the Defendant

Date:

19 July 2013

SENTENCING NOTES OF WYLIE J

R v FAFEITA [2013] NZHC 1832 [19 July 2013]

Introduction

[1] Mr Fafeita, you appear for sentence today, having entered guilty pleas to two charges, both laid under the Misuse of Drugs Act 1975:

(a) You have pleaded guilty to cultivating cannabis. This is an offence pursuant to s 9 of the Act, and it is subject to a maximum penalty of seven years’ imprisonment.

(b)You have also entered a guilty plea to a charge of possession of cannabis for supply. This is an offence pursuant to s 6(1)(f) of the Act. The charge was laid indictably and it is subject to a maximum term of imprisonment of eight years.

[2] The guilty pleas were entered to both charges on 16 October 2012, prior to committal.

[3] Upon application by the Crown, the District Court declined jurisdiction to sentence you, and the matter was transferred to the High Court in Auckland. It has subsequently been transferred to this Court.

[4] On 18 April 2013, the Crown gave notice that the Court should consider making an instrument forfeiture order. That notice was referred to me, and I directed that the prosecutor should issue and serve notices under s 142E of the Sentencing Act 2002. That has occurred. Your former wife applied for relief from any forfeiture order. In an oral judgment which I issued a short time ago, I directed that the sum of
$47,819, being approximately 50 percent of your half share in the net equity of the property should be forfeited to the Crown. Your former wife has been given the opportunity to purchase your interest in the property, either in whole or in part, and the Official Assignee has been empowered to discharge the instrument forfeiture order on receipt by him of the sum specified to be forfeited by you.

Background Facts

[5] The summary of facts is agreed. The offending spans a four-month period between April and August 2012. A total of 184 cannabis plants, and a small number of clones and seedlings were found on your residential property in the course of a police search. The plants ranged in height and maturity from plants measuring five–
10 centimetres in height, to plants that were considerably larger, and were nearing maturity.

[6] The plants were located in two sheds on the property, with self-enclosed rooms having been set up for growing cannabis. Lighting and timing systems had been established. There were operational fans.

[7] Around the house, the police found cuttings from cannabis plants, cannabis seedlings, cannabis head, and some cannabis bud.

[8] The police estimate that the set up was capable of producing up to four harvests per year. They estimate that with a value of $250–$500 per ounce, 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.

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Details

Case: [2013] NZHC 1832
Decision Date: 19 July 2013

CaseChat Overview and Summary

The case of R v Fafeita involved the defendant, Wayne Gary Fafeita, who was sentenced for cultivating cannabis and possessing cannabis for supply under the Misuse of Drugs Act 1975. Fafeita had pleaded guilty to both charges prior to committal, leading to the transfer of the case from the District Court to the High Court in Auckland, and subsequently to the Hamilton Registry. The background facts revealed that Fafeita had been cultivating cannabis in two sheds on his residential property, with a setup that indicated an ongoing commercial operation. The police discovered 184 cannabis plants and estimated the potential annual revenue from the operation to be between $20,000 and $40,000.

The legal issues before the court included determining an appropriate starting point for sentencing, considering the nature and scale of the offending, and evaluating both aggravating and mitigating factors. The court had to balance the principles of accountability, denunciation, deterrence, and rehabilitation, alongside the specific circumstances of Fafeita's case. The Crown argued for a starting point of three to three and a half years’ imprisonment, whereas Fafeita’s counsel suggested a starting point between two and three years, considering his guilty plea and the forfeiture order.

The court found that Fafeita's offending fell under category 2 in the guideline judgment for sentencing cannabis cultivation, which typically warrants a starting point between two and four years’ imprisonment. Considering the sophistication of the operation and the significant number of plants, the court set the starting point at three years’ imprisonment. After applying discounts for Fafeita's early guilty pleas and the forfeiture order, which involved the loss of half of his equity in the property, the court determined a final sentence of nine months’ home detention and 100 hours of community work. The decision took into account Fafeita's cooperation, his willingness to engage in rehabilitation, and the substantial impact of the forfeiture order on his future.

Orders