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 return from the cannabis would have been between $20,000 and $40,000 per year.

[9]      I pause to observe that it is not altogether clear to me how this figure was ascertained.   Mr Cornegé for the Crown has had the same difficulty.   There has however been no request for a disputed facts hearing. You are however entitled to be sentenced by reference to the summary of facts which you accepted when your pleas were entered.

[10]     When the police spoke to you, you admitted nurturing the plants since April

2012, and you accepted that all of the plants belonged to you.   You said that the cannabis head was being packaged to hand over to gang members to repay a debt which you owed.

Presentence Report

[11]     You are 51 years’ old. You have one previous conviction for drug possession, and the current offending represents a considerable escalation in the seriousness of your offending.

[12]     You live in the home where the offending took place with your 18 year-old daughter.  You have lived in that home for the past five years.  You are currently single, but you remain on good terms with your former wife.  You consider that she has had a positive influence on you, albeit that you are no longer in a relationship with her.  You also advised the report writer that you have a good relationship with your daughter, and that you keep in regular contact with your elderly mother.

[13]     You have worked as a pest controller with the Department of Conservation. You also keep fit by going to a gym, but otherwise you lead a solitary lifestyle by choice.  You claim to have been placed under pressure by gang members, who threatened your family, dogs, and home, if you did not collude with their drug cultivation activities.

[14]     You accept that you were a methamphetamine user for the period 2003–2008, and you say that you used the drug to help you cope with working shifts in the dairy industry.  You claim to have disassociated yourself from other drug users, and you told the police that you have given up the use of methamphetamine.

[15]    You have a modest criminal history.   The only relevant conviction is a conviction for the possession of cannabis as long ago as 1990.

[16]     You were assessed as being at a low risk of reoffending, and as offering a low risk of harm to others.  The report writer noted that you have not previously been subject to a community-based sentence before, and that it is therefore difficult to determine how you might react to such a sentence.  You have stated that you are willing to complete a community-based sentence.

[17]     A sentence of community detention and supervision was recommended.

[18]     You have consented to consideration of both home and community detention, and the Department of Corrections has reported that electronic monitoring can be undertaken at your current address.  Your daughter, who lives at the address, has consented to the property being used for that purpose, and says that she has no concerns for her own safety.

Forfeiture Order

[19]    As I have noted, the Crown sought forfeiture of your property where the offending was carried out.   In a separate oral judgment given a short time ago, I have, with your consent, ordered 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.  Section 10B of the Sentencing Act requires me to take into account the instrument forfeiture order made. I return to this issue shortly.

Submissions as to Sentence

[20]    Mr Cornegé submitted that your case involves a moderately sophisticated commercial cannabis cultivation operation, and a substantial number of plants.  He submitted that a starting point in the range of three to three and a half years’ imprisonment  is  appropriate,  and  pointed  out  that  the  operation  was  clearly  a valuable commercial enterprise. He acknowledged that you are entitled to a discount to the sentence otherwise to be imposed on you, given the forfeiture order which I have made.    He  submitted that  the  appropriate discount is  in  the  range  of  six months’, but acknowledged that given your responsible attitude to the application, the discount could perhaps be somewhat greater.  He also accepted that you are entitled to a full discount for your early guilty pleas.  He conceded that it is likely that the end sentence will be two years or less.  He advised that the Crown is neutral as to whether a sentence of home detention is appropriate.

[21]    Mr Balme on your behalf, in thorough and comprehensive submissions, submitted that the appropriate sentence starting point, bearing in mind the totality of your offending, is between two years six months, and three years’ imprisonment.  He submitted that after mitigation, including credit for your guilty plea, and allowing for

a discount given the forfeiture order made, that a sentence of home detention is both available, and appropriate.

Principles of Sentencing

[22]     I have considered the principles set out in ss 7 and 8 of the Sentencing Act. In particular, I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgement of your offending, and the need to denounce the conduct in which you were involved.  I am also mindful of the need to deter others from committing the same or similar offences.  This is a primary factor in drug-related offending.  I have taken into account the gravity of the offending with which you were involved, including your degree of culpability.  I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels with similar offenders committing similar offences.  I am also mindful that I must impose the least restrictive outcome that is appropriate in the circumstances and that I need to consider your rehabilitation in the circumstances which have arisen.

Analysis

[23]     In my view, the lead offence is the cultivation of cannabis.

[24]     The guideline judgment for sentencing in this area is the judgment of the Court of Appeal in R v Terewi.1   It dealt expressly with the cultivation of cannabis, and identified three different categories of offending.

[25]    Both counsel accepted that your offending falls within what is known as category 2 discussed in Terewi.

[26]     Category 2 involves relatively small-scale cultivation for commercial ends. Within this category, a starting point of between two and four years’ imprisonment is normal, unless there were infrequent sales of a very limited extent, where a lower

starting point may be appropriate.

1      R v Terewi [1999] 3 NZLR 62 (CA).

[27]     Your   offending   was   relatively  sophisticated   —   albeit   not   the   most sophisticated offending of its type.  The rooms in the sheds had been set up as cannabis growing rooms.   There were growing lights which were connected to a timer, along with a number of fans which were operational.  Located in the sheds were bags of  fertilizer, along with containers of nutrients.   There were a large number of plants — 184 in total. They were in various stages of maturity. You were clearly nurturing seedlings.  It appears that it was intended that the operation would be ongoing.  While I accept that you are a cannabis user, it was clearly a commercial enterprise, and you have accepted that you were supplying dried cannabis head to gang members for on sale by them.  The quantity of dried cannabis, although not weighed, appears to have been reasonably significant. Similarly, the estimated return which you have acknowledged by your pleas, were significant.

[28]     I have considered comparable cases, involving similar operations, with a more or less similar number of plants.  While each case turns on its own facts, they are all helpful in a broad sense.2

[29]     Taking into account the overall scale of your offending, in my judgment, the appropriate starting point is one of three years’ imprisonment.

Aggravating and Mitigating Circumstances

[30]     I now turn to consider aggravating and mitigating circumstances personal to you.

2      R v Karetai HC Invercargill CRI 2010-025-2751, 13 December 2010 — 100 plants, starting point of three and a half years’ imprisonment; R v Brammall [2012] NZHC 3374 — 183 plants, two years nine months’ imprisonment; Profner v Police HC Hamilton CRI 2010-419-47, 15 July

2010 — three years’ imprisonment, upheld on appeal; Hockly v Police [2012] NZHC 2938 —

863 plants, three years’ imprisonment; R v Kyle HC Auckland CRI 2010-044-002940, 27 July

2010 — 110 plants, starting point three and a half years’ imprisonment; R v Wallace HC Whangarei CRI 2009-027-3138, 18 March 2010 — 139 plants, three years’ imprisonment; R v Coombes [2013] NZHC 70 — 250 plants, three years’ imprisonment; R v Elliott HC Gisborne CRI-2009-016-3799, 19 August (original sentencing), CRI 2010-416-0065, 28 October 2011 (re- sentencing) — estimated yield of $90,000 over a three-year period, starting point three years six months; R v Sharp HC Rotorua CRI 2010-063-4641, 22 July 2011 — potential yield between

$40,000–$80,000 from fifth cycle, starting point of three years’ imprisonment; R v Sheehan HC Hamilton CRI 2011-039-151, 19 December 2011 — 64 plants, estimated yield of $64,000, starting point two years six months’ imprisonment; R v Bright [2013] NZHC 582 — 116 plants, potential yield of $104,000, starting point three years three months’ imprisonment.

[31]    As I have noted, you have a modest criminal record.  The only relevant conviction is one for the possession of cannabis.  That conviction however occurred in 1990.  It is of historical interest only, and I do not consider it appropriate to uplift the sentence I would otherwise impose on you because of it.

[32]     There are no other aggravating features personal to you that I am aware of. There are however mitigating factors.

[33]     First, you are entitled to a credit for your guilty plea.  That plea was entered at the first reasonably available opportunity.  I accept that you are entitled to a full discount of  25  percent  for  those pleas.3      Ordinarily, that  would  take  your  end sentence to one of 27 months’ imprisonment.

[34]     As required by the Act, I do, however, recognise the forfeiture order which you have consented to.

[35]     The courts have accepted in a number of cases that it is appropriate to discount a sentence where a forfeiture order is made.  The most helpful decision is that of the Court of Appeal in MacPherson v R.4    In that case, the Court of Appeal revisited a decision of this Court.  The High Court had adopted a starting point of four years and nine months’ imprisonment, but reduced that sentence on the basis of an instrument forfeiture order of approximately $380,000 equity in a residential property owned by the appellant.  The Court of Appeal reduced the instrument forfeiture order to $160,000.   There were no other mitigating features.   The end

result was that the Court of Appeal allowed a deduction of two years from the

starting point because of the instrument forfeiture order made.

3      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

4      MacPherson  v  R  [2012] NZCA 552. Leave to appeal to the Supreme Court declined in

Macpherson v R [2013] NZSC 17.

[36]     The Court of Appeal was not however prepared to give guidance as to the appropriate discount to be applied in such cases.   In other cases, not insignificant discounts have been given where forfeiture of large sums has occurred.5

[37]     Although there need not be any direct correlation between the value of the property forfeited, and the amount of any discount given, in general terms, I accept that it is logical that the greater the loss to an offender from forfeiture, the greater should be the discount.6  The circumstances of the offending may also be relevant, as may the end sentence which will be imposed after a discount for the forfeiture order has been made. As a general principle, offenders should not be able to, in effect, buy their way out of a custodial sentence imposed in the public’s interests by agreeing to a forfeiture order.

[38]     In the present case, the forfeiture order has not been challenged by you. Indeed, you consented to the same.  The forfeiture order will result in the forfeiture of half of your equity in the property, a sum of some $47,800.  You have not argued hardship, notwithstanding that the effect of the order may be that you will no longer have any interest in real estate.   You are 51 years’ old.   While you are still in a position to maintain wilful employment, you have limited means to start again and to rebuild your capital.

[39]     In the circumstances, I allow you a further discount of six months from the sentence I would otherwise have imposed on you to recognise the instrument forfeiture order that has been made.

[40]     It follows that the end sentence which I impose on you is one of 21 months’

imprisonment.

5      R v Brazendale HC Auckland CRI 2009-092-17133, 20 August 2010 — forfeiture of $465,000, resulted in a conviction and discharge affirmed in Brazendale v R [2011] NZCA 494, (2011) 25

CRNZ 580; Police v Elliott, above n 2 and see HC Gisborne CRI-2009-016-3799, 27 August

2010, forfeiture of $279,000, resulted in a reduction in a sentence of 12 months, in consequent in possession of home detention.

6      R v Sharp, above n 2.

[41]     Because your sentence is a short-term length of imprisonment — that is

24 months or less, you are eligible for a sentence of home detention.7

[42]     Often,  it  is  not  appropriate to  order  home detention where  the  property proposed for service of the sentence is the property at which the offending took place.  I raised that issue with Mr Cornegé this morning. In the circumstances of this case, the Crown does not oppose a sentence of home detention being served at the property at 17 Sutherland Road in Tauranga.

[43]   I am satisfied that a sentence of home detention is appropriate in the circumstances of this case.   You have accepted responsibility for your offending. You have cooperated in the making of the instrument forfeiture order.   You have expressed a willingness to engage in drug and alcohol counselling. You will face the loss of a large part of your equity in your house. You are likely to lose your job. The consequences of your offending are clear to you and have had a major effect on you. Home  detention  offers  the  best  prospect  of  rehabilitation  in  your  case  and  is sufficient to denounce your offending.

[44]     In my view, it is appropriate to impose a sentence of community work to ensure that you remain in the workforce and have some incentive to get back into meaningful employment when the sentence of home detention has been served.

Sentence

[45]     Mr Fafeita, will you please stand.

[46]     Mr Fafeita, in respect of the offences of cultivating cannabis and of being in possession of cannabis for supply, you are sentenced to home detention for a period of nine months.  In addition, you are to undertake community work for a total period of 100 hours.

[47]     Upon release from Court:

7      Sentencing Act 2002, s 15A.

(a)      You are to travel directly to 17 Sutherland Road, Tauranga and to await the arrival of a probation officer and a security officer.

(b)You are to reside at 17 Sutherland Road, Tauranga for the duration of the sentence.

(c)      You are to undertake alcohol and other drug assessment and complete any recommended counselling or treatment for abuse of alcohol and other drugs to the satisfaction of the probation officer and programme provider.

(d)You are to report to a probation officer as directed by a probation officer.

[48]     Mr Fafeita, you may stand down.

Wylie J