R v Fox HC CHCH CRI 2008-086-000402

[2009] NZHC 2338

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CRI 2008-086-000402

REGINA

v

DION EDWIN PEEHIKURU FOX

Hearing:         22 October 2009

Counsel:         R M Thomas for Crown

N R Rout and M Black for Prisoner

Judgment:      22 October 2009

SENTENCING REMARKS OF FOGARTY J

[1]      Dion Fox you appear before me today having pleaded guilty to a charge of

conspiracy  to  cultivate  cannabis. This  offending  arose  out  of  a  large  outdoor cultivation of cannabis on a commercial scale over a number of growing seasons on the West Coast.  Certainly, for at least two years, and possibly for a third year.  You were not one of the persons who were instigators of this process.  You facilitated the growing  by  being  the  manager  of  a  neighbouring  farm  and  allowing  some  of  the cultivators to discreetly get to the plots, which were on state owned land, by going through the farm you managed.

[2]      There was a disputed fact hearing as to the extent of your involvement in the cultivation which was followed by a detailed ruling of Judge Neave which I do not

qualify in any way.   He found that you were, on your own admission, which I add

R V FOX HC CHCH CRI 2008-086-000402  22 October 2009

was from the outset, involved in the 2007 cultivation which would be harvested in

2008.  That is for one of these three cycles of cultivation and harvest.

[3]      There is no evidence that you profited significantly from your involvement. There is some evidence that you were, to a degree, prepared to assist in the harvest.

It  is  difficult  to  go  beyond  that  in  describing  your  involvement  because,  as  Judge Neave said, it was in fact your statements to the police which were the basis of the charge.

[4]      On these facts I approach this as you being a person who helped facilitating this operation;  that it is likely the operation, well in fact it is more than likely, was going to go on whether you facilitated it or not.  You have been implicated in one of three years of cultivation and you are entitled to be sentenced on that basis.

[5]      Viewing your role in isolation, Judge Neave was of the view that following the  principles  of  R  v  Teriwi  [1999] 3 NZLR 62, the starting point would be somewhere in the realms of about four years and notwithstanding your plea of guilty. Judge Neave thought it would be difficult to get a sentence for you down to two years which would make home detention and other lesser terms of sentence available.

[6]      Judge Neave did not have the actual responsibility for sentencing which I have. I am influenced by the sentences of two other co-offenders, Mr Low and Mr Rapley, that I delivered on 20 August 2009. For reasons which are set out  in those sentencing remarks Mr Low, who would normally have gone to prison, got a home detention sentence because of his mental health condition, which was proven before me by opinions from a psychiatrist and a psychologist, and that in turn led to a relatively light sentence for his partner, Mr Rapley.  Mr Rapley participated in this enterprise but like you was more on the fringe of it than at the heart of it.  I sentenced Mr Rapley to six months community detention and 300 hours of community work.

[7]      Mr Low and Mr Rapley had also pleaded  guilty from the outset and in the facts of this case I am also treating you as effectively having pleaded guilty from the outset because you acknowledged in your interview  with  the  police  that  you  were

involved and indeed, as I had mentioned, your acknowledgment is the evidence on which the police are now proceeding.

[8]      I am able to distinguish the decision of the Court of Appeal in R v Hessell

[2009] NZCA 450 which says that you must enter a plea of guilty on charge, even if you do not agree with the facts, and then have a later hearing disputing the facts for the purposes of sentencing. This was a practical problem in your case because notwithstanding your statement to the police which involved you for one harvest the police drew the indictment having you involved for two harvests. That is the reason

for the hearing before Judge Neave who agreed with your counsel’s argument that you were only proved to be involved for one season.

[9]      The Crown this morning have been asking for a prison sentence following the guidelines of Teriwi but I have been raising with the Crown the problem that the principle of consistency of sentencing is one of the key principles of sentencing. I have decided, Mr Fox, to apply that principle, and that is very fortunate for you. I think it would be unfair for you to be given a higher sentence than that of Mr Rapley.

I am, to a degree, comforted at the lighter sentence you are getting by the fact that it

is extremely unlikely, it would seem, that you would offend again.  That is the view

of the Department of Corrections who originally in fact recommended only intensive supervision.

[10]     You have quite a remarkable set of references attached to your counsel’s submissions. I think it is the first time that I have seen several retired police officers speaking out on behalf of an offender. You have a stable family life. Your partner is expecting a child. You are in full employment and you have never been to prison before. You have a minor criminal history. I am not suggesting it is not a conviction history.  You got into some trouble when you were 17.  Then seven years later you were convicted of possession of cannabis and theft of some property when you were

23.   You  got  into  a  fight  when  you  were  27  and  you  have  drink/driving  causing injury convictions a year ago.  But the pattern shows, aligned with the work history, and the references I have got, that you are a man now in your 30s who has actually got his life in order and is regarded as a very valuable member of the West Coast community.

[11]         You are very lucky, Mr Fox, that very prominent people on the West Coast are standing up beside you and I am quite satisfied that you are not going to let them down, and that this sentence will have a rehabilitative effect on you. You have already given to the community and I would expect that you will continue to give back to the community.  You have got yourself into a very serious problem in getting involved assisting these other people growing such a large scale of cannabis.

[12]     However, for all the reasons I have given I am satisfied that in your case the appropriate   decision   is   six   months   community   detention   with   300   hours   of community work.

[13]     On the sentence of community detention there will be a curfew from 7 pm to

5 am seven days a week except when you are travelling to and from shift work and

on shift work, such exception to be defined by the probation officer.

Solicitors:
Raymond Donnelly & Co, Christchurch, for Crown
Barker & Associates, Christchurch, for Prisoner