R v Huirama

[2018] NZHC 864

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2016-070-005102

[2018] NZHC 864

THE QUEEN

v

GAYNE TUITONGA HUIRAMA

Hearing:	30 April 2018
Appearances:	S J P Davison for Crown W T Nabney for Defendant
Judgment:	30 April 2018

SENTENCING REMARKS OF LANG J

R v HUIRAMA [2018] NZHC 864 [30 April 2018]

[1]    Mr Huirama, you appear for sentence today having pleaded guilty to charges of being in possession of methamphetamine for supply and cultivating cannabis. The maximum sentence on the methamphetamine charge is life imprisonment. The maximum sentence on the cannabis charge is seven years imprisonment. You were also charged with diverting electricity for the purpose of cultivating cannabis. The Crown has offered no evidence on that charge, and you are now discharged on it pursuant to s 147 of the Criminal Procedure Act 2011.

[2]    You pleaded guilty following a sentence indication given by me on 8 March 2018.1 The facts on which the charges are based are fully set out in the sentence indication and I do not propose to traverse them here. In short, you were found in possession of 56 grams of methamphetamine on 13 October 2016, and you were found in August 2016 to have been carrying out a significant cannabis growing operation from your house.

[3]    I took a starting point of four years imprisonment on the methamphetamine charge and then added an uplift of 18 months to reflect the cultivation charge. This produced an end sentence of five years six months imprisonment before taking into account mitigating factors. I allowed 14 months, or 20 per cent, to reflect guilty pleas if they were to be entered shortly after the indication. You entered your pleas within the time specified in the indication, and for that reason are entitled to the credit of 14 months for your guilty pleas.

[4]    The only remaining issue is to determine whether I should reduce the sentence further to reflect other mitigating factors than your guilty pleas. Mr Nabney on your behalf submits that I should give effect to three matters. The first of these is the fact that you have expressed remorse for your offending through the comments you have made to the probation officer who prepared the pre-sentence report. Secondly, he points out that you have undertaken rehabilitative efforts in the sense that you have undertaken an eight-week course run by the Hanmer Institute to deal with your methamphetamine addiction. Thirdly, he submits that you should receive a discount

1      R v Huirama [2018] NZHC 352.

to reflect the fact that you have been subject to restrictive bail conditions for a period of one year seven months.

[5]    I acknowledge that you have expressed remorse, and you have also undertaken rehabilitative efforts. The pre-sentence report also indicates that you committed these offences at a time in your life when you were depressed following the death of your mother and first cousin with whom you were very close. You also suffered difficulties in your business relationship with your partner when your relationship with her ended. At about this time, and at a point where you were feeling suicidal, you commenced using methamphetamine. This inevitably led to the type of offending that occurred here.

[6]    I accept also that the offending appears to have been an aberration, because I have received several letters from persons who associated with you before the offending and they attest to the fact that you are by and large a person of good character. This is reflected in the fact that you do not have any previous convictions that are relevant for present purposes. I propose to allow a discount of six months to reflect the remorse you have expressed and the efforts you have made towards rehabilitation.

[7]    The Crown contends I should not grant any further discount in relation to the fact that you have been on restrictive bail conditions. It points out that the only restrictive bail condition is a curfew between the hours of 8.30 pm and 5 am each day. This has also been varied on occasions by consent with the Crown to enable you to attend family-related gatherings. I accept the Crown’s submission that your bail conditions have not been unduly restrictive. Nevertheless, for a period of one year and seven months you have been required to be at home every night. That is a reasonably restrictive condition and it has continued for a lengthy period. I propose to apply a discount in respect of this factor, but the fact that the condition was not overly restrictive means it will be limited. I propose to allow two months to reflect this factor.

[8]    This results in an effective end sentence of three years eight months imprisonment.

Sentence

[9]    On the charge of being in possession of methamphetamine for supply you are sentenced to three years eight months imprisonment. On the charge of cultivating cannabis you are sentenced to one year four months imprisonment. Those sentences are to be served concurrently, which means the effective sentence is one of three years eight months imprisonment.

Lang J

Solicitors:

Crown Solicitor, Tauranga W T Nabney, Tauranga

IN THE HIGH COURT OF NEW ZEALAND

TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2016-070-005102

[2018] NZHC 352

THE QUEEN

v

GAYNE TUITONGA HUIRAMA

Hearing:

8 March 2018

Appearances:

A J Pollett for Crown

W T Nabney for Defendant

Judgment:

8 March 2018

SENTENCING INDICATION OF LANG J

[1]    Mr Huirama faces two sets of charges. The first is a charge of being in possession of methamphetamine for supply on 14 October 2016. That charge is due to be heard in this Court as part of a trial involving several defendants in October 2018. Mr Huirama also faces two cannabis-related charges in the District Court. These are charges of cultivating cannabis and diverting electricity for that purpose. These charges are currently scheduled to be the subject of a trial in the District Court in June 2018.

[2]    I have been asked to provide a sentence indication on the basis that, if the indication is accepted, Mr Huirama will consent to the charges in the District Court being transferred to this Court under s 70(4) of the Criminal Procedure Act 2011 so that he can be sentenced on all charges at the same time. This has obvious advantages, because it avoids difficult issues relating to totality that will arise if the two sets of proceedings are dealt with separately.

The facts

[3]    The lead charge is the methamphetamine charge. It carries a maximum sentence of life imprisonment. Mr Huirama’s involvement in methamphetamine was discovered as a result of a long-term police operation instigated in 2016. Intercepted communications revealed that Mr Huirama was associated with other persons believed to be involved in the distribution of methamphetamine.

[4]    The charge that he faces arises out of a discrete incident that occurred between 13 and 15 October 2016. On the afternoon of 13 October 2016, Mr Huirama uplifted 56 grams of methamphetamine from others in the group. The following day he rented a vehicle and travelled to Wellington with another member of the group. Early on the morning of 15 October 2016 the police executed a search warrant on their vehicle when it arrived at the inter-islander ferry terminal. In the boot of the vehicle the police found two self-sealing plastic bags, each of which contained 28 grams of methamphetamine. A set of electronic measuring scales was also found in the vicinity.

[5]    The cannabis charges arise from a series of events that began in July 2016. It seems that Mr Huirama was approached by a Mr Petersen, who was one of the leading figures targeted in the police operation. Mr Petersen made it known that he wished to

set up a cannabis cultivation operation. Mr Huirama then offered to allow Mr Petersen to use the premises he was then occupying for that purpose. Thereafter, Mr Petersen and Mr Huirama set about acquiring equipment and material necessary to establish the operation. Mr Peterson paid for these items in cash.

[6]    Mr Huirama then set about converting his house to the purpose of cannabis cultivation. He arranged for Mr Petersen to have the electricity to the address diverted. This had two purposes. First, it prevented the increase in electricity consumption resulting from the  growing  operation  from  being  detected.  Secondly,  it  meant Mr Huirama would not be required to pay for the electricity consumed by the operation.

[7]    The police executed a search warrant covertly on 17 August 2016. They discovered 80 cannabis plants were growing in plastic buckets on the floor of a downstairs living area. On the bottom level of the house the police discovered a custom-made growing room. This had been lined with polystyrene and black polythene sheets. Growing under lights in this room, the police found a further 99 cannabis plants. These ranged in size from 40 centimetres to 60 centimetres. In addition, the police found four cannabis plants growing in buckets on a garage bench. These were 30 to 100 centimetres high. All of the plants found at the address were in good condition.

[8]    The police then searched the master bedroom and located two plastic shopping bags of cannabis leaf. A small amount of cannabis plant material was also located in the dining area of the address. In a deep freezer in the downstairs area, the police found five large bags of cannabis leaf weighing at least five kilograms.

[9]The summary of facts contains the following statements:

Each indoor grown cannabis plant can potentially yield between 1 and 4 ounces of cannabis head material.

An ounce of indoor grown cannabis head sells for between $200 and $500 with $250 being an average in realistic value.

As indoor grow rooms are designed to allow year round production by creating an artificial growing environment, it is realistic to have five cycles of cannabis harvest per year.

If the 183 plants were taken to maturity five times in a year, this would equate to 915 cannabis plants per annum reaching maturity.

Based on these figures and using the average yield of two ounces per plant when harvested, the 915 cannabis plants could produce $1,830 ounces of cannabis head. This quantity sold in the range of $250 to $500 per ounce would be worth between $470,500 and $915,000 per annum.

Starting point

The methamphetamine charge

[10]   The starting point for the sentence to be imposed on the methamphetamine charge is to be selected in accordance with the principles identified in the Court of Appeal in R v Fatu.2 It is common ground that Mr Huirama’s offending falls in Band 2 identified in Fatu, which applies to situations in which the offender is in possession of between five and 250 grams of methamphetamine for the purposes of supply. Offending in this range will attract a starting point of between three and nine years imprisonment.

[11]   The Crown submits that a starting point in excess of five years imprisonment is appropriate. It relies on R v Gallie, but in that case there was additional evidence of supplies of methamphetamine.3 By contrast, Mr Huirama was found on a single occasion with two packages of methamphetamine, each of which weighed an ounce. I consider that this places him in a different position to the offender in Gallie.

[12]   I consider the position to analogous to that in R v Rewita, a case relied on by Mr Nabney on Mr Huirama’s behalf.4 In circumstances very similar to those in the present case, the sentencing Judge in that case adopted a starting point of four years imprisonment. That is the starting point I adopt on the charge of being in possession of methamphetamine for supply.

2      R v Fatu [2006] 2 NZLR 72 (CA).

3      R v Gallie HC Auckland CRI-2010-044-514, 20 September 2011.

4      R v Rewita [2016] NZHC 2523.

The cannabis charges

[13]   I propose to adopt a single starting point in relation to the other two charges because I consider the charge of diverting electricity is properly regarded as an incident of the cultivation operation that Mr Huirama set up.

[14]   I acknowledge that Mr Huirama instituted the operation at the instigation of Mr Petersen. It is likely that Mr Petersen was the person who would derive any profit produced by the operation. Nevertheless, the summary records that Mr Petersen was to pay Mr Huirama and his partner for the use of their premises.   In addition,        Mr Huirama was instrumental in obtaining supplies for the operation and altering his house so that it would enable the operation to take place. He and his partner were also responsible for tending the plants. This involved watering and pruning the plants, as well as ensuring the growing lights were turned on at regular intervals.

[15]   In those circumstances, it seems to be that Mr Huirama played a full part in a significant commercial cannabis growing operation.

[16]   Mr Nabney submits that I should adopt a starting point that reflects only the 183 plants that the police found at Mr Huirama’s address. This ignores the fact that a room had been constructed at the address for the sole purpose of growing cannabis under artificially lighted and heated conditions. This makes it clear that this was not a “one-off” operation as may be the case, for example, when cannabis plants are found growing in the wild. Rather, it is reasonable to assume that the growing room would be used for more than one cycle of cannabis.

[17]   On any view of the facts, I consider that a starting point of around four years imprisonment would ordinarily have been appropriate to reflect the commerciality of the operation and its potential for producing multiple harvests of cannabis each year.

[18]   In the present case, however, it is necessary to have regard to totality principles. I consider these will be satisfied if an  uplift of  18  months  is  applied  to  reflect  Mr Huirama’s culpability on the cannabis charges. This would produce an end sentence of five years six months imprisonment.

Aggravating factors

[19]   At this stage, Mr Huirama has two previous convictions for driving offences. As the Crown accepts, these are immaterial for present purposes. There would therefore be no uplift to reflect aggravating factors.

Mitigating factors

[20]   In terms of mitigating factors, I am only prepared at this stage to indicate the discount to be given for guilty pleas in the event that they are entered in the near future. The Crown contends that a discount of 15 per cent would be appropriate given the fact that trial dates on both sets of charges are imminent.

[21]   I acknowledge the relative lateness of any pleas. Balanced against that, however, there will be considerable savings to the State if the two sets of charges can be resolved at this stage. I would therefore be prepared to allow a discount of 20 per cent, or 14 months, to reflect guilty pleas provided they are entered in the near future. This would produce an end sentence of four years four months imprisonment.

[22]   I would be prepared to take into account, to the extent I am able, any other mitigating factors that might be advanced at sentencing. I record, however, that I would not be prepared to accept as a mitigating factor Mr Huirama’s place in the hierarchy of offending. Mr Nabney contends I should allow a further discount to reflect the fact that he was relatively low in the hierarchy of offenders targeted by this particular police operation. That factor is relevant to the starting point, rather than as a discrete mitigating factor.

Time for acceptance

[23]   Mr Huirama seeks five working within which to accept the indication. I therefore direct that Mr Nabney is to file and serve a memorandum no later than 5 pm on Thursday 15 March 2018 advising the Crown and the Court whether Mr Huirama proposes to accept the indication.

Lang J

Solicitors:

Crown Solicitor, Tauranga Counsel:

W Nabney, Tauranga