R v Karetai HC Invercargill CRI 2010-025-2751

[2010] NZHC 2318

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2010-025-2751

QUEEN

v

DAVIS LYNLEY KARETAI

Hearing:         13 December 2010

Counsel:         M Sinclair for Crown

A S Tobeck for Prisoner

Sentencing:     13 December 2010

SENTENCING NOTES OF MILLER J

[1]      Mr Karetai, you appear for sentencing on four charges:

Offence	Section	Maximum penalty
Cultivation of cannabis	Misuse   of   Drugs   Act 1975, ss 9(1) and (2)	7 years imprisonment
Receiving  a  .22  calibre  BSA rifle valued at $500	Crimes Act 1961, ss 246 and 247	3 months imprisonment
Possession of firearm except for lawful, proper, and sufficient purpose	Arms Act 1983, s 45	4 years imprisonment or $5000 fine

R V DAVIS LYNLEY KARETAI HC INV CRI 2010-025-2751  13 December 2010

Possession    of   equipment    for cultivation

Misuse   of   Drugs   Act

1975,  ss  12A(2)(a)  and

(3)(b)

5 years imprisonment

[2]      The District Court has declined jurisdiction to sentence and remanded you to this Court.

[3]      The facts are that on the 2nd   August the police executed a search warrant at your property, which you had been renting since June, and found you there with your brother.  Anticipating what they would find, you announced that all of the cannabis plants were your responsibility and you indicated that there was a loaded rifle beside your bed.

[4]      The house contained four bedrooms.  In the first of them, the police found 12 mature cannabis plants growing under high density discharge lamps.  In the second bedroom there were a further 16 mature plants growing under lamps.  In the third, 20 mature plants were growing under lamps, making a total of 48 mature plants in all. In  the  fourth  bedroom  there  were  52  cannabis  seedlings  being  incubated  in  a wardrobe under lights.

[5]      The operation was moderately sophisticated.  The lights were controlled by ballasts and electronic timers, and the rooms were lined with polythene to reflect light.  An extraction fan system had been set up in the ceiling of each of the rooms, and you had illegally wired the growing operation to the mains power so that the usage was not metered.  I note that you have not been charged with the theft of the electricity which you used in this manner.

[6]      The rifle was a .22 calibre weapon.   It was loaded, with 11 rounds in the magazine, and was located by your bed together with an axe.  You explained that you had received the firearm from an associate who had taken it in a burglary and that you had it for protection.  You admitted starting the operation in June when you moved to the address, but you also said that you had been growing cannabis for about a year.  You expected to get at least five ounces from each plant and planned to sell them for $350 to $380 per ounce, below the market price.  Even on that basis,

the plants would generate a profit of between $56,000 and $60,000 alone.   The operation was obviously intended to be of a durable nature;  one does not set up an operation of this sort for a single crop.  Had you grown three crops per year, which was easily possible, the profit would have been substantial.

[7]      You are aged 49, and you been on an unemployment benefit for two years after having lost your former job as a wool scourer when the firm closed down.  You say, and I’m more than happy to accept, that jobs are not easy to come by.  It is a matter of regret that you have taken to growing drugs for an income as a result of that.  There is no indication of remorse.  You have a substantial list of convictions, mostly for dishonesty and some serious, and you have served terms of imprisonment. But none of those convictions involved drugs and the last of them was in 1997, so I will not treat them as an aggravating factor.

[8]      Turning to the sentencing principles, your case falls at the top end of Band 2 in R v Terewi [1999] 3 NZLR 62, which indicates that an appropriate starting point will be between three and four years imprisonment.[1]    Having regard to comparable cases which I will list in my sentencing notes, I adopt a starting point of three and a half  years  imprisonment.[2]    The  takes  into  account  the  charge  of  possessing equipment for cultivation for which you will get a concurrent sentence.

[1] [1999] 3 NZLR 62.

[2] R v Bin Af If [2009] NZCA 290, R v Harris [2009] NZCA 471, R v Anderson HC Christchurch CRI 2009-009-5799, 29 October 2009, R v Tronson HC Palmerston North CRI 2008-031-464, 19 November 2008, R v Butler CA221/04, 4 October 2004.

[9]      The charges of receiving and possessing the firearm require a cumulative sentence, the starting point for which I fix at 12 months.[3]    I say that because the Court must deter those who attempt to acquire and use firearms for protection in connection with drug dealing offences.

[3] Faataape  v  Police  HC  Rotorua  CRI  2009-463-73, 30  November  2009,  Long  v  Police  HC Palmerston North CRI 2009-454-39, 8 October 2009, R v Miller HC Hamilton CRI 2007-419-138,

28 February 2008, Doctor v Police HC Tauranga CRI 2008-470-30, 16 October 2008.

[10]     In mitigation, you pleaded guilty at the earliest opportunity, and while you are not remorseful you did readily accept responsibility and co-operate with the police.  At the time you entered your plea, you were entitled to a discount of one- third for that, and that is the discount that you will receive.

[11]     That  would  result  in  an  end  sentence  of  two  years  and  11  months imprisonment.

[12]     I must now stand back and assess the totality of your offending, recognising in particular that while the firearm offence requires a cumulative sentence, it is related to the drug offences.  I think an adjustment is required for totality, and I fix that at three months, resulting in an end sentence of two years and eight months imprisonment.

[13]     So, Mr Karetai, your sentence is as follows:

a)       On the charge of cultivating cannabis your sentence is two years and three months imprisonment;

b)On the charge of possessing the firearm your sentence is five months imprisonment, that is cumulative on the cultivation sentence;

c)       On the charge of possessing equipment, your sentence is 12 months imprisonment, that is concurrent, meaning you serve it at the same time;

d)On the charge of receiving the firearm, your sentence is one month’s imprisonment, also concurrent.  So that is an effective sentence of two years and eight months imprisonment.

[14]     There will be an order for destruction of the drug materials and equipment.

[15]     You may stand down.

Miller J

Solicitors:

Preston Russell Law, Invercargill for Crown

J K Fraser, Invercargill for Prisoner