R v Karipa
[2013] NZHC 525
•19 March 2013
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI 2012-042-1297 [2013] NZHC 525
QUEEN
v
ROSS KARIPA
Hearing: 19 March 2013
Counsel: S K O'Donoghue for Crown
A J D Bamford for Prisoner
Sentence: 19 March 2013
SENTENCING BY THE HON JUSTICE KÓS
[1] Mr Karipa, you have pleaded guilty to cultivation of cannabis,1 possession of cannabis for the purpose of sale,2 and sale of cannabis.3 You have also pleaded guilty to the unlawful possession of a restricted weapon4 and theft.5
[2] Because the range of sentences appropriate could exceed the two year maximum penalty in the summary jurisdiction for cannabis offending,6 the District
Court declined jurisdiction to sentence you. That task now falls to me.
1 Misuse of Drugs Act 1975, s 9(2).
2 Misuse of Drugs Act 1975, s 6(1)(f).
3 Misuse of Drugs Act 1975, s 6(1)(e).
4 Arms Act 1983, s 50(1)(b).
5 Crimes Act 1961, s 219 and s 223(c).
6 Misuse of Drugs Act 1975, s 9(3).
R v KARIPA HC NEL CRI 2012-042-1297 [19 March 2013]
Circumstances of offending
[3] Upon executing a search warrant at your house in Nelson, the Police found: (a) A large moderately sophisticated hydroponic system in a locked
bedroom. It included heat lamps, a fan extraction system, and a water pump. There were 39 mature cannabis plants growing (the crop from which had an estimated sales value of $35,100);
(b) 162 grams of dried cannabis head, made up of 57 grams of cannabis head in 19 ziplock bags (with a sale value of $50 each) and 6 ounces of dried cannabis head in 6 ziplock bags (with sale values of between
$250 and $500);
(c) 144 grams of other cannabis material; and
(d) two stun guns, one being in working order.
[4] Cellphone records obtained under a search warrant demonstrated that you had been selling cannabis for at least the previous month.
[5] Electric power to cultivate your crop had been diverted from the meter. It is estimated that 31.68 kWh of electricity, valued at $969.92, was stolen. Trustpower Ltd seeks reparation of that amount.
Personal circumstances, Pre-sentence Report and prior offending
[6] I now turn to your personal circumstances. You are 50 years of age and live in Nelson. You are a self-employed painter. You say in the material that I have received that you were unable to find work for a number of months and so you turned to growing cannabis to meet your financial commitments. Your plan, as I read it, was to use your cannabis sales proceeds to pay outstanding bills.
[7] You accept responsibility for this offending and that is very much to your credit. You are willing to pay reparation to the electricity supplier, as I have just heard again from Mr Bamford.
[8] However, you have a sizeable number of previous convictions, some 44 or so, including 8 for cannabis (including an earlier cannabis cultivation conviction in
1989). Although I do note you have had no convictions since 2006. That is a matter to your credit.
[9] You have drug and alcohol problems including a heavy cannabis habit. You have engaged with the Alcohol and Drug Service but you have failed to attend four appointments out of seven.
[10] You have a patchy history of compliance with conditions and community- based sentences. That would have been a significant consideration in relation to any decision on home detention had you been in the zone in which you would have been eligible for that sentence.
[11] You are reported by Department of Corrections to present a medium risk of reoffending. Your pre-sentence report recommends a sentence of imprisonment.
Purposes and principles of sentencing
[12] I am required to be mindful of the purposes and principles of sentencing according to the Sentencing Act 2002. Section 7 requires me to have regard to the need to hold you accountable for the harm done to the victims of your offending, and the need to promote a sense of responsibility for, and acknowledgement of that harm. I am there referring to the users of the product that you sell. I need to denounce your conduct and I do so, here and now. I need also to deter you and others like you from committing the same or similar offences in the future. I am also required to take into account the need to assist in your rehabilitation and reintegration into society in due course.
[13] In terms of s 8 principles, I must take into account the gravity of your offending, including your degree of culpability. I must have regard to the seriousness of the types of offence committed by comparison to other types of offending, as indicated by the maximum penalty prescribed. I must also consider the general desirability of consistency with appropriate sentences available. And then I need to impose the least restrictive outcome that is appropriate to your circumstances. I am also to take into account your personal circumstances.
Starting point
[14] In determining a starting point I draw no distinction between the sale, possession for sale and cultivation offences that you have committed. The Court of Appeal approved that approach in R v Gray.7 The Court there recognised that cultivation and possession for supply of cannabis are frequently “interrelated”8 offences, as is the actual sale of the cannabis product.
[15] The guideline judgment for cannabis offending is R v Terewi.9 Category two of Terewi encompasses small-scale cultivation of cannabis plants for a commercial purpose, and it generally warrants a starting point of between two and four years’ imprisonment.10 Phone records obtained by police show a pattern of sales over at least a month and clearly demonstrate the commerciality of your venture. In R v Andrews11 it was held that any commercial element, no matter how small, should generally attract a starting point of two to four years imprisonment, except in truly exceptional circumstances.
[16] In my view applying the most merciful approach I can Mr Karipa, your offending falls within the lower band of category two of Terewi. Bearing in mind starting points adopted in R v Connolly12 and R v Pearce,13 in my view a starting point of two years and six months’ imprisonment is appropriate for the cannabis
charges. That is as low as I can go.
7 R v Gray [2008] NZCA 224.
8 R v Gray [2008] NZCA 224 at [12].
9 R v Terewi [1999] 3 NZLR 62 (CA).
10 R v Terewi [1999] 3 NZLR 62 (CA) at [4].
11 R v Andrews [2000] 2 NZLR 205 (CA) at [9].
12 R v Connolly [2012] NZHC 1950.
13 R v Pearce HC Whangarei CRI 2008-088-2980, 9 December 2008.
[17] In accordance with the totality principle,14 I will uplift that starting point by three months to recognise the fact of your unlawful possession of the two stun guns. I impose an uplift of one month to recognise the theft of electricity. I am mindful of the Court of Appeal’s observation in R v McDonald15 that the presence of a stun gun is a significant element in terms of offending. It can be seen as an aggravating factor of the cannabis operation, driving the starting point up.
[18] That brings us to a final starting point of two years and ten months’
imprisonment.
Personal aggravating and mitigating factors
[19] I turn now to your aggravating and mitigating factors personal to you.
Prior convictions
[20] I impose a further uplift of one month to recognise the fact that you have been convicted of cannabis cultivation once before.16 That extra month is not intended to punish you again. Rather it marks the extra need to deter you, given that you were not deterred by your earlier sentence.
Reparation
[21] In mitigation I note that you are willing to make reparation for the cost of the electricity. I am prepared to discount your sentence by one month to recognise that.
[22] In combination, that leaves the starting point, before considering the effect of your guilty pleas, at two years and ten months’ imprisonment.
14 Sentencing Act 2002, s 85.
15 R v McDonald [2011] NZCA 97 at [11].
16 Sentencing Act 2002, s 9(1)(j).
Guilty Plea
[23] You pleaded guilty on 19 October 2012 after certain other charges were withdrawn. That was a substantial period of time after you were charged on 9 May
2012.
[24] I am not prepared in these circumstances to extend the maximum possible discount for an early guilty plea. That would have been the case had you pleaded guilty to these remaining charges much earlier, while still disputing the remainder. Accused persons who do not plead guilty at the earliest opportunity cannot expect the full leniency that the law provides.
[25] I will allow a discount of 20 per cent in your case.
[26] Accordingly the sentence of this Court is that you are sentenced to two years and three months’ imprisonment.
Formal sentence
[27] You are sentenced, formally, as follows:
(a) Possession of cannabis for the purposes of supply: two years, three
months’ imprisonment;
(b) Cultivation of cannabis: two years, three months’ imprisonment; (c) Sale of cannabis: two years, three months’ imprisonment;
(d) Unlawful possession of a restricted weapon: three months’
imprisonment;
(e) Theft: one month imprisonment. All sentences to be concurrent.
[28] The final sentence is therefore is two years and three months’
imprisonment.
[29] You are to pay reparation of $969.62 to Trustpower Limited.17 I understand that will be paid in a lump sum today.
[30] I order the forfeiture of the two stuns guns found at your house.18 The cannabis and growing equipment found at your house is forfeit by conviction to the Crown.19
[31] Mr Karipa it is a tragedy that you have erred in the way that you have after seven years in which your record has been a blameless one. You are going to serve a term of imprisonment because of the temptation that you fell into. But can I say that I wish you good luck in the course of your sentence and that, when you come of it again, you return to the course of good conduct that you previously had adopted.
[32] Stand down.
Stephen Kós J
Solicitors:
Crown Solicitor, Nelson
17 Sentencing Act 2002, s 12.
18 Arms Act 1983, s 69(1).
19 Misuse of Drugs Act 1975, s 32.
3
0