R v Karipa - [2013] NZHC 525

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Karipa

Details

AGLC: R v Karipa [2013] NZHC 525
Case: [2013] NZHC 525
Decision Date: 19 March 2013

CaseChat Overview and Summary

In the High Court of New Zealand, the case of R v Karipa was heard on 19 March 2013. The defendant, Ross Karipa, pleaded guilty to cultivating cannabis, possessing it for sale, and selling it. He also admitted to unlawful possession of a restricted weapon and theft. The District Court had declined jurisdiction to sentence him as the potential penalties exceeded the two-year maximum for cannabis offences under summary jurisdiction. The case was thus referred to the High Court for sentencing. The court found a sophisticated hydroponic cannabis cultivation system at Karipa's house, along with 162 grams of dried cannabis, 144 grams of other cannabis material, and two stun guns. Cellphone records revealed that Karipa had been selling cannabis for at least a month. He had a history of 44 convictions, including eight for cannabis, and a history of drug and alcohol problems.

The court was required to determine an appropriate sentence for the defendant's cannabis cultivation, possession for sale, and sale of cannabis, as well as the unlawful possession of a restricted weapon and theft. The court had to consider the defendant's personal circumstances, prior convictions, and the aggravating and mitigating factors in determining the sentence. The court found that the defendant's cannabis offending fell within the lower band of category two of Terewi, which generally warranted a starting point of between two and four years' imprisonment. The court applied the totality principle and uplifted the starting point by three months for the unlawful possession of the two stun guns and one month for the theft of electricity. The court also imposed a further uplift of one month to recognise the defendant's prior conviction for cannabis cultivation. The court discounted the defendant's sentence by one month to recognise his willingness to make reparation for the cost of the electricity. After considering all the factors, the court sentenced the defendant to two years and three months' imprisonment for the cannabis offences, three months' imprisonment for the unlawful possession of a restricted weapon, and one month imprisonment for theft. All sentences were to be concurrent. The court also ordered the defendant to pay reparation of $969.62 to Trustpower Limited, and ordered the forfeiture of the two stun guns and the cannabis and growing equipment found at his house.

Orders