R v Kunac HC Rotorua CRI 2010-069-601
[2010] NZHC 1203
•15 July 2010
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2010-069-000601
THE QUEEN
v
BRUCE MICHAEL KUNAC
Charges: Possession of Class C drug cannabis for sale x1
Cultivation of Class C drug cannabis x1
Unlawful possession of a firearm x2
Plea: Guilty
Appearances: S T Simmers for Crown
O Brittain for Prisoner
Sentenced: 15 July 2010
Possession of cannabis for sale and cultivating cannabis – 3 years 2 months’ imprisonment;
Unlawful possession of firearm x2 – 3 months’ imprisonment concurrent
Total: 3 years 2 months’ imprisonment
SENTENCING NOTES OF VENNING J
Solicitors: Crown Solicitor, Rotorua
Copy to: H Edward, Rotorua
O Brittain, Rotorua
R V KUNAC HC ROT CRI-2010-069-000601 15 July 2010
[1] Bruce Michael Kunac, you have pleaded guilty to two offences under the Misuse of Drugs Act 1975, namely possession of a Class C drug cannabis for sale, the maximum penalty for which is eight years’ imprisonment and cultivation of a Class C controlled drug cannabis, the maximum penalty for which is seven years’ imprisonment. In addition you pleaded guilty to two charges of unlawful possession of a firearm, the maximum penalty for which is four years’ imprisonment.
[2] The District Court declined jurisdiction following the entry of guilty pleas because of the extent of your drug offending and you are now for sentence in this Court.
[3] In November 2009 the police became aware of a large cannabis nursery in the Kaingaroa Forest and as a result set up covert surveillance. That disclosed a nursery containing more than 416 cannabis seedlings. As a result of the surveillance you were seen to be tending the plants on four separate occasions between 24 November
2009 and 16 December 2009. Amongst other things you removed the plot’s camouflage. You dug a plot in which to grow the plants to maturity where 14 plants were later found and you delivered and collected produce trays of cannabis plants.
[4] On 19 March 2010 police returned to the site and located three mature cannabis plants.
[5] On 21 March 2010 a search of your home located six plastic bags, four of which contained approximately 16.95 kilograms of dried cannabis material, of which about 4.5 kilograms was high quality cannabis head material. The police also found two large tarpaulins containing 138 dried cannabis plants with an estimated yield in excess of 21 kilograms of quality head.
[6] In addition a .22 and .308 calibre rifle were also each located behind the back seat of your vehicle.
[7] The estimated yield of the 416 cannabis seedlings was assessed as approximately 25.5 kilograms of cannabis with a street value of between $100,000 and $168,000. Initially there was an issue as to the value of the cannabis seedlings
but counsel agree the disputed facts hearing was unnecessary and agreed that the range was between $100,000 and $168,000 and as you have heard in my discussion with counsel on the authorities, even if I take the most favourable from your point of view and consider it closer to $100,000 there is really very little difference.
[8] You are 41 years old. You have been living with your partner of 21 years and daughter and grandson. You have the support of your partner and family and I acknowledge their presence in Court supporting you today. You report a good upbringing. You left school through the sixth form without qualifications but you completed a building apprenticeship and you have worked as a builder for seven to eight years, from time to time also selling firewood and doing concrete. You do not have savings or assets but nor do you have any fines. You are in good health but you do have, and have had for some time a harmful pattern of cannabis use. While you do not consider you have an addiction I am told by counsel that since your remand in custody you have stopped your use of cannabis.
[9] Your explanation for your offending was that you are growing cannabis so you did not have to buy it. You suggest an associate was involved in the offending but you declined to assist the police in relation to his identity. You say if you had known how serious what you were doing was in terms of penalty you would have changed.
[10] Your explanation for the possession of the firearms is that although your firearms licence was suspended when you were first convicted for cultivating cannabis you held on to the guns due to your love of hunting. I accept from the material counsel has shown me, including the photographs, that you are an experienced hunter, and I accept that the presence of the firearms may not be as sinister as the presence of firearms can sometimes be in relation to drug offending. They were, however, still held by you unlawfully.
[11] The pre-sentence report states that because of your previous offending you are assessed as a medium risk of re-offending and imprisonment is recommenced.
[12] I have this morning been referred to two references in your support and I acknowledge that not only are you a good worker but that you are a good supporter of your family and those close to you.
[13] You do have a number of previous convictions, some relate to unlawful hunting and driving but in 1995 you were convicted of a count of cultivation of cannabis and possession of cannabis for supply. You received six months’ imprisonment. However, I accept that given the length of time that has passed, despite those previous convictions they can properly be regarded as historical and I am not going to uplift your prison sentence for those.
[14] The Sentencing Act requires that in sentencing you I bear in mind a number of purposes and principles. In your case I have regard to the following purposes:
•the need to hold you accountable for the harm done to the community by the presence of and availability of illegal drugs;
•the need to promote in you a sense of responsibility for and acknowledgement of that harm;
• the need to denounce your conduct;
•the need to deter you and others like you from committing the same or similar offences;
•finally I have regard to the need to assist in your rehabilitation and particularly to impose the least restrictive sentence appropriate.
[15] I must also take into account the principles of sentencing, including:
•the need to take into account the gravity of your offending, including the degree of culpability;
•the seriousness of this type of offending in comparison with other types of offences;
•the need to consider the general desirability of consistency with appropriate sentencing levels;
•the need to take into account the particular circumstances of you, the offender, that would mean an ordinarily appropriate sentence would be disproportionately severe; and
• the need to consider the least restrictive outcome as I have said.
[16] The Crown submit the cultivation charge should be the lead offence. Emphasis was placed in their submissions on the premeditation associated with your offending and the commerciality of it. The Crown suggest your offending falls between the higher end of category 2 and the lower end of category 3 of R v Terewi[1] which is the leading authority for sentencing in this area. The Crown suggest a start point of four years is appropriate with an uplift to four and a half years to reflect the possession for supply charge. The Crown also seek a cumulative sentence of six months’ imprisonment on the firearms, resulting in a five year start point.
[1] R v Terewi [1999] 3 NZLR 62.
[17] Ms Brittain has accepted, adopting Mr Edward’s written submission, that your offending is towards the lower end of category 3 of Terewi with a start point of four years accepted as appropriate. It is acknowledged properly that there must also be an uplift for the cannabis for supply charge although Ms Brittain submitted there should be no uplift in relation to the firearms offending.
[18] As you have heard I accept that your possession of the firearms was not associated with your drug offending but, it is separate offending and does require an uplift of a limited amount.
[19] As I have discussed the leading authority is Terewi. There are also a number of other cases I have had regard to in fixing the appropriate sentence. I refer to the cases of R v Reti;[2] R v Merton;[3] R v Yates;[4] R v Cross;[5] and R v Griffin.[6] I refer by
[2] R v Reti HC Wellington CRI-2004-091-002330, 15 October 2004.
[3] R v Merton HC Auckland CRI-2009-044-002520, 7 May 2010.
[4] R v Yates HC Whangarei CRI-2009-029-001305, 22 April 2010.
[5] R v Cross HC Hamilton CRI-2005-079-000705, 6 October 2005.
[6] R v Griffin HC Dunedin CRI 2006-012-001210, 25 July 2006.
way of example to Merton. In that case there were plants worth on the accused’s submission, somewhere around $100,000 and that the police argued closer to
$400,000. The Judge took a start point of four years. In Yates there was a street value of a cannabis crop of about $104,000. The Judge took a start point of four years and in Cross there was a crop estimated to be worth about $140,000 and the Judge took a start point of four years nine months’ imprisonment.
[20] Of course as this is drug offending you must be sentenced to imprisonment and the issue for the Court is the length of the sentence.
[21] In your case Mr Kunac I take a start point of four years’ imprisonment for the cultivation charge. I uplift that by six months to take account of the supply charge and I further uplift it for the unlawful possession of firearms by three months in your case as opposed to six months, which is often imposed.
[22] There are no other personal aggravating factors. As I have noted I do not propose to uplift any further for your previous offending.
[23] As to mitigating factors, given your previous history I cannot take good character into account. I can, however, take into account the major mitigating factor, which was your early guilty plea. That early guilty plea is a tangible recognition of your acceptance of responsibility and remorse. It came at an early stage and I am going to give you the full amount of the discount available of one-third for that.
[24] Mr Kunac would you please stand. On the charges of cultivating cannabis and possession of cannabis for supply you are sentenced to imprisonment for three years two months. On the charges of unlawful possession of firearm you are sentenced to imprisonment for three months, but that is concurrent, so the effective sentence is three years two months.
[25] There will be an order for forfeiture and destruction of the cannabis and for forfeiture of the firearms to the police. At a late stage during the course of oral submissions counsel for the Crown raised the issue of forfeiture of the vehicle. I am
not prepared to make an order for forfeiture of a vehicle on an oral application made at a late stage.
[26] That is all for this morning Mr Kunac. You will have to serve the sentence obviously but with the support of your family and, if you address what was a former addiction, then there is no reason for you to be back before this Court again. You have other talents, and you can earn money and look after your family in other ways.
[27] Stand down.
Venning J
0
0
0