R v Mains - [2015] NZHC 2750

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-025-2416 [2015] NZHC 2750

THE QUEEN

v

MAXWELL JOHNS MAINS

Hearing: 5 November 2015

Appearances:

EG Higbee for the Crown
CR Ruane for Mr Mains

Judgment:

5 November 2015

SENTENCING REMARKS OF MANDER J

[1] Maxwell Mains you are for sentence this morning on two charges of possessing cannabis for the purpose of sale, and two charges of selling cannabis. In respect of three of those charges, you have been indicted together with your co-offender, Mr Brian McCarthy.

[2] The offending was detected as a result of a Police operation targeting the large scale cultivation of cannabis in Western Southland. Your offending involves the commercial distribution of cannabis which resulted from this cultivation in respect of which Mr McCarthy was a, if not, the, central figure. The four charges concern the
2012 growing season and each relates to your involvement in either the sale of cannabis or your joint possession of large amounts of cannabis for sale.

[3] There has been a contest between the Crown and yourself regarding the circumstances relating to two of the charges. However, as I have indicated to counsel

R v MAINS [2015] NZHC 2750 [5 November 2015]

this morning, given my approach to your involvement I do not consider those differences to be particularly material, nor do I consider them significant in setting the appropriate sentence for your offending.

[4] It is first necessary for me to set out the individual circumstances of the particular charges to which you have pleaded, although, it is the overall effect of those circumstances reflective of your involvement in this cannabis operation which, in my view, is most important to the approach to be taken in sentencing you.

[5] On 28 May 2012 when the police terminated its operation, they found very large quantities of cannabis that had been processed and stored on council owned scrub land adjacent to an associate’s address in Queenstown. An area on that land had been cleared for the purpose of drying and processing cannabis. There were a series of tunnel type tracks in the scrub that led to another area that had been used to manicure and package cannabis into one pound bags. In that area, police located two large plastic bins that contained equipment used to process and manicure cannabis, including electronic scales.

[6] The police located five large plastic bins that contained 16 one pound bags of cannabis, and 37 pounds of loose cannabis. In total, 53 pounds of dried premium grade cannabis head was located and recovered. The value of this cannabis can conservatively be estimated as worth some $170,000.00 if sold by the pound, and if broken down into retail amounts, considerably more.

[7] In jointly possessing this cannabis, either as a principal or as a party, you were in league with Mr Brian McCarthy who, over a number of years has been involved in the cultivation, harvesting and distribution of cannabis. He undoubtedly was the central figure in…

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 Mains

Details

AGLC: R v Mains [2015] NZHC 2750
Case: [2015] NZHC 2750
Decision Date: 5 November 2015

CaseChat Overview and Summary

Maxwell Johns Mains was sentenced for two charges of possessing cannabis for the purpose of sale, and two charges of selling cannabis. The charges stem from a police operation targeting large-scale cannabis cultivation in Western Southland. Mains assisted Brian McCarthy, the central figure in the wider cannabis operation, in harvesting and distributing cannabis. The court considered Mains' involvement in the large-scale commercial cannabis operation, where he played an active part in processing, packaging, and distributing cannabis. The court accepted that Mains' role was secondary to McCarthy's but still significant, falling under Category 3 of Terewi for large-scale commercial cannabis offending. The court determined a starting point of three years and nine months' imprisonment for Mains, adjusting for his lesser role in the operation. The court granted a two-month credit for personal mitigating factors and an additional one-month credit for Mains' guilty plea, resulting in a final sentence of three years and six months imprisonment to be served concurrently.

Orders