R v McCarthy
[2013] NZHC 3078
•19 November 2013
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2012-025-002416 [2013] NZHC 3078
THE QUEEN
v
BRIAN ANTHONY MCCARTHY
Hearing: 19 November 2013
Appearances: M J Thomas for Crown
J A Westgate for Prisoner
Judgment: 19 November 2013
SENTENCING REMARKS OF D GENDALL J
[1] Brian Anthony McCarthy, you appear for sentence following guilty pleas to
10 counts of cultivation of cannabis, pursuant to ss 9(1) and 9(2) of the Misuse of Drugs Act 1975 the maximum penalty for which is seven years imprisonment; three counts of possession of cannabis for the purpose of sale pursuant to ss 6(1)(f) and
6(2)(c) of the Misuse of Drugs Act 1975, the maximum penalty for which is eight years imprisonment; one count of conspiracy to sell cannabis pursuant to s 6(2A) and
6(2A)(c) of the Act, the maximum penalty for which is seven years imprisonment; and two counts of selling cannabis pursuant to s 6(1)(e) and s 6 (2)(c) of the Act, the maximum penalty for which is eight years imprisonment.
[2] The defendant, Mr McCarthy is a 63 year old man and was a major participant in the Operation Canary cannabis drug ring. He set up substantial cannabis plots, tended to them, harvested the cannabis and then also sold it. More
facts from this offending will appear later in this decision.
R v BRIAN ANTHONY MCCARTHY [2013] NZHC 3078 [19 November 2013]
[3] Sections 7 and 8 of the Sentencing Act 2002 are of particular relevance to the present sentencing and provide for first, the purpose of denouncing the offender’s conduct and secondly, the purpose of deterring the offender and others from committing similar offending.
[4] Turning first to aggravating factors here, the following aggravating factors are present. First, as to the duration of the offending to which the defendant has pleaded guilty, this offending started in October 2008 and continued through to the termination of Operation Canary on 28 May 2012.
[5] Secondly, as to the extent of the defendant’s involvement in the cannabis operation, he is for sentence here on an array of charges which show his involvement in all levels of that operation.
[6] Next, as to premeditation factors, the nature of the offending, particularly the cultivation charges, inherently require premeditation and that is increased here in my view by the ongoing nature of the offending.
[7] Next, as to the amount of cannabis involved with respect to the cultivation charges, the defendant has pleaded guilty to the cultivation of 10 separate cannabis plots containing a substantial quantity of cannabis plants. Although the exact quantity of the total plants in some of the plots is unknown, seven of the 10 cannabis plots contained a total of 361 plants growing in them.
[8] Next, as to issues concerning the amount of cannabis sold here, the two sales to which the defendant has pleaded guilty were for 2 oz and 13 pounds respectively.
[9] Next, with respect to the amount of cannabis which was in the defendant’s possession for sale, one of the charges for possession for the purpose of sale is inter- related with the conspiracy to sell, with the defendant selling his co-conspirator
10 pounds of cannabis for the co-conspirator to then on-sell. And, in this area, when the police executed the search warrant at 188 Peninsula Road, Kelvin Heights, Queenstown, a total of 53 pounds of premium cannabis head was located. This was
cannabis jointly owned by the defendant and gives rise to a second possession for the purpose of sale charge.
[10] Next, regarding the sophistication of the operation, the ongoing cannabis operation in which the defendant was the principal offender, involved sophisticated cannabis plots. The offenders wore disguises and some carried firearms. The harvested cannabis which the police located was premium quality and the majority of the cannabis had been packaged into sellable one pound bags.
[11] I turn now to consider mitigating factors. The mitigating factors present in this case are first the defendant’s prior good character and, secondly, the defendant’s co-operation, his contrition and his guilty plea.
[12] Turning now to the sentencing principles and tariffs involved, the guideline judgment in relation to cannabis offending is R v Terewi.1 It is clear in my view that the scale of the current offending, the defendant’s involvement in all aspects of the operation, the amount of cannabis involved and the duration of the offending, places it within category 3 of Terewi and Mr Westgate, counsel for the defendant before me appeared to accept this. The Court of Appeal has detailed category 3 as follows:
Category 3 is the most serious class of such offending. It involves large scale commercial growing, usually with a considerable degree of sophistication and organisation. A starting point would generally be four years or more.
[13] Several recent cases also provide useful guidance here. The first is the case of R v McMahon2. This involved a guilty plea to five charges of possession of the Class C controlled drug cannabis for the purpose of supply, one charge of selling cannabis and one charge of money laundering. In McMahon the defendant was involved with her son in a substantial drug dealing operation with over 150 regular customers for a period of seven years. During the period of police surveillance it was noted that there were an average of 22 sales per day, the exact quantity of cannabis sold to the purchasers was unknown, but it was clear the defendant
regularly sold ounces, half ounces, $50 bags and $20 tinnies and a one pound bag
1 R v Terewi [1999] 3 NZLR 62.
2 R v McMahon [2012] NZHC 3372.
had been packaged ready for sale. The exact amount of revenue created through the cannabis operation was also unknown, however even on the defence calculations it was in the range of $2 million to $2.5 million.
[14] In the High Court MacKenzie J adopted a starting point of eight years imprisonment in relation to the cannabis offending. This was then uplifted to take into account the separate criminality involved in the money laundering charge. The sentence was uplifted by a further six months for the defendant’s prior cannabis convictions. Despite the fact that the Crown were pursuing forfeiture orders for the recovery of the profit obtained by the defendant through her offending, no discount was given as MacKenzie J determined that the likely recovery would represent less than the total profits obtained throughout the operation. After a discount for the defendant’s guilty plea, an end sentence of six years and nine months imprisonment was imposed.
[15] In the present case before me, both the Crown and the defendant accept that the offending in McMahon is more serious than the present, given the number of sales involved. However, McMahon is relevant to the present sentencing as it provides a reference point for more serious offending that nonetheless fits within the same category as the present. Both cases also involved offending over an extended period of time and both cases involved the interplay between criminal sentencing and potential civil forfeiture. In addition it needs to be noted that the present offending involved both selling cannabis (including possession for sale) and cannabis cultivation.
[16] The next case is R v Ngawaka.3 This was a sentencing following guilty pleas to one charge of cultivating cannabis and one charge of possession of cannabis for the purposes of sale. When police executed a search warrant at the address of the defendant in question they located approximately 8.5 kg of cannabis. Approximately half of this was cannabis cuttings, the other half being cannabis heads or buds. Located at the rear of the property were three cannabis plots containing a total of 540 cannabis plants. The plots were surrounded by electric fence systems. In that case Rodney Hansen J adopted a starting point at the bottom of category 3 of Terewi, this
being four years imprisonment. In doing so His Honour had regard to the fact that the offending involved a large scale commercial growing operation, but the features of more sophisticated professional operations were not present, such as the absence of significant security measures or firearms. In addition, His Honour noted that the harvesting and processing had only just begun when the police executed the search warrant. In that decision at [19] Rodney Hansen J stated that the closest facts to the offending in Ngawaka were R v Herton where 503 plants were located growing with an estimated yield of between $546,000 and $875,000. The equivalent amount of plants His Honour said in the case before him would have yielded a potential value of between $1.35 million and $1.62 million. From a starting point of four years imprisonment in Ngawaka, His Honour reduced the sentence to three years for the defendant’s guilty plea and genuine remorse.
[17] Similarities between the present case and Ngawaka are:
(a) The cultivation of a significant amount of cannabis; and
(b)The following on of harvesting and processing of the cannabis plants into cannabis for the purpose of sale.
However, all parties before me accepted that the present offending is more serious than that in Ngawaka, as it incurred over a significantly greater duration and also the sophistication in the present case was more significant with the use of disguises, growing in areas away from the defendant’s home and the presence of firearms.
[18] The next case to be considered is R v Hawes4. This involved a sentencing following a guilty plea on one charge of possession of cannabis for the purpose of sale. The case involved a site in a remote area of the Kaingaroa forest which police located, this having been used for drying and processing cannabis. Good quality cannabis was found at the site, comprising 8.5 kg of partially manicured cannabis head and 21 kg of unmanicured cannabis. The defendant there admitted ownership of the cannabis as well as travelling to the Kaingaroa forest for the purposes of harvesting and drying. Venning J adopted a starting point of four years
imprisonment, being the bottom of category 3 of Terewi, given the amount of cannabis involved. This was reduced to take into account the defendant’s genuineness willingness to address his problems and his guilty plea, with an end sentence of two years and six months imposed.
[19] As to similarity between Hawes and the present offending, in both cases they involved offending at remote locations where cannabis had been harvested and processed for the purpose of sale. However the ongoing nature of the present offending and its sophistication significantly increase its seriousness above that in Hawes in my view.
[20] Finally, in the decision in R v Wharehinga5 a District Court sentence of three and a half years imprisonment on cannabis charges was appealed but that appeal was dismissed by the Court of Appeal. The sentence was imposed for charges of cultivation of cannabis, possession of cannabis for supply, charges of producing cannabis oil and possession of cannabis oil for supply. When police executed a search warrant at the premises jointly occupied by the appellant and his brother, they located 328 cannabis plants and 5.7 kg of cannabis plant. Equipment for the cultivation of cannabis and production of cannabis oil was also present. The value of the plants and oil was estimated there at approximately $375,000. In that case the District Court Judge adopted a starting point within category 3 of Terewi, this being five years imprisonment. The sentence was reduced to three years and six months imprisonment to take into account the appellant’s youth, his efforts to make a clean start, and his guilty plea.
[21] In comparing that case with the case before me, the Crown acknowledges that the offending in Wharehinga involved Class B offending but submits this was not a significant feature of the sentencing. The similarity between the present offending and Wharehinga is the large scale outside cultivation of cannabis plants worth significant value. In addition I am satisfied the offending in the present case is more serious than that in Wharehinga because of the ongoing nature of the operation.
[22] In my view the present offending falls somewhere between that in McMahon on the one hand, which is similar in terms of the extended duration of the offending and its sophistication, and the offending in Ngawaka, Hawes and Wharehinga on the other, which share the commonality of cultivation of significant numbers of cannabis plants, but were all for significantly shorter periods than the present offending.
[23] A starting point in the vicinity of six years imprisonment in my view is appropriate in this case. Before me, Mr Westgate for the defendant indicated that he could not sensibly argue against a starting point of six years imprisonment. From that starting point, the defendant is entitled to a full discount, in my view, for this guilty plea of 25 per cent. Before me, the Crown acknowledged also that this was appropriate. A further discount for the defendant’s lack of previous convictions, and remorse, of 5 per cent is appropriate here. In my view, however, the further discount which appears to have been sought by the defendant, as recognition on the part of the Court that as a result of this offending he forfeited not only a significant amount of money but also other assets (together with a residence valued at approximately
$580,000), is not appropriate here. Like the determination of His Honour MacKenzie J in R v McMahon, I am not prepared here to give a further discount for the fact the Crown is pursuing forfeiture orders, as I am not satisfied that the likely recovery would represent at least the total profits obtained by the defendant throughout the operation.
[24] That would leave an end sentence of four years and three months imprisonment. As I see it, that is of sufficient length to denounce and deter here whilst at the same time not to be crushing to this defendant, acknowledging the requirement that I am to impose the least restrictive outcome in this case.
[25] Mr McCarthy, I am accordingly sentencing you to a final end sentence of four years and three months imprisonment.
........................................................................
D Gendall J
Solicitors:
Preston Russell Law, Invercargill
John Westgate, Dunedin
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