R v Morgan - [2013] NZHC 2549

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-016127

CRI-2012-092-015428 [2013] NZHC 2549

THE QUEEN

v

RICHARD MORGAN MAHESWARAN MAHENDIRAN

Hearing: 1 October 2013

Appearances:

J MacGibbon for the Crown
G A Harvey for Defendant, Morgan
C R Newton for Defendant, Mahendiran

Judgment:

1 October 2013

SENTENCING NOTES OF WOOLFORD J

Counsel: Public Defence Service (G Harvey), Manukau.
C Newton, Manukau.

Solicitors: Meredith Connell (J MacGibbon), Auckland

R v MORGAN AND MAHENDIRAN [2013] NZHC 2549 [1 October 2013]

[1] Maheswaran Mahendiran, you appear for sentence having pleaded guilty to one count of cultivation of cannabis,1 which carries a maximum penalty of seven years imprisonment, and one count of possession of cannabis for supply, which carries a maximum penalty of eight years imprisonment.2 Richard Graham Morgan, you appear for sentence having pleaded guilty to one count of being a party to the cultivation of cannabis, which carries a maximum penalty of seven years imprisonment.3

Factual background

[2] Mr Mahendiran, on 27 July 2012 you signed a lease agreement for a commercial property in an industrial area in Howick. On that same day you also commenced a power subscription for that property.

[3] On 28 November 2012, the Police executed a search warrant at the property. They found a sophisticated, custom-built two level cannabis cultivation operation which covered around 30 square metres. The search revealed a total of 227 cannabis plants in various stages of maturity and with heights ranging from just over half a metre to one and a half metres. In total, the cannabis weighed a little more than
27 kgs. The Police also found a 20 litre drum which contained two bags each containing 450 g of high quality cannabis buds. A large number of snap-lock bags and other items involved in the supply of cannabis were also found. Neither of you were present when the Police arrived, but a number of documents and other personal items belonging to you, Mr Mahendiran, were located.

[4] Several hours after the Police arrived on 28 November you, Mr Morgan, were seen driving past the property. You were stopped and both you and your vehicle were searched. On your person the Police found a snap-lock bag containing $800 in mostly $20 denominations and in your car a total of $4,700 was found, again in small denominations. The Police also found two receipts in your wallet, one each from The Warehouse and Bunnings, and subsequent inquiries revealed evidence of
you purchasing items used in the cultivation operation.

1      Misuse of Drugs Act 1975, s 9(1).
2      Misuse of Drugs Act 1975, s 6(1)(f).
3      Misuse of Drugs Act 1975, s 9(1) and Crimes Act 1961, s 66(1).

Personal circumstances

Mr Mahendiran

[5] Mr Mahendiran, you are 30 years old. You are married and you and your wife are about to have your first child together. You have completed tertiary studies in New Zealand and have recently been employed as a truck driver and digger operator. Your employer sees you as a valuable…

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 Morgan

Details

AGLC: R v Morgan [2013] NZHC 2549
Case: [2013] NZHC 2549
Decision Date: 1 October 2013

CaseChat Overview and Summary

Maheswaran Mahendiran and Richard Morgan appeared in the High Court of New Zealand to face sentencing for their involvement in a cannabis cultivation operation. Mahendiran had pleaded guilty to cultivating cannabis and possessing it for supply, while Morgan admitted to being a party to the cultivation of cannabis. The court was tasked with determining the appropriate sentences for each defendant, taking into account their respective roles in the offending and other relevant factors. The Crown argued for sentences reflective of the commercial nature of the operation, while the defence sought lesser sentences, citing various mitigating factors and the defendants' guilty pleas.

The court began by establishing the starting points for the sentences, considering the severity and nature of the offending. For Mahendiran, the court determined a starting point of three years imprisonment, given the sophistication and commercial intent of the operation. The court then adjusted this starting point by considering personal mitigating factors, such as family support and rehabilitation efforts, reducing the sentence by four months. A further discount of 25% was applied for Mahendiran's guilty plea, resulting in a final sentence of two years imprisonment. Given Mahendiran's personal circumstances and the need for the least restrictive outcome, the court opted for a community-based sentence involving community work, community detention, and supervision with a requirement to participate in a drug and alcohol counselling programme.

For Morgan, the court set a lower starting point of two years imprisonment, reflecting his lesser culpability as a party to the offending. An uplift of three months was applied to account for his criminal history, and a discount of slightly over 20% was granted for his guilty plea. The court also considered the time Morgan had already spent in custody, reducing his sentence by 20 months to avoid double punishment. Consequently, Morgan was sentenced to six weeks imprisonment. The court declined to order the forfeiture of the cash found on Morgan, as it was not satisfied that the money was derived from the cannabis offending.

The court's final orders included sentencing Mahendiran to 350 hours of community work, six months of community detention, 12 months of supervision, and an order for reparation. Morgan was sentenced to six weeks imprisonment, and both defendants were given the opportunity to appeal their sentences.

Orders