R v Ngawaka - [2012] NZHC 3047

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-029-000218 [2012] NZHC 3047

THE QUEEN

v

VAUGHN TE KATA NGAWAKA

Hearing: 15 November 2012

Counsel: TL Nicholls for Crown
SM Nicholson for Prisoner

Judgment: 15 November 2012

SENTENCING NOTES OF RODNEY HANSEN J

Solicitors: Marsden Woods Inskip & Smith, P O Box 146, Whangarei 0140 for Crown
(Email: crown@mwis.co.nz)
Mr SM Nicholson, P O Box 3, Kerikeri 0245.
(Email: stemicnic@xtra.co.nz )

R V VAUGHN TE KATA NGAWAKA HC WHA CRI-2012-029-000218 [15 November 2012]

Introduction

[1] Mr Ngawaka, you appear for sentence on one charge of cultivating cannabis and one charge of possession of cannabis for the purpose of sale. You pleaded guilty in the District Court. Because of restrictions on the maximum penalty that can be entered in the District Court, you have been transferred to this Court for sentence.

Facts

[2] On 29 February 2012, as part of a national operation, police executed a search warrant at your rural property at Panguru in the Hokianga. The house is set back from the road, up a gated and padlocked driveway, and is surrounded by bush. In and around the house the police found cannabis plant in various forms totalling some 8.5 kilogrammes in weight. There were 19 cuttings with cannabis heads drying in a lean-to. These totalled 1.5 kilogrammes in weight approximately. A further 15 cannabis cuttings, still to be dried, were stacked nearby. They weighed about 2.8 kilogrammes.

[3] The police found cannabis head or buds in four cardboard boxes (a total weight of 1.1 kilogrammes), in a plastic tub (2.1 kilogrammes approximately) and in four smaller boxes (266 grams). In addition, there were about 1.3 kilogrammes of dried cannabis leaf and 50 grams of loose stalks.

[4] To the rear of the house there were three cannabis plots. Two, each containing 70 plants, were surrounded by mesh cages to protect the plants from possums. In a separate location there was a plot containing approximately 400 cannabis plants ranging in height from 1½ to 3½ metres. All plants were in good condition and had been well cared for. That plot was surrounded by an electric fence system to protect the plants from predation.

[5] Police experts estimate that, if grown to maturity, each of the plants could of yield one pound of cannabis head. At a price of $2,500 - $3,000 per pound, the crop had a potential value of between $1.35m and $1.62m

Personal circumstances

[6] You are 51 years old man. You are one of six children, most of whom I am told live in Australia. Your father is still alive and maintains contact with you. I am told he has been regularly visiting you in prison.

[7] You have five children from two different relationships. You have no contact with your former partners but keep in touch with your children. The probation officer, who prepared your pre-sentence report, says that he spoke to one of your daughters who spoke highly of you and remains very supportive.…

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 Ngawaka

Details

AGLC: R v Ngawaka [2012] NZHC 3047
Case: [2012] NZHC 3047
Decision Date: 15 November 2012

CaseChat Overview and Summary

The defendant, Vaughn Te Kata Ngawaka, was convicted of cultivating and possessing cannabis for the purpose of sale, and was transferred to the High Court of New Zealand for sentencing. The court had to determine the appropriate sentence for the defendant, taking into account the nature and circumstances of the offence, as well as the defendant's personal circumstances and any aggravating or mitigating factors. The court considered the defendant's history of cannabis-related offending, his involvement in the community, and his financial and personal circumstances. The court also took into account the scale of the cannabis cultivation operation, which involved three plots of cannabis plants with a potential yield of between $1.35 million and $1.62 million. The court found that the defendant's offending fell into category 3 of R v Terewi, which involved large-scale commercial growing, and that the starting point for the sentence should be four years imprisonment. However, the court also found that the defendant's operation did not have many of the features associated with more sophisticated professional operations, and that a starting point at the lower end of category 3 was appropriate. The court imposed a sentence of three years imprisonment, with a 25 per cent discount for the defendant's early guilty plea and genuine remorse.

The court rejected the Crown's submission that the loss, damage or harm resulting from the offending should be treated as an aggravating feature, as any drug dealing involves harm to the community and is reflected in the prevailing sentences. The court also rejected the Crown's submission that premeditation should be treated as an aggravating feature, as preparation is plainly necessary to the cultivation of cannabis at any level. The court found that an uplift in sentence to recognise previous convictions for cannabis-related offending was excessive, as the convictions were of some antiquity and the previous dealing offending was at the lower end of the scale. The court found that mitigating factors such as the defendant's early guilty plea, full and frank disclosure to the police, and genuine remorse warranted a discount of 25 per cent. The court imposed a sentence of three years imprisonment, with a 25 per cent discount, on both counts. The court emphasised the importance of the defendant taking advantage of family support and finding a situation which does not expose him to the risk of coming back to court.

Orders