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:  [email protected])

Mr SM Nicholson, P O Box 3, Kerikeri 0245.

(Email:  [email protected] )

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.   I was told by Mr Nicholson today that she would have been in Court today but had got the date of your sentence wrong.

[8]      You clearly have a harmful pattern of cannabis use.  You have been a regular user for twenty years, in your own words, “smoking a couple of ounces a week”.

[9]      You have explained to the probation officer, and also in your letter to me that I received this morning, how the offending grew out of your financial and other personal  circumstances.     Three  years  ago  you  moved  to  the  Hokianga  from Auckland, having been offered employment by your nephew in a woodcutting business.   Things did not work out.   You and another had cut a large quantity of firewood but you were never paid.  In simple terms, your nephew cheated you.

[10]     You tell me that you had been living in a caravan in the middle of a paddock. You were given the opportunity of moving into this property where you ended up growing cannabis.    That property was completely rundown and virtually uninhabitable from the sound of things.  You did a lot of work to clean it up and make it liveable but it was still very basic living.  There was no electricity and you were very isolated, living some 75 kilometres from Kaitaia.

[11]     For a period you received an unemployment benefit.   That ceased in 2011 because of non-compliance with Work and Income conditions.  You explained to the probation officer and also in your letter how difficult it was for you to comply with those conditions when, in order to do so, you had to hitchhike the 75 kilometres to Kaitaia.

[12]     You have also told me that while you were there living in that house, you did a lot of work in the community, including helping to clean up the cemetery and assisting the grave digger.

[13]     It was after you lost the unemployment benefit and any source of income that you say in your letter that you became depressed and desperate and thought that you would use the last of your money to grow the crop of cannabis.  That really confirms the probation officer’s analysis that the main drivers of your offending were financial stress and your own cannabis dependence.

[14]     Your history confirms a longstanding involvement with cannabis, including dealing offences in 1988, 1995 and 2000. You also have a number of convictions for offences of dishonesty.

Aggravating and mitigating features

[15]     The Crown has submitted that that the loss, damage or harm resulting from the offending should be treated as an aggravating feature, referring to the consequences to the community of drug dealing offences.  There is also reliance, as an aggravating feature, on premeditation as evidenced by the careful preparation for cultivation.  However, I agree with Mr Nicholson that neither of those considerations should be regarded as a relevant aggravating factor. Any drug dealing involves harm to the community and is reflected in the prevailing sentences and preparation is plainly necessary to the cultivation of cannabis at any level.

Starting point

[16]     I come now to consider where the starting point should be for the prison sentence  that  is  inevitable.    There  is  agreement  that  your  offending  falls  into category 3 of R v Terewi[1] involving, as it did, large scale commercial growing.  The starting point for offending in this category is four years imprisonment.  The issue which I have to consider is whether the appropriate starting point is four years or whether something more is required.

[1] R v Terewi [1999] 3 NZLR 62

[17]     While  the  sheer  number  of  plants  and  the  potential  yield  qualifies  your offending as category 3 undoubtedly, I am disposed to accept Mr Nicholson’s submission that it is towards the lower end of category 3.  I agree with him that your activities did not have many of the features associated with the more sophisticated professional operations that are often encountered.   There was, as Mr Nicholson says, an absence of security measures beyond the padlock on the gate.  No firearms were found.  While I accept Mr Nicholl’s submission that there was a considerable investment  in  equipment,  your  operation  did  not  have  the  sophistication,  the financial investment or the potential yields of the indoor operations which the courts commonly encounter.  I agree with Mr Nicholson that you appear to have been a one man  band,  not  part  of  a  criminal  group.    You  had  not,  of  course,  benefitted financially.   It seems that harvesting and processing had only just begun when the police arrived.

[18]     Estimates of value are very much in the realms of theory in cases of outdoor cultivation.   There are many threats to the ultimate harvest from both man and nature.   So, while the numbers are high, offending on this scale still tends to be categorised at the lower end of category 3, leaving room for the truly sophisticated large scale commercial operations.  A starting point at the lower end of category 3 is in keeping with the discussion in Terewi and the examples referred to in that case.  It also would appear to be in line with sentences imposed in this Court.

[19]     The closest on its facts which my researches have uncovered is a case called R v Hertnon[2]  in which the High Court sentencing Judge, Clifford J, also had the benefit of the imprimatur of the Court of Appeal on sentence in the context of a prior bail hearing.  That case also involved cultivation in a rural location of cannabis in three plots.  There were 503 plants in all with an estimated yield of 3,000 ounces and a projected value of between $546,000 and $875,000.  I observe, as an aside, that the

projected  yields  for  a  similar  number  of  plants  are  considerably  less  than  the estimates in your case, tending to confirm my earlier observation that such estimates are  very much  in  the  realms  of  theory.    In  Hertnon,  cannabis  leaf  was  found, weighing a total of 14.5 kilogrammes and which led to an additional charge of possession for supply.  The Court of Appeal had indicated an end point sentence on orthodox principles was likely to be three years, which suggested the starting point of 4 – 4½ years that was adopted by Clifford J.

[2] R v HertnonHC Palmerston North CRI-2007-031-536, 18 December 2009.

[20]     I take the view, based on that case and the other features of your offending that I have referred to, that a starting point at the bottom of the range of four years is right.

Aggravating and mitigating features of offender

[21]     In written submissions, the Crown proposed and your counsel did not demur, that there should be an uplift of six months to recognise previous convictions for cannabis-related offending.   As I have indicated in the course of discussion with counsel, I do not accept that an uplift is warranted.   The convictions are of some antiquity – the most recent was for simple possession in 2002.   Previous dealing offending was at the lower end of the scale as indicated by sentences of three months imprisonment for possession and cultivation of cannabis in 2000 and six months for possession of cannabis for supply in 1995.

[22]     In my view, an uplift in sentence would be excessive.  It would be tantamount to punishing you again for that offending and to imposing a premium for being a chronic cannabis user.

[23]     Mitigating factors are straightforward and uncontroversial. You have pleaded guilty at the earliest opportunity.  You made full and frank disclosure to the police. You have expressed what I accept to be genuine remorse.  A discount of 25 per cent is clearly warranted which would reduce your sentence to one of three years.

[24]     So, if you wouldn’t mind standing up, Mr Ngawaka, and I will formally

impose sentence on you.

Sentence

[25]     The sentence I impose on both counts is one of three years imprisonment.

[26]     You have described yourself in your letter as a desperate, stupid old man and that your greatest punishment is that you will not see your mokos grow up.  Well, having read your letter, Mr Ngawaka, I don’t accept that you are stupid.  You may have felt desperate but I believe that you have shown real insight into your situation. The sentence that I imposed on you will ensure that you most certainly will have the full opportunity to see your mokopuna grow up.  I very much hope that you will be able to take advantage of the family support that is available to you and find yourself able to live in a situation which does not expose you to the risk of coming back here.

[27]     You may stand down now, Mr Ngawaka.