R v Payne - [2015] NZHC 2751

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-025-2416 [2015] NZHC 2751

THE QUEEN

v

DAVID CHRISTOPHER JAMES PAYNE

Hearing: 5 November 2015

Appearances:

E Higbee and SN McKenzie for Crown
F Guy Kidd for Defendant

Judgment:

5 November 2015

SENTENCING REMARKS OF MANDER J

[1] David Payne you are for sentence on five charges of cultivating cannabis and one charge of possession of cannabis for the purpose of sale, having pleaded guilty to these charges on the morning of your trial. They arise out of a Police investigation targeting outdoor cannabis cultivation in Western Southland, of which your offending represents a part.

[2] Over the course of two consecutive growing seasons, between October 2010 and April 2012, you cultivated cannabis at two geographical locations described as “Rarakau” and “Mt Misery”. These were relatively sophisticated outdoor cannabis plots of similar design and construction. You cultivated these plots with the assistance of Mr Brian McCarthy, who has been sentenced both in respect of the cultivations at these sites and at other plots in respect of which you were not
involved.

R v PAYNE [2015] NZHC 2751 [5 November 2015]

[3] You were also responsible for the cultivation of cannabis over the course of the 2011/2012 growing season in an isolated area described in the evidence as “Hump Burn”. This plot was cultivated by you, together with your adult son, Mr Brodie Anderson who has also been dealt with in relation to his involvement in this cannabis growing operation. The possession for supply charge relates to some three pounds of cannabis located at Mr Anderson’s house in Pukerau which was harvested from the Hump Burn plot.

[4] As a result of a disputed facts hearing, I made determinations regarding the yield and revenue from these various plantations.1 The success of each cultivation varied. In total, some 94 plants were harvested with a yield estimated between 26 to
34 pounds from the five plots with an approximate revenue over the two years from that yield, of between $76,000 to $99,000.

Starting point

[5] It is uncontroversial that in fixing a starting point, regard is to be had to the guideline provided by the Court of Appeal in Queen v Terewi.2

[6] There is a contest between you and the Crown as to whether your offending falls into Category 2 or Category 3 of the identified groupings of commercial cannabis cultivation described in that judgment. Category 2 encompasses small scale cultivation of cannabis for a commercial purpose, attracting starting points generally between two and four years. Category 3, being the most serious class of such offending, involves large scale commercial growing, usually with a considerable degree of sophistication and organisation which would generally attract a starting point in excess of four years.

[7] The Crown has submitted that your offending falls into Category 3. It points to the fact that, as you have admitted, the growing of the cannabis was purely to obtain a commercial return. You participated in this activity for…

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 Payne

Details

AGLC: R v Payne [2015] NZHC 2751
Case: [2015] NZHC 2751
Decision Date: 5 November 2015

CaseChat Overview and Summary

In this case, the defendant, David Christopher James Payne, was sentenced on charges related to the cultivation and possession of cannabis for the purpose of sale. The court heard that Payne cultivated cannabis at three different locations over two growing seasons and was involved in the possession of cannabis for supply, which was harvested from one of the plots. The case involved a sentencing hearing, where the starting point for sentencing was determined by evaluating whether Payne's offending fell into Category 2 or Category 3 of the groupings of commercial cannabis cultivation described in previous cases. The Crown argued that the offending fell into Category 3, while Payne's counsel contended it was Category 2.

The court found that Payne's offending fell between the upper end of Category 2 and the lower end of Category 3, and set the starting point at three years and six months' imprisonment. The court considered the nature of the offending, the level of planning, and the remoteness of the cultivation locations. It also compared the sentences imposed on other offenders involved in similar cannabis cultivation activities. The court took into account Payne's guilty pleas, albeit late in the proceedings, and his personal circumstances, but ultimately found that deterrence was the paramount consideration in this case.

The final orders of the court were that Payne was sentenced to imprisonment for three years and three months on each of the cultivation charges, and 18 months' imprisonment for the charge of possession of cannabis for sale. All sentences were to be served concurrently.

Orders