R v Payne
[2015] NZHC 2751
•5 November 2015
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 DefendantJudgment:
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 profit. It involved
five grows over the course of two growing seasons, at three different sites. Having
1 R v Payne [2015] NZHC 2629.
2 R v Terewi [1989] 3 NZLR 62 (CA).
regard to the remoteness of the location of the cultivations, the offending was highly planned, involving a high level of premeditation and effort. The plots were relatively sophisticated in terms of their design and construction involving the erection of electrical fencing and netting dug into the ground to prevent small animals from entering. The approach to your criminal activity showed you were forensically aware, and you exhibited a high level of determination to achieve your objective of obtaining substantial returns.
[8] On your behalf, Mrs Guy Kidd has submitted that the offending appropriately falls into Category 2 of Queen v Terewi. She makes that submission firstly by reference to the approach taken to other offenders apprehended as a result of the Police operation, and that your financial yield did not reach the threshold of
$100,000 (in 1999 values) as suggested by the Court of Appeal in that case for such offending. By comparison with the offending of Mr McCarthy, Mrs Guy Kidd has submitted your involvement was limited. She has submitted there is no evidence that you received significant financial reward from the offending. Your counsel has urged upon me the need to give recognition to the sentencing principle of imposing the least restrictive outcome if possible.
[9] No single factor is dispositive of where your offending should be placed. Sentencing is an evaluative exercise. As I observed in my decision in relation to the disputed facts hearing, it is clear you were fully committed to the substantial cultivation and harvest of significant amounts of cannabis for commercial gain.
[10] You sought to replicate the type of income that Mr McCarthy was achieving, and enlisted his assistance in that endeavour. This motivation manifested itself in the cultivation of cannabis at different plots over the course of two growing seasons. The size of the operation anticipated tens of thousands of dollars in returns and saw you expand your efforts to a third plantation in the 2011/2012 season.
[11] Your offending represents a persistent commercial enterprise. While your actual yields may not have been as high as you may have intended, you were at no point discouraged in your endeavours. Estimated yields, on what may be considered
a conservative approach, as I have already noted, were approximated as being as much as $99,000.
[12] One of the plots at Rarakau was a failure. In my view, that does not detract from the scale and commerciality of the operation. You demonstrated a high level of commitment to your ongoing enterprise, by cultivating in these remote locations, making extensive efforts to bring equipment to those plots, and concealing your identity and seeking to avoid detection.
[13] In setting a starting point, I have had regard to a number of other sentencing authorities relating to the cultivation of cannabis which may be considered broadly comparable to your offending. Although inevitably, the individual circumstances of each case invariably varies.3
[14] In my view, your offending falls between the upper end of Category 2 and the lower end of Category 3. I consider an appropriate starting point to be one of three years and six months’ imprisonment.
[15] In setting that starting point, I have had regard to the sentences imposed on Mr McCarthy and on your son, Mr Anderson, in addition to that imposed in respect of Mr Grant this morning.4 I consider the starting point to be consistent with the approach taken in respect of those offenders. In particular, I note Mr McCarthy was sentenced in respect of ten different cannabis plots and associated offending, and a starting point of six years’ imprisonment taken.
[16] In relation to Mr Anderson, it is notable that in fixing the sentence for him, his lesser role in the cultivation operation and the influence of you as his father, were
3 Campbell v R [2015] NZCA 105; O’Driscoll v New Zealand Police [2015] NZHC 346; Dyer v New Zealand Police [2014] NZHC 2961; R v Constable [2013] NZHC 1658; R v Hawes HC Tauranga CRI-2009-089-1530, 20 November 2009; R v Cross HC Hamilton CRI-2005-079-705,
6 October 2005; R v Delamore HC Auckland CRI-2010-004-1934, 5 October 2010. R v Hawes
HC Tauranga CRI-2009-069-1530, 20 November 2009; R v Cross HC Hamilton CRI-2005-079-
705, 6 October 2005; R v Kunac HC Rotorua CRI-2010-069-601, 5 July 2011 (cannabis worth approximately $100,000.00 – four year starting point); R v Merton HC Auckland, CRI-2009-
044-002520, 7 May 20110 (cannabis worth $100,000.00 – four year starting point); R v Yates HC Whangarei CRI-2009-029-001305, 22 April 2010 (cannabis worth $100,000.00 – four year starting point);
4 R v McCarthy [2013] NZHC 3078; R v Anderson [2013] NZHC 2750; R v Grant [2015] NZHC
2269.
taken into account.5 A starting point of two years, three months was taken in respect of the cultivation charges by Lang J when providing a sentence indication. Mr Anderson’s involvement in the cultivations in respect of Rarakau and Mt Misery in 2012 was limited to assisting in the harvest, in respect of which he was described as a “foot soldier”.
[17] Mr Anderson’s involvement in the sale of cannabis was also taken into account, with a nine month uplift to the starting point. Given your association and joint offending in respect of the possession for sale charge, much of the cannabis would have been sourced from your cultivation activity in respect of which you were clearly the leader.
[18] In relation to Mr Grant, he faced a single charge of cultivation of cannabis in respect of a plot involving forty seven cannabis plants, yielding around 10 pounds of cannabis, worth some $32,000. A starting point of two years was taken, which was noted as being at the lowest end of the available range in the sentence indication provided. I consider an uplift of some 18 months to recognise your cultivation, of four more cannabis groves in respect of three plots over two seasons as being well within range. In that regard, I note the observation in Terewi that the period over which the offending occurred should also be taken into account in setting the
sentence.6
[19] There are no mitigating features relating to the offending itself and none are contended for.
[20] Turning to your personal circumstances, you have previous convictions for fraud, and other less serious offending committed when you were in your early twenties. You are now aged 45 years of age. I put that previous offending to one side because of its vintage and lack of relevance to the matters for which you are for sentence today.
[21] You have sought to place some emphasis on your personal background, including what you describe as a difficult upbringing and that you have suffered from depressive illness since you were a teenager. Perhaps sadly, there is nothing in your family or personal background which is remarkable in terms of offenders who present for sentence before criminal courts. You obtained qualifications and became a chartered accountant, which is no doubt to your credit.
[22] In other personal material made available to me, you have indicated the pride that you have in your adult children and the success they have achieved, emphasising the support you have provided to them. While largely irrelevant, I find it difficult to square those representations with the way in which you were content to have your son, Mr Anderson, involved with you and working with you in furtherance of your commercial criminal operation.
[23] Insofar as your mental health is concerned, this was not related in any way to your offending, nor has it been suggested that it was. I acknowledge the submission made on your behalf that the courts have recognised that an individual’s physical and mental health which may cause an offender particular difficulty in serving a prison sentence can be taken into account. However, there is nothing to suggest that your depressive symptoms cannot be managed within the prison environment.
[24] Personal circumstances in relation to commercial cultivation do not carry significant weight.7 The emphasis is on deterrence, both personal and general. When regard is had to the lengths to which the Police were required to commit resources and time to detect and investigate this ongoing cultivation activity of which you were a part, conducted as it was in isolated wilderness areas, the reason for that need for deterrence is readily apparent. Deterrence is a paramount consideration in sentencing
in respect of sustained commercial cultivation enterprises of the type in which you were engaged.8
[25] Your counsel has also submitted that some credit should be extended for your guilty pleas. While the Crown has acknowledged that some small credit may be
offered to you, as a matter of principle that is in my view somewhat unrealistic. You entered your guilty pleas on the morning of your scheduled trial with notice only having been provided less than 24 hours prior.
[26] Mrs Guy Kidd has sought to place some emphasis on the on-going nature of plea negotiations with the Crown. However, having regard to the years that this proceeding has been on foot, the pleas were simply entered far too late to attract any substantive credit. Three weeks trial time was lost to the Court, the Crown’s case comprised professional Police witnesses, in contrast to civilian witnesses or complainants, in respect of whom the avoidance of a trial removes stress from such persons, is not apparent in your case. The evidence against you was very strong. Only after exhausting all avenues of challenge to the Crown case were the pleas entered. This is without taking into account the disputed facts hearing in respect of which I substantially found against you.
[27] Your counsel has also referred to criminal proceeds recovery action being taken by the Commissioner of Police in respect of a property jointly owned by you and your father. It is apparent that your father is seeking relief from forfeiture and that the Commissioner’s application for forfeiture is presently in something of a state of flux. You have instructed your counsel that you have agreed to forfeiture of your share in the equity in the property. However, it is not clear what that may amount to, having regard to your father’s application for relief which may potentially account for almost all the equity in the property.
[28] Having reviewed the various matters that have been put before me in mitigation, including your otherwise constructive past, prior to your involvement in cannabis cultivation in 2010, I am prepared to extend a three month deduction from the starting point of three years, six months’ imprisonment. I appreciate that I have not strictly followed the Taueki approach to the final stage of the sentence calculation exercise.9 Had I done so, however, I would not have applied any discount for your
guilty pleas.
9 R v Taueki [2005] 3 NZLR 372 (CA).
[29] Similarly, the other mitigating factors by themselves would not ordinarily in this context attract a discrete credit. On a cumulative basis, however, including the very belated entry of pleas, I am prepared to provide this three month credit for all matters raised in mitigation.
[30] Mr Payne can you now please stand.
[31] Mr Payne in relation to each of the cultivation charges you are sentenced to imprisonment for three years and three months.
[32] On the charge of possession of cannabis for sale you are sentenced to
18 months’ imprisonment.
[33] Each sentence is to be served concurrently. [34] You may stand down.
Solicitors:
Preston Russell Law, Invercargill
AWS Legal, Invercargill
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