R v Rakatau - [2007] NZCA 21

IN THE COURT OF APPEAL OF NEW ZEALAND
CA404/06
[2007] NZCA 21
THE QUEEN
v
GARY GERARD RAKATAU
Hearing:19 February 2007

Court:O'Regan, Chisholm and R Hansen JJ
Counsel:P S Coles for Appellant

S B Edwards for Crown

Judgment:23 February 2007 at 12 noon

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by Chisholm J)
[1]       Having pleaded guilty to the possession of cannabis for supply, cultivating cannabis, possession of cannabis oil and possession of utensils, the appellant was sentenced by Mallon J to a total of 23 months imprisonment. Leave to apply for home detention was refused. The appellant appeals against the length of his sentence of imprisonment on the ground that it is manifestly excessive.
Facts
[2]       When the police executed a search warrant at the appellant’s home they found 2.6 kg of cannabis plant being dried in the lounge, three plastic bags of cannabis head weighing approximately 2.1 kg in the kitchen, and smaller amounts of cannabis totalling around 64 grams elsewhere in the house. In total the cannabis found in the house weighed approximately 4.8 kg. It had a street value of between $27,000 and $51,000. A set of scales and 72 plastic snaplock bags were also located in the house. These facts gave rise to the possession for supply charge.
[3]       Five mature roots remaining after harvest were located in the back garden. It is not disputed that these plants were the source of the cannabis located in the house. The cultivating charge arose from these facts.
[4]       Finally, various utensils, some of which contained residues of cannabis oil, were located in the kitchen. These support the remaining two charges.
[5]       When spoken to by the police the appellant admitted growing, harvesting, consuming cannabis plant and supplying it to family members. He also admitted the possession of cannabis oil and utensils.
The appellant
[6]       The appellant is 45 years of age. At the time of the offending he was living in the family home with his wife and five of his six children. Although he has a reasonably lengthy list of previous convictions, predominantly for traffic and dishonesty, there have been no convictions since 1998. Included in his previous convictions are five convictions for possession of cannabis between 1983 and 1988.
[7]       According to the probation officer’s report the appellant told the probation officer that he had grown the cannabis plants for personal use, did not supply it to others, and the snaplock bags were not for cannabis packaging. It was the probation officer’s view that the appellant had limited insight into his offending and that there was a medium risk of re-offending.
Sentencing in the High Court
[8]       For the purpose of sentencing Mallon J adopted the charge of possession for supply as the lead charge. She considered that the offending came within the second band of R v Terewi [1999] 3 NZLR 62 (starting point of two to four years) and that the appropriate starting point was two years…

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 Rakatau

Details

AGLC: R v Rakatau [2007] NZCA 21
Case: [2007] NZCA 21
Decision Date: 23 February 2007

CaseChat Overview and Summary

The case of R v Rakatau involves an appeal against the length of a sentence of imprisonment imposed on the appellant, Gary Gerard Rakatau, who pleaded guilty to possession of cannabis for supply, cultivating cannabis, possession of cannabis oil, and possession of utensils. The appeal was heard by O'Regan, Chisholm, and R Hansen JJ. The appellant argued that the sentence of 23 months imprisonment was manifestly excessive. The police found 4.8 kg of cannabis, with a street value between $27,000 and $51,000, at the appellant's home. The appellant admitted to growing, harvesting, consuming cannabis, and supplying it to family members. The appellant's previous convictions included five for possession of cannabis. The High Court Judge, Mallon J, considered the possession for supply charge as the lead charge and set the starting point at two years and 10 months imprisonment. The Court of Appeal found that the Judge's starting point of two years and 10 months was within the available range, and the appeal was dismissed.
The key legal issues in this case were whether the Judge correctly assessed the degree of commerciality in the offending, and whether the starting point of two years and 10 months was within the available range. The Court of Appeal considered the amount of cannabis found, the appellant's admission to supplying it to family members, and the presence of scales and snaplock bags consistent with sales to others. The Court found that the Judge's inference of a significant commercial element in the offending was open to her and that the starting point was within the available range. The Court emphasised the importance of considering the available range and not drawing comparisons with other cases.
The Court of Appeal dismissed the appeal against the sentence of imprisonment imposed on the appellant. The court found that the Judge's starting point of two years and 10 months was within the available range and that the appellant's significant commercial involvement in the offending justified the sentence. The court also noted that it was not appropriate to draw comparisons with other cases and that each case should be considered on its own facts.

Orders