R v Tana HC Tauranga CRI 2009-087-2787

[2010] NZHC 1452

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2009-087-002787

THE QUEEN

v

JACK PHILLIP TANA

Charges:Possession of cannabis for supply x1, Cultivation of cannabis x1;

Selling cannabis x1

Plea:               Guilty

Appearances: H Booth for Crown

M Simpkins on instructions from R Plunket for Prisoner

Sentenced:     29 July 2010

End sentence - two years one month’s imprisonment

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Tauranga

Copy to:            M Simpkins, Lance & Lawson, Rotorua

R V TANA HC TAU CRI-2009-087-002787  29 July 2010

[1]      Jack Phillip Tana, you have pleaded to one count of possession of cannabis for supply, one count of cultivation of cannabis, and one count of selling cannabis. The maximum penalty for the supply and selling cannabis charges is eight years’ imprisonment   and   the   maximum   penalty   for   cultivation   is   seven   years’ imprisonment.  The District Court has declined jurisdiction and you are in this Court for sentence.

[2]      On 29 December 2009 the police executed a search warrant at your home. Nine cannabis plants of 30 to 60 centimetres in height were located in the garden. Two indoor growing rooms were found in the garage.  The first contained around 30 cannabis seedlings, which were around 12 centimetres tall.   The room contained growing lights, air filters and shades.  The second room was similar in construction and contained drying cannabis heads, cannabis plants and cannabis stalks.  The dried cannabis head would have yielded about 575 grams of useable cannabis head.  The search also revealed other cannabis.  When spoken to you said you harvested around six ounces of cannabis every two weeks to four weeks, selling the rest for around

$1,500 to members of the Black Power.

[3]      A fair degree of focus on sentencing submissions has been on the value of the cannabis found at the property.  An amended summary of facts was filed after you pleaded  guilty  and  there  has  been  reference  to  further  seedlings  found  at  the property.

[4]      In my judgment it is unnecessary to resolve the differences between the summaries, and I deal with the matter on the basis most favourable to you, namely the summary of facts that was before the Court when you pleaded guilty.

[5]      Even on that summary the evidence before the Court is that the cannabis from the plants in the garden would be worth between $31,500 and $43,000 if sold in ounces and the cannabis from the original seedlings found would have been worth between $19,000 to $38,000.  In addition to the cabbage, which is only worth around

$100, the cannabis head would be worth in the region of $6,000.    This was a substantial and significant commercial growing operation.   But more than the evidence discloses that there were ongoing sales that you were making from this operation.  The evidence of that is to be found in your own admissions.  You accept there were six to seven harvests during a period of about nine months and each yielded about six ounces.  While you retained an ounce for yourself you sold the rest, so over a period of about nine months as much as $27,000 may have been realised. Again that may well be conservative.  But it reflects an ongoing operation by you.

[6]      You are 20 years old.   You were, at the time of the offending, living at Opotiki with your partner and your children and your partner’s brother.   You are close to your mother and I acknowledge the presence of your partner and mother and supporting family and friends in Court.  You do not have any gang affiliations but obviously you have some associates who have gang issues.

[7]      You are in good health.  You told the probation officer you decided to grow cannabis to support your family and because you were bored.  When you spoke to the probation officer you gave the impression you were only sorry because you found yourself in a serious situation and were facing jail.  You blamed the person who “narked” on you for the situation you were in.

[8]      The  probation  officer  also  noted  your  history  of  non  compliance  with previous sentences.  Indeed a major aggravating factor in this case that you have to accept Mr Tana is that this offending occurred while you were subject to a sentence of home detention.

[9]      Despite those rather negative comments in the pre-sentence report counsel has put before the Court this morning a number of letters of support and references. They show a different side to you Mr Tana.  They show that with the proper support and with a change in attitude from you, there is still hope for you and you could turn your life around.   They also show and confirm that you and  your partner have suffered a tragic loss with the loss of one of your young children very recently and it is said that that has had a sobering effect on you.

[10]     The Crown submits a start point of around three and a half years should be adopted in this case, placing your offending at the upper end of a case known as R v Terewi[1]a Court of Appeal decision, which fixes the band for sentencing in cases such as this.  On your behalf it is submitted that a start point of around two to two and a half years is more appropriate and counsel referred in written submissions to a number of cases.  I have considered those cases that counsel have referred to, namely R v Cook;[2] R v Marchant;[3]   R v Tehura Wihongi;[4]   R v Farquhar[5] and R v Edmonds[6]

and I also considered the case the Crown referred to of R v Ahu.[7]

[1] R v Terewi (1999) 16 CRNZ 429.

[2] R v Cook HC Tauranga CRI-2008-087-320, 10 July 2008.

[3] R v Marchant HC Tauranga CRI-2008-087-1222, 26 November 2008.

[4] R v Tehura Wihongi HC Dunedin, T-2009-012-4390, T-2009-012-4352, 17 December 2009.

[5] R v Farquhar [2009] NZCA 284.

[6] R v Edmonds [2009] NZCA 152.

[7] R v Ahu HC Rotorua CRI-2009-087-1997, 3 February 2010.

[11]     However,  as  I have  indicated  to  counsel  it  seems  to  me  the  appropriate approach is to consider the level of commerciality of your offending and to place that within the appropriate band from Terewi.  In sentencing you I am required to take account of the purposes and principles of the Sentencing Act which include:

•         making you accept responsibility for your offending;

•         to deter you and others from offending of this kind;

•         denouncing this sort of offending.

[12]     I am also directed to take account of the gravity of the offence, which is recognised by the maximum penalty I referred to earlier and your culpability.  I am also directed to consider other relevant authorities to ensure consistency as far as possible with sentencing of this nature.

[13]     I am also directed to consider your ultimate rehabilitation and reintegration into the community.

[14]     When I consider those purposes and principles and apply Terewi against the facts of this case Mr Tana I am left with the clear view that this was a sophisticated

growing operation you had established.   It was an ongoing operation set up for commercial purposes.  You had engaged over a long period of time in sales.

[15]   To reflect the totality of your offending a start point of three years’ imprisonment is required.   To that there must be an uplift to recognise that you committed this offending whilst you were subject to a sentence of home detention. That  is  completely  unacceptable  and  you  must  know  that  there  must  be  a consequence for that.  An uplift of six months is appropriate for that.

[16]     I then turn to mitigating factors.   In  your case as I have noted the pre- sentence report does not frankly suggest there are particularly mitigating factors but I accept in light of the other material that counsel has put before the Court there are positive features in your life and possibly a positive turnaround may be achievable.

[17]     I take into account your age.   You are still a young man.   I give you a reduction for all those positive features and your age of about three to four months.

[18]     I then give you a full discount for your guilty plea of one third.   The end sentence the Court is left with is a sentence of two years and one months’ imprisonment.

[19]     Please stand Mr Tana.  Mr Tana you are sentenced to imprisonment for two years one month.  I make it clear that even if the ultimate sentence I had arrived at was two years itself home detention simply would not be an option in your case. You offended whilst subject to a sentence of home detention.  Home detention would not address the necessary principles and purposes of deterrence and denunciation of offending of this kind in these circumstances.

[20]     In light of the sentence imposed the outstanding community work sentence is cancelled.

[21]     Mr Tana you must serve the sentence that has been imposed but as I have said you are a young man.  With the appropriate support and proper programmes you

can still turn your life around.  Whether you do is up to you.  Stand down.

Venning J