R v Tutahi HC Whangarei CRI 2010-027-002652

[2011] NZHC 932

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2010-027-002652

THE QUEEN

v

DAVID WAYNE TUTAHI

Hearing:         4 August 2011

Counsel:         D J Blaikie for the Prisoner

M B Smith for the Crown

Judgment:      4 August 2011

SENTENCING NOTES OF WYLIE J

Distribution:

D J Blaikie: [email protected]

A L Hyndman

R V D W TUTAHI HC WHA CRI 2010-027-002652 4 August 2011

[1]       Mr Tutahi, you appear for sentence today having entered pleas of guilty to the following charges:

(a)       Manufacturing cannabis oil.  That is an offence pursuant to s 6(1)(b)

of the Misuse of Drugs Act 1975.  It carries a maximum sentence of

14 years’ imprisonment.

(b)Cultivation of cannabis.  That is an offence pursuant to s 9(1) of the Misuse of Drugs Act.  It carries a maximum sentence of seven years’ imprisonment.

(c)      Finally,  the matter  I discussed with  Mr  Blaike  and  Ms  Hyndman earlier on, the possession of cannabis oil.  This is an offence pursuant to s 7(1)(a) of the Misuse of Drugs Act, and it carries a maximum penalty of three months’ imprisonment, or a $500 fine.

[2]      As  the  maximum  penalties  for  the  first  two  offences  indicate,  these  are serious offences.  The reason you are being sentenced in this Court is because the District Court has declined jurisdiction.

Relevant Facts

[3]      On the morning of 22 December 2010, the police executed a search warrant at your address at Ngawha.  You live in that property with your partner, and with your young children.  The search was part of a wider operation targeting drug-related offending in Northland. The operation was known as “Operation Linda”.

[4]      When  police  officers  searched  your  garage,  they  uncovered  a  concealed indoor room which contained an indoor cannabis growing operation.  They found 40 cannabis plants.  The cannabis plants were maturing female plants, varying in height between 700 millimetres to 900 millimetres.   Inside the room were growing lights with attached light shades, and power timing devices set on a 12 on 12 off growing cycle.  Reflective foil had been placed around the walls of the room.  There were also electric fans for ventilation and a digital thermometer.

[5]      The search also revealed a bucket containing cannabis plants which had been soaked in a solvent and a half cut container with a filter wrapped around its top. This could be used to manufacture cannabis oil.   Nearby the police found a pair of electronic scales, plastic bags, as well as cannabis oil stored inside empty pill packets in a fridge.   Near the fridge two other empty pill pods were found which also contained cannabis oil.  The police found gang paraphernalia in the garage and in the residence, linking you to the Black Power Gang.  Finally, the search revealed a small lone cannabis plant growing in a pot in a caravan.

[6]      It is accepted on your behalf that the potential yield was approximately 1400 grams  of  cannabis,  which  is  equivalent  to  approximately  3.125  pounds.    It  is estimated that the crop was worth somewhere between approximately $10,500 and

$15,500.

Pre-Sentence Report

[7]      I have received a helpful pre-sentence report.  You are a 30 year-old male of Ngai Te Rangi descent.  You have a stable family relationship with your partner, and your three children, who are aged six, 11, and two.   You and your family live in rental accommodation in Ngawha near Kaikohe.

[8]      You are the youngest of nine siblings.   You grew up with your sister in Wellington.  A previous report suggests that your upbringing was difficult, and that on occasion your father was violent.  Both you and your sister left home to live on the streets at a young age.

[9]      You have a good work history.  You have worked as a painter, a concreter, and in forestry jobs.  In addition, you worked as a mechanic for six years.  You work seasonally  at  AFCO.     As  at  the  date  of  the  pre-sentence  report,  you  were self-employed, doing various jobs on a casual basis as required.  References I have received today suggest that you are currently working as a mechanic.

[10]     The pre-sentence report makes no mention of any gang affiliation.  However, the Crown submits that you are a patched member of Black Power, and as I have

noted, the police found Black Power paraphernalia at your home when they searched it.

[11]     Your health is good, and you have no outstanding fines.

[12]     The  probation  officer  records  that  you  have  no  issues  with  the  police summary of facts, and that you extend your apologies to the Court for your actions.

[13]     You have a number of previous convictions, and you started offending when you were 17 years old.  Most of your previous convictions relate to drink driving, or driving while disqualified.  However, in 2001 you were convicted of manslaughter, and you served a term of imprisonment of two years and six months.  You have no previous drug-related convictions.

[14]   The probation officer assessed you as being at low to medium risk of reoffending.   I note that you have undertaken drug and alcohol counselling voluntarily, and, at the time of the pre-sentence report, you had just completed six sessions of ongoing counselling with your partner.

[15]     The probation officer recommended a sentence of imprisonment, with release conditions requiring attendance at any counselling, treatment, training or programme as directed by the probation officer.  The report also canvassed other possibilities, including  home  detention  or  community  detention,  and  annexed  an  appendix detailing how both types of sentences could work.

[16]     I have also received three character references on your behalf.  One is from a Ms Fiona Bannister.  She is the Chairperson of the Ngawha Springs Recreation and Ratepayers Association.  She speaks of your involvement in the community, and she notes that you are a valued member of her association, and that you assist in the small village in which you live.  There is a reference from a Mr Colin Campbell, who employed you at the Ngawha Geothermal Power Station on a number of occasions.  He recorded that you are a good and willing worker, and that you are a good family man.  In a separate letter, Mr Campbell speaks of his own ill health, and of his reliance on you to assist him.  There are also two letters from a Ms Heather

Silich, who is an independent counsellor.  She speaks of various courses you have undergone with her, and she recommends that you should continue drug and alcohol counselling with guidance from the Community Probation Services.  There is a letter from a Mr Wilson who has employed you as a motor mechanic.  He speaks of your work skills and suggests that you a helpful and kind person who assists in the community.  There is a similar letter from a Mr Courtsey who has also employed you as a part-time mechanic.

Submissions

[17]     Ms Hyndman for the Crown submits that the cultivation of cannabis should be seen as the lead charge.  She acknowledges that the Crown cannot suggest that there was any commercial aspect to the charge of manufacturing cannabis oil.  She submits that based on the details of the operation discovered by the police during the course of their search, that the appropriate starting point should be between two and a half and three years’ imprisonment.   She requested an uplift to recognise your previous criminal record.  She accepted that your guilty plea was entered at an early stage and that it is appropriate to allow you a discount for that plea.

[18]     Mr Blaikie on your behalf submitted that you should only be sentenced on the basis of your proved offending.   He argued that the maximum commercial return which could have been received from the amount of cannabis found was limited, and that in any event, the evidence suggests that the crop was at least in part for your personal use.  He submitted that your offending justifies a starting point of around two years’ imprisonment, or slightly below that.  He suggested that the lead offence is cannabis cultivation, and acknowledged that the manufacture of cannabis oil might attract a small uplift.   He suggested two months.   He rejected any suggestion that your offending was linked to your affiliation with the Black Power Gang, and submitted that that was not an aggravating feature.  Further, he submitted that you should receive a discount for good character, and for your attempts to rehabilitate yourself, as well as a 25 per cent discount for your guilty plea.  He submitted that you  should  receive  a  sentence  of  less  than  two  years’ imprisonment,  and  that therefore home detention could be considered as an option.

Principles of Sentencing

[19]     In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act.  In particular, I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgement of your offending, and the need to denounce the conduct in which you were involved.  I am also mindful of the need to deter others from committing the same or similar offences.  This is a primary factor in drug-related offending.  I have taken into account the gravity of the offending with which you were involved, including your degree of culpability.  I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels with similar offenders committing similar offences.  I am also mindful that I must impose the least restrictive outcome that is appropriate in the circumstances and I need to consider your rehabilitation in the circumstances which have arisen.

Analysis

[20]     In applying these various principles and purposes, I am required to follow what is essentially a two-stage approach.   In the first stage, I have to fix what is called a starting point.  This reflects the culpability or blameworthiness associated with your offending.  The second stage, once I have fixed the starting point, requires me to consider whether or not your personal circumstances warrant any adjustment to the starting point, either upwards or downwards.

[21]     Sentencing involving cannabis is governed by the decision of the Court of Appeal in a case called R v Terewi.[1]    It sets out three broad categories of cannabis- related offending.  Category 2 is relevant in your case.  It calls for a starting point of between  two  and  four  years’ imprisonment,  where  the  offence  in  issue  is  the

small-scale cultivation of cannabis for a commercial purpose or profit.

[1] R v Terewi [1999] 3 NZLR 62 (CA).

[22]     I am satisfied that the scale of the cultivation operation discovered by the police means that the lead offence should be the cultivation charge under ss 9(1) and (2) of the Misuse of Drugs Act.

[23]     Here, both Ms Hyndman for the Crown and Mr Blaikie on your behalf accept that you are in Category 2. They differ on where you fall within that category.

[24]     There are a number of aggravating features to your offending.

[25]     First, your offending involved premeditation. You were required to set up the equipment to undertake the cultivation.  Clearly, some knowhow was required and your offending, in my view, bears all the hallmarks of determination, application, and deliberation.

[26]     Secondly, your and your partner’s young children lived at the house where

the growing operation was situated. That is clearly an aggravating feature.

[27]     I have also had regard to a number of other cases involving similar offending, including those referred to me both by the Crown, and by Mr Blaikie on your behalf.

[28]     In my view, having had regard to all the circumstances of your offending, as well as comparative cases, the appropriate starting point for your offending is two years and eight months’ imprisonment.

[29]     I also need to consider the other offending to which you have pleaded guilty. In my view, that other offending justifies an uplift to the starting point I would otherwise have adopted of an additional four months’ imprisonment.  It follows that I take as my initial starting point, a term of imprisonment of three years.

[30]     I now turn to consider any aggravating or mitigating factors personal to you.

[31]     I  do  not  accept  that  your  previous  convictions  justify  an  uplift  to  your sentence.   While you have a number of prior convictions, including one for very serious offending indeed, none of them are drug related.  Nor in my view, does the fact that gang-related paraphernalia was found in your house justify an uplift to the

sentence.  There is nothing to link the present offending with the Black Power Gang or with any other gang.

[32]     There  are  some  mitigating  factors.    First,  I  note  the  various  character references which I have referred to already.  I accept that you are a good worker and at least in some respects, a good family man.  Further, I accept that you have made various endeavours to reform yourself.   You seem to have recognised that your previous offending has largely stemmed from problems with alcohol, and you have gone some way toward trying to address that issue.  I allow you a discount of two months to recognise these matters.

[33]     Further, you are entitled to a discount for your relatively early guilty pleas. The guilty pleas were entered in February 2011.   They were not entered at the earliest possible opportunity, but having heard from Mr Blaikie, I am satisfied that they were entered at a relatively early stage, and that at no stage did you suggest that you would be endeavouring to deny your responsibility.  I am prepared to allow you a discount of eight months, or just under 25 per cent, to recognise those pleas.[2]

[2] Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607.

[34]     Further, I accept that you have shown remorse, and I allow you a further discount of one month to recognise that factor.

[35]     It follows that the end sentence I am going to impose is one of two years and one month’ imprisonment.

[36]     Mr Tutahi, will you please stand.

[37]     Mr Tutahi, in respect of the offence of cultivating cannabis, I sentence you to a term of imprisonment of two years and one month.  In respect of the offence of manufacturing cannabis oil, I sentence you to a term of imprisonment of 12 months, to be served concurrently.  In respect of the offence of possession of cannabis oil, I sentence  you  to  a  term  of  two  months’  imprisonment,  again  to  be  served

concurrently.

[38]     Given the term of imprisonment I have imposed, it is not open to me to impose conditions on your release.   I do however endorse the probation officer’s suggestion  that  while  in  custody  and  on  your  release,  you  should  undergo counselling and/or treatment designed to reduce the risks of your reoffending.  You have made good progress in this regard to date and I hope that will continue.  You should also continue to attend drug and alcohol counselling, with a view to avoiding any reappearance before this or any other Court.

[39]     By consent, I make an order for destruction of the drugs and drug-related paraphernalia found in the course of the police search.

[40]     You may stand down.

Wylie J