Werehi v Police - [2013] NZHC 2029

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-443-023 [2013] NZHC 2029

BETWEEN KERENAPUTEHAU WEREHI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 12 August 2013

Counsel: R Rai for Appellant
SA Law for Respondent

Judgment: 12 August 2013

JUDGMENT OF BREWER J

Solicitors: Till Henderson (Stratford) for Appellant
C&M Legal (New Plymouth) for Respondent

WEREHI v POLICE [2013] NZHC 2029 [12 August 2013]

Introduction

[1] The appellant appeals her sentence of 18 months’ imprisonment handed down against her by Judge AC Roberts in the District Court at Hawera on 28 May 2013. The sentence was imposed as a response to the appellant’s plea of guilty on a charge of cultivating cannabis. Mr Rai for the appellant advances the appeal on two grounds. The first is that the learned District Court Judge erred in setting a start point of two years’ imprisonment. The second is that the learned District Court Judge erred in failing to exercise his discretion to commute the sentence to one of home detention.

The facts

[2] The summary of facts records that on 4 March 2013 the Police executed a search warrant on the appellant’s home address in Patea. In the main dwelling on the property were found two rooms outfitted for the growing of cannabis. The rooms were constructed within the dwelling and were lined with plastic. Each had indoor growing lamps and a fan ventilation system. Electricity had been diverted to power the growing systems.

[3] There were approximately 70 cannabis plants growing in these rooms. The plants were of varying heights and levels of maturity. Located in the kitchen area of the dwelling were a further 31 cannabis seedlings.

[4] The appellant told the Police initially that the cannabis was hers. Later she explained that it was being grown by a friend with her permission. She was unwilling to name the friend. However, the sentencing proceeded on the basis that the appellant was not the principal offender. Instead, she was a party to what was clearly a commercial cannabis growing operation. She accepted that she would obtain financial reward for her part in the venture.

[5] The value of the cannabis found by the Police, had it come to maturation, would have been perhaps $100,000.

The pre-sentence report

[6] The pre-sentence report recorded that the appellant is a single person aged

36 years with no dependents. She has a record of criminal offending but has no convictions relating to drugs. Her offending is largely related to driving, including two drink driving convictions. She has never before been imprisoned.

[7] The report advises that the appellant was only a social user of cannabis and has abstained since her offending was discovered. It was said that she:

... demonstrated remorse as she considered the possible consequences of her offending. She described being in financial difficulties and the opportunity presented itself to allow her home to be used to produce cannabis in exchange for financial assistance.

[8] The report goes on to say, and Mr Rai…

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.

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Details

Case: [2013] NZHC 2029
Decision Date: 12 August 2013

CaseChat Overview and Summary

The appellant, Kerenaputehau Werehi, appeals her sentence of 18 months’ imprisonment for cultivating cannabis, imposed by Judge AC Roberts in the District Court at Hawera on 28 May 2013. The appellant’s plea of guilty led to the District Court Judge setting a starting point of two years’ imprisonment, which the appellant contests on appeal, as well as the failure to commute the sentence to home detention. The appeal hinges on two primary issues: first, whether the District Court Judge erred in setting a two-year imprisonment starting point, and second, whether the Judge erred in not exercising his discretion to impose a sentence of home detention instead.

The court found that the District Court Judge was correct in setting the starting point at two years, given the commercial nature of the cannabis cultivation operation. Although the appellant was not the principal offender, she was motivated by the prospect of commercial reward, placing her culpability at the lower end of the category 2 range, which is appropriate for commercial cannabis growing operations. The court rejected the argument that the starting point should be reduced due to the appellant's secondary role. Regarding the second issue, the court held that the District Court Judge did not err in declining to commute the sentence to home detention. The Judge’s concerns about the appellant’s inability to abstain from cannabis, her association with known drug abusers, and her potential lack of frankness in disclosures were valid considerations. The court found that the appellant’s established patterns and commercial motivation made her unsuitable for home detention, which would not effectively address the underlying issues or facilitate her reintegration into the community. Therefore, the appeal was dismissed.

Orders