THE QUEEN v WAYNE HEMI PURE [2001] NZCA 26 (20 February 2001)

IN THE court of appeal of new zealand

ca359/00

THE QUEEN

V

WAYNE HEMI PURE

Hearing:	20 February 2001
Coram:	Gault J Robertson J Potter J
Appearances:	P T Birks and J Sanders for Appellant J C Pike for Crown
Judgment:	20 February 2001

judgment of the court delivered by gault j

[1] The appellant was convicted after pleading guilty in the District Court at Kaikohe to five cannabis related offences.
[2] The circumstances giving rise to the charges were that on 22 October 1999 the police executed a search warrant at the home address of the appellant and his wife at a relatively isolated rural setting at Ahipara.The police located in the house 12 foil wrapped "tinnies" containing cannabis head material, $300 in cash consisting of $20 notes and two $50 notes, a small square of tinfoil, a plastic bag containing a trace of cannabis, a role of tinfoil wrap and a smoking pipe.
[3] A track leading from the rear of the house up a hill appeared worn with tyre tracks.It was followed and the police located a large green plastic barrel with a lid some 20 metres off the track among thick bushes.That was found to contain 25 snap-lock bags, a set of electronic scales, a quantity of cannabis material distributed between several plastic bags and in total weighing 1,010.5 grams.In addition there were two yellow plastic shopping bags containing 281.5 grams of seedless female cannabis head material.Another bag in the barrel contained 18 loose cannabis seeds, further cannabis seeds with a total weight of 54 grams were found in a jar and another plastic bag.
[4] With the assistance of a police dog another track was followed to a clearing within a gorse patch approximately 100 metres to the rear of the house.Located there were six fish bins containing a variety of cannabis plants ranging in height between 50 and 80 centimetres.They were in individual black plastic pots.There were 382 healthy plants growing in that area.Another site located among trees disclosed further items associated with cultivation including 34 large potting bags, some of which contained a combination of manure and hay and some shredded bark.In addition 15 large plastic potting bags were discovered at another concealed site together with six 40 kilogram bags of fertiliser.
[5] As a result of the discoveries the appellant was charged with five offences;cultivating cannabis, selling cannabis, possession of cannabis for supply, possession of instruments (a smoking pipe) and possession of cannabis seeds.
[6] After pleading guilty to the charges the appellant was sentenced on 5 September 2000.The sentencing Judge referred to the personal circumstances of the appellant noting he had some previous convictions but none was drug related.He noted also that the appellant was 45 years of age and was a habitual user of cannabis but had shown some positive response to counselling and therapy which he had undertaken.The Judge recognised the commercial nature of the operation although the appellant complained he was "not hard out selling but used it to pay for some bills (power, telephone and clothing) for the children and ourselves".The appellant was unemployed and had been drawing a benefit for some time.The Judge also recorded having heard submissions in support of the appellant under s16 of the Criminal Justice Act which complemented written references provided to the Court directed to positive contributions by the appellant to his community.
[7] The Judge referred to the decision of this Court in R v Terewi [1999] 3 NZLR 62.By reference to the categorisation of offending in that decision he was inclined to place the scale of offending in this case at the high end of category two or the lower end of category three.
[8] Having noted the mitigating factors of no prior drug convictions (really the absence of an aggravating factor) the early "guilty" plea and the positive outcome of such counselling and therapy as had been undertaken (although the pre-sentence report indicated a less than promising motivation for change), the Judge then looked at aggravating factors.He referred to the scale and relative sophistication of the operation and the indication he had been given from the police that the potential market value for the plants after maturing would be measured in hundreds of thousands of dollars.He concluded in the following terms:
I deal first with you, Mr Pure.I have talked about the aggravating and mitigating features, I have talked about the appropriate starting point, and I have also got to take into account that there are now five charges that you are to be sentenced on today.In certain circumstances there would be justification in cumulating some of the sentences, but I will not do that.I intend to approach the matter somewhat on a global basis, even though there are aggravating features even by the number of charges themselves.I give you credit where credit is due.
I deal with you then in this way, on the charge of cultivation you are today sentenced to imprisonment for four years.On the charge of sale of cannabis you are sentenced to imprisonment for two years.On the charge of possession of cannabis for supply, likewise you are sentenced to imprisonment for two years.On the charge of possession of the pipe you are sentenced to imprisonment for six months and the charge of possession of seeds you are sentenced to imprisonment for two months.I, today, therefore impose a sentence of four years imprisonment in total.I am not, going to add one to the other.
I make an order for forfeiture under s32 of the Misuse of Drugs Act of the sum of $300.00 being cash seized and the quad motor bike which clearly was part of the whole operation.
[9] In support of the appeal Mr Birks submitted that the sentence is manifestly excessive or wrong in principle.He referred to the decision in Terewi and submitted that the Judge was incorrect to fix a starting point by reference to the categories identified in that decision and then to purport to take into account aggravating factors relating to the scale and sophistication of the operation.It was his submission that those matters are the essential elements of the categorisation so that the Judge, in effect, took them into account twice.He further submitted that the sentencing Judge adopted too inflexible an approach to the application of the principles set out in Terewi and as a result over-stated the seriousness of the offending involved in this case. We were asked to compare this relatively basic outdoor growing operation with sophisticated indoor cultivation of the kind referred to in Terewi.We were also invited to consider the absence of aggravating features such as booby traps, weapons and the like.
[10] We do not accept that the scale and sophistication of cultivation is relevant only for determining the appropriate Terewi category.Those categories are defined in very general terms and encompass in each case varying culpability which will attract sentences across the ranges indicated.The scale and methods of cultivation are to be taken into consideration also in determining the appropriate sentence within the categories.
[11] We think this offending properly falls towards the lower end of category three of Terewi.It involved large scale commercial growing, though we accept there were not thousands of plants.There was obvious organisation and sophisticated cultivation, though again certainly not of the intensity of indoor or hydroponic growing.Nevertheless the indicated starting point for sentences in this category is four years and cases of more extensive growing and in more sophisticated forms plainly will attract sentences considerably higher than that.Therefore, we see no error in using the starting point of four years for this category and then considering whether there are aggravating factors which take the seriousness of the offending above that bottom level
[12] The scale and sophistication of the operation with which we are here concerned do not warrant elevating the cultivation very high in the class three category.But the number of plants and apparent efforts invested in preparation and plant care indicate both expectation and likelihood of a very substantial crop.Culpability is not significantly less because the police intervened before the appellant's intentions were fully realised.Further, it was obviously an ongoing operation.The Judge was entitled to regard it as calling for a starting point of up to five years.
[13] We are also satisfied that the Judge was right to take into account that this was not simply a cultivation but involved packing and selling cannabis clearly not the product of the cultivation of the plants found.In that respect the additional offences must be dealt with and, where, as here, the Judge sought to impose a sentence for the most serious offence to take account of the totality of offending, that was done by increasing the sentence on the cultivation charge above that which might have been appropriate if the offence had been mere cultivation and nothing more.
[14] We accept that by arriving at the sentence of four years after allowing for the guilty plea and other mitigating factors the Judge must have had in mind before that a higher sentence.But for the totality of offending we consider that was within the range of a properly exercised sentencing discretion.We are not persuaded we should interfere.
[15] The appeal is accordingly dismissed.
Solicitors
Crown Law Office, Wellington