THE QUEEN v STEVEN TARAPATA [2003] NZCA 142 (7 July 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA32/03

THE QUEEN

v

STEVEN TARAPATA

Coram: Keith J

Anderson J

Glazebrook J

Appearances: R A Harrison for the Appellant

J M Jelaś for the Crown

Judgment

(On the papers): 7 July 2003

JUDGMENT OF THE COURT DELIVERED BY KEITH J

[1]

This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Background

[2]	The appellant was convicted after pleading guilty in the District Court at Manukau to two charges of selling a class C drug (cannabis) and one charge of cultivation of cannabis, a prohibited plant.He was sentenced to three years imprisonment.He now appeals against that sentence on the ground that it is manifestly excessive.
[3]	The facts in brief are that the police carried out a straightforward undercover operation.On 18 July 2001 a plainclothes officer went to the appellant’s home and entered into negotiations for the sale of a number of cloned cannabis plants.The officer eventually purchased 30 of these plants at a cost of $20 each.The officer returned to the appellant’s home on 29 September and purchased a further 15 plants at the same price.
[4]	A search warrant was subsequently executed over the appellant’s home.Concealed in a shed on the property, the police found a sophisticated cannabis cultivation operation.The shed was divided into two rooms, one for growing cannabis in pots and one for propagating clones and storing equipment. Clones were grown using a hydroponic plant feeding system.Equipment for this operation, including electric fans, an ozone generator and electric lights were found around the rooms.300 cannabis plants were located, comprising eight mature cannabis plants ready for harvest, 28 plants of medium maturity, two mother plants and 247 cannabis plant clones. In addition, a quantity of dried cannabis plants was located, as well as facilities for drying cannabis head and leaf.Supplies of snap-lock bags, commonly used in the sale of cannabis, were located within an ammunition container.

The District Court sentence

[5]

The matter came before the sentencing Judge on the basis of agreed facts.The appellant was accepted to be a seller of clones, rather than of mature plants. It was also agreed by counsel that the appropriate starting point was four years.This put the offending in the upper end of category two or the lower end of category three as identified by this Court in R v Terewi [1999] 3 NZLR 62, 64.The Judge accepted this view.As the sentencing Judge put it, considerable effort and sophistication was reflected in the activities of the appellant.

[6]

The appellant had no prior convictions for cannabis use or cultivation.In light of this, the appellant’s age (42) and his guilty plea, the Judge considered that a discount of one year from the starting point was appropriate.He also referred generally to “the other identified mitigating features that [he has] been able to garner ...” .

Discussion

[7]	The primary submission for the appellant, as advanced by Mr Harrison, was that the Judge erred in failing to take into account the personal circumstances of the offender.The Judge, in sentencing the appellant, considered that he was obliged to put the offender’s personal circumstances to one side in accordance with the statements of this Court in R v Terewi.Mr Harrison submits that the Sentencing Act 2002 now requires this Court to reconsider whether offender’s personal circumstances should continue to be put to one side.
[8]	In the circumstances of this case it is unnecessary to decide this point.This is not the first occasion on which the Court’s approach to personal circumstances in R v Terewi has been questioned in light of the Sentencing Act 2002.In R v Ridout CA 120/02, 16 September 2002, a divisional court comprising Tipping, Hammond and Baragwanath JJ found it unnecessary to revisit Terewi although inclining to the view that “concerns under this head as to Terewi are overstated” (at para [17]).The Court in that case stated that it would be inappropriate to reconsider Terewi in a Divisional Court.We take the same view now that the matter is raised in an appeal to be determined on the papers.Whatever the merits of the argument, and we express the same reservations stated in R vRidout, it must await a full hearing of a permanent Court.
[9]	It is unnecessary to consider the point because, even considered in light of the R v Terewi, the statement by the Judge that he was “obliged to put to one side the prisoner’s personal circumstances” goes too far.R v Terewi is not authority for the proposition that in cases involving commercial drug offending, the offender’s personal circumstances must always be ignored.What was said by the Court in that case was that:

[13]As with any drug offending for the purpose of profit making, the personal circumstances of the offender whose activities fall within categories 2 and 3 are usually not to be given much significance in the sentencing process.The fundamental requirement is that the sentence imposed should act as a deterrent to other persons minded to engage in similar activity.

[10]	Particular, relevant personal circumstances can and have been taken into account in determining sentences for commercial drug offending: R v Coronno CA366/01, 6 December 2001; R v Ridout CA 120/02, 19 September 2002; R v Wharehinga CA438/02, 30 May 2003.In this case, however, we are not convinced that the Judge failed to take into account any relevant personal circumstances of the appellant such that the sentence imposed was manifestly excessive.
[11]	Mr Harrison, in his submissions, relies on the following circumstances as pointing towards a rehabilitative sentence. The offending, it is said, occurred during a temporary period of unemployment for the appellant during which the appellant engaged in excessive consumption of cannabis.Following his arrest, the appellant has returned to work, has reduced his cannabis consumption, and is supported by his family.The appellant in his Notice of Appeal also refers to the distress his imprisonment has caused to his family.
[12]	To the extent that the appellant relies on his lack of prior convictions for related offending and his age, the Judge expressly took those factors into account.As to the appellant’s re-employment and reduced cannabis use following his arrest for the offending, we consider that the Judge was entitled not to take this into account.This is not a personal circumstance that is relevant to culpability, compare R v Coronno CA366/01, 6 December 2001.Nor is it a personal circumstance that would make an otherwise appropriate sentence disproportionately severe in terms of s8(h) of the Sentencing Act 2002.Rather its relevance, as recognised by Mr Harrison, was to the prospects of re-offending and rehabilitation.The Judge was entitled to reject rehabilitation as a purpose of sentencing under s7 of the Sentencing Act and given the need for denunciation and deterrence in cases of commercial drug offending and the adverse comments concerning the appellant’s prospects for rehabilitation in the Pre-sentencing Report, we consider he was right to do so.
[13]	While this Court recognised in R v Harlen [2001] NZCA 130; (2001) 18 CRNZ 582 that the family situation of a convicted person is among the personal circumstances able to be taken into account by a sentencing Judge, the weight it will be accorded will depend on the circumstances.Imprisonment of a family member will almost inevitably cause family members hardship and distress.Having read the appellant’s statement, we cannot see any particular family circumstances that would make his custodial sentence disproportionately severe.This is not a case were there is a dependent to be cared for;compare R v Howard CA315/99, 2 December 1999; R v Harlen [2001] NZCA 130; (2001) 18 CRNZ 582; R v Taki CA281/02, 25 November 2002.
[14]	Mr Harrison’s second submission is that the starting point adopted by the Judge was too high.Given the unusual nature of the operation, that is cultivation for the purpose of sale of small cloned plants, it is submitted that that Court “could well have looked at a lower starting point”.This case was to be the subject of a disputed facts hearing, only to have the dispute resolved between counsel (not including Mr Harrison or Ms Jelaś). They also agreed on a starting point of four years. We consider thatstarting point was within the range available to the Judge. It appears from the Judge’s sentencing notes that the agreement that the appellant was a seller of clones related only to the 247 clones found in the separate room.That had the effect, the Judge said, of reducing the potential revenue of the plants from near to $1,000,000 had the clones been grown to maturity and harvested.However, there remained some 36 plants in various levels of maturity growing in a hydroponic system. This growing operation, which had been in operation for 12 months when it was discovered, was sophisticated and designed to produce cannabis of premium quality.There was evidence that those plants alone could produce an annual gross revenue of over $120,000.This would clearly justify a starting point at the higher end of category two or the lower end of category three.
[15]	The appeal is dismissed.

Solicitors:

Crown Solicitor, Auckland