R V TERRY PHILLIP WHAREHINGA [2003] NZCA 90 (30 May 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA438/02

THE QUEEN

v

TERRY PHILLIP WHAREHINGA

Hearing: 22 May 2003

Coram: McGrath J

Laurenson J

Doogue J

Appearances: G. King for Appellant

G. de Graaff for Crown

Judgment: 30 May 2003

JUDGMENT OF THE COURT DELIVERED BY LAURENSON J.

[1]	The appellant pleaded guilty on arraignment to charges of cultivating cannabis, possession of same for supply, producing cannabis oil and being in possession of same for supply.
[2]	He was charged jointly with his brother and his brother’s partner who occupied a property in a rural area of Northland.The Police searched the property following a sighting of cannabis from a helicopter.
[3]	328 healthy plants were located.The majority were growing in plastic planter bags with the remainder in old car tyres filled with dirt and others directly in the ground.Also found were 5.779 kg of cannabis plant material of which 2.332 kg had been used in the production of cannabis oil.Equipment and implements for the cultivation of the plants and production of the oil were also found.The cannabis plants and oil were estimated to have a total value of approximately $375,000.
[4]	The learned District Court Judge considered the operation was clearly a large-scale commercial operation within category 3 as described in R v Terewi [1999] NZCA 92; [1999] 16 CRNZ 429 CA.As such a starting point of four or more years was called for and the sentencing purposes of denunciation and deterrence must predominate.Accordingly the probation officer’s recommendation for a sentence of supervision was unrealistic being contrary to both principle and precedent.
[5]	The Judge considered a starting point of five years was appropriate.This was reduced to three and a half years, taking into account the pleas of guilty, the appellant’s age of 24 years and his efforts to make a clean start.
[6]	The appellant submits that the sentence of three and a half years’ imprisonment is manifestly excessive for the following reasons:
a)	The finding that this case came within category 3 of Terewi was wrong and therefore so was the starting point of five years’ imprisonment;
b)	There was a failure by the sentencing Judge to recognise the appellant’s role at a secondary level.
c)	Insufficient weight was given to the mitigating factors, namely the early guilty pleas and personal circumstances including the lack of previous drug offending;
[7]	We now deal with each of these matters in turn:

The Starting Point of Five Years

[8]	Categories 2 and 3 in Terewi are referred to in paragraphs 4 and 5 of that decision as follows:

“[4] It remains appropriate to divide cannabis cultivation offending into three broad categories:

Category 1 ...

Category 2 encompasses small-scale cultivation of cannabis plants for a commercial purpose, ie with the object of deriving profit.The starting point for sentencing is generally between 2 and 4 years but where sales are infrequent and of very limited extent a lower starting point may be justified.

Category 3 is the most serious class of such offending.It involves large-scale commercial growing, usually with a considerable degree of sophistication and organisation.The starting point will generally be 4 years or more.

[5] As the Court remarked in Dutch, at p.308, “the border-line between each class may in specific cases be indistinct and sometimes incapable of exact demarcation”.We have avoided specifying numbers of plants for each category as was done in Dutch because we consider the numbers given there (“scores or hundreds” for Category 2 and “1000 plants or more” for Category 3) although relevant are no longer themselves an adequate guide where intensive cultivation methods are being employed with a view to enhancing the yield of usable cannabis – either by increasing the number of crops beyond what would occur naturally or by producing plants with higher narcotic levels.For example, by means of indoor growing systems the growth and harvesting of plants can be speeded up, reducing the cycle from 4 to 6 months to 40 to 45 days.And in the hydroponic method, plants not only mature earlier but also contain significantly increased levels of tetrahydrocannabinol.”

[9]	In addition at paragraph [11] the Court said:

“We consider that, in 1999 values, annual revenues of more than $100,000 (in cash or kind) will place a cultivation operation clearly within Category 3 but the differences in penalty may not be great where cases are close to the borderline.The division between the categories is merely a means to give a guide to penalty in relation to a particular position on the scale of offending.”

[10]

Putting aside the estimate of value of $375,000.00, it would not be unreasonable to conclude that the present case fell more appropriately towards the upper end of category 2 in which case the starting point of five years could be regarded as being too high.If, however, the monetary estimate is brought back into account, plus the fact that the offending also included the production of a Class B drug, cannabis oil, and the possession of same for supply, then the starting point is not, in our view, excessive.

The Appellant’s Secondary Role

[11]

It was submitted that there were indications that the two co-offenders were principally responsible for the drug operation in this case.One of them, the accused’s older brother, was still awaiting trial.The other, the brother’s partner, has disappeared.She was the occupier of the property where the plants were found.We find it difficult to see that there is any cogent evidence indicating that the appellant’s role was essentially less than the co-offenders.In the pre-sentence report the following appears:

“Mr Wharehinga said that at the time of the current offence he was a prospect for the Mongrel Mob.He said that he grew the cannabis, made oil and sold it because he wanted the money.He said that he used cannabis for the following reasons.He said that he had nothing to do, wanted to be part of the group, used it to cope with his anger and to cover his weakness and because he didn’t care anymore.He said that his anger related to thoughts about the physical and emotional abuse he was subjected to throughout his childhood which left him feeling sad, lost, confused, and rejected.He said that he was not willing to discuss his offending in detail because he did not want to implicate others.He said that at the time of the offence, he saw what he was doing as providing a future for himself and his thoughts were of the wealth that he would accumulate.He also said that since that time he has realised that his actions by example encouraged others to grow cannabis and to rob their own people and that at the time his mind was normally clouded by his drug and alcohol use.”

[12]	The sentencing Judge referred specifically to this portion of the report when dealing with this issue.The Judge said

“Your lawyer has said that you were not the principal party in this and therefore you should be sentenced as playing a minor role, a more minor role than the other people involved.You were not charged as a party, you were jointly charged with the other two and you pleaded guilty as such, so I am going to sentence you on that basis.Indeed you told the writer of the probation report that you committed these offences when you were a prospect for the Mongrel Mob.You said you grew the cannabis and made the oil because you wanted the money.”

[13]	We consider the Judge was well entitled to reach the conclusion she did.The appellant was patently fully and voluntarily involved in the operation.

Appellant’s Personal Circumstances

[14]	It was submitted on behalf of the appellant that insufficient weight had been given by the sentencing Judge to personal circumstances, namely that he had only one unrelated previous conviction, his age, the effect of the custodial sentence on him, his childhood background, his psychological profile and his subsequent reform after relocating to the family home.
[15]	These matters had been referred to in some detail in the pre-sentence report.The Probation Officer referred to the fact that the appellant had been assessed as a suitable candidate for the Structured Individual Programme available to offenders on parole or supervision.This programme was considered to be able to most effectively address the factors related to his offending and consequently result in a long-term reduction in risk of re-offending.The programme would be immediately available to the offender if he was sentenced to supervision.
[16]	Counsel for the appellant submitted that such a sentence would be consistent with the sentencing principle referred to in s.8(g) of the Sentencing Act 2002 namely to impose the least restrictive outcome appropriate in the circumstances.The failure by the Judge to accept this recommendation indicated an over-emphasis on the deterrent aspect of sentence.
[17]	The Judge had clearly taken into account the background matters referred to in the pre-sentence report and had concluded that in the light of her assessment of the scale of the operation, and the extent of the appellant’s involvement in it, that the recommendation by the Probation Officer was, as previously noted, unrealistic and quite contrary to both principal and precedent.
[18]	Having reviewed the matter we consider that the sentencing Judge’s assessment was correct.

Decision

[19]	The appeal is dismissed.

Solicitors:Crown Law Office, Wellington