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The Queen v Rakatau [2007] NZCA 21 (23 February 2007)

Last Updated: 5 March 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA404/06
[2007] NZCA 21

THE QUEEN

v

GARY GERARD RAKATAU

Hearing: 19 February 2007

Court: O'Regan, Chisholm and R Hansen JJ

Counsel: P S Coles for Appellant
S B Edwards for Crown

Judgment: 23 February 2007 at 12 noon

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chisholm J)

[1] Having pleaded guilty to the possession of cannabis for supply, cultivating cannabis, possession of cannabis oil and possession of utensils, the appellant was sentenced by Mallon J to a total of 23 months imprisonment. Leave to apply for home detention was refused. The appellant appeals against the length of his sentence of imprisonment on the ground that it is manifestly excessive.

Facts

[2] When the police executed a search warrant at the appellant’s home they found 2.6 kg of cannabis plant being dried in the lounge, three plastic bags of cannabis head weighing approximately 2.1 kg in the kitchen, and smaller amounts of cannabis totalling around 64 grams elsewhere in the house. In total the cannabis found in the house weighed approximately 4.8 kg. It had a street value of between $27,000 and $51,000. A set of scales and 72 plastic snaplock bags were also located in the house. These facts gave rise to the possession for supply charge.
[3] Five mature roots remaining after harvest were located in the back garden. It is not disputed that these plants were the source of the cannabis located in the house. The cultivating charge arose from these facts.
[4] Finally, various utensils, some of which contained residues of cannabis oil, were located in the kitchen. These support the remaining two charges.
[5] When spoken to by the police the appellant admitted growing, harvesting, consuming cannabis plant and supplying it to family members. He also admitted the possession of cannabis oil and utensils.

The appellant

[6] The appellant is 45 years of age. At the time of the offending he was living in the family home with his wife and five of his six children. Although he has a reasonably lengthy list of previous convictions, predominantly for traffic and dishonesty, there have been no convictions since 1998. Included in his previous convictions are five convictions for possession of cannabis between 1983 and 1988.
[7] According to the probation officer’s report the appellant told the probation officer that he had grown the cannabis plants for personal use, did not supply it to others, and the snaplock bags were not for cannabis packaging. It was the probation officer’s view that the appellant had limited insight into his offending and that there was a medium risk of re-offending.

Sentencing in the High Court

[8] For the purpose of sentencing Mallon J adopted the charge of possession for supply as the lead charge. She considered that the offending came within the second band of R v Terewi [1999] 3 NZLR 62 (starting point of two to four years) and that the appropriate starting point was two years and 10 months.
[9] In arriving at that starting point the Judge said that she had taken into account the amount of cannabis found and the appellant’s admission to the police that he:

...would have supplied it to family members, bearing in mind that the amount was substantially in excess of what you needed for your own needs. I have also taken into account that you are a heavy user and much, but by no means all, of the cannabis was for you. The 72 snaplock bags are consistent with supplying the cannabis to others.

Mallon J then indicated that she had considered some other cases to confirm the appropriateness of this starting point, in particular King v Police HC AK A.19600 17 November 2000, R v Makalio CA 10/02 20 May 2002 and R v Merry HC CHCH 91/00 24 October 2000. She commented that while all the cases had different facts the most similar was R v Merry where a similar quantity was found. However, she went on to say that in that case the cannabis was packed ready for supply and substantial amounts of cash were found.

[10] Aggravating and mitigating factors were then considered. Having concluded that there were no aggravating factors, the Judge allowed a credit of 11 months for the guilty plea and arrived at a sentence of 23 months on the charge of possession of cannabis for supply. A concurrent sentence of 23 months was imposed in relation to the cultivation charge plus concurrent sentences of one month in relation to each of the other two charges.

This appeal

[11] To a large extent this appeal revolves around the degree of commerciality.
[12] Given the appellant’s proven history of significant personal cannabis use and the statement to the police by one of the appellant’s daughters confirming non-commercial supply to others, Mr Coles submitted that the Judge should have started at around two years on the basis that the offending was at the bottom of category two in R v Terewi. He argued that the Judge had incorrectly equated supply to the family with sales, had overstated the degree of commerciality, and had adopted a starting point that was incompatible with R v Edmonds CA23/02 28 May 2002, R v Coleman CA80/05 31 August 2005 and R v Merry.
[13] In response Ms Edwards claimed that the Judge’s starting point of two years 10 months was well within the available range. In Ms Edwards’ submission the Judge was entitled to draw the inference that the amount of cannabis found was clearly in excess of personal requirements and that the snaplock bags and scales were consistent with sales rather than non commercial supplies within the family. She emphasised the dangers in attempting to draw fine comparisons between sentences and noted that in R v Keefe CA275/02 28 November 2002 a sentence of two years imprisonment had been upheld where the offending involved a little in excess of half a kilogram of cannabis.

Discussion

[14] It is clear from the sentencing remarks that although Mallon J accepted the appellant was a heavy cannabis user, she was nevertheless satisfied that the offending involved a significant commercial element. We are satisfied that this inference was open to the Judge on the information before her.
[15] Even allowing for the appellant’s personal use, a significant proportion of the 4.8 kg must have remained for supply to others without payment or by way of sale to others. Notwithstanding the statement by the appellant’s daughter that she had not seen her father sell cannabis to anyone and that he would give handfuls of cannabis "wrapped up in paper" to his mates or the whanau, the appellant acknowledged at sentencing through his counsel that there would have been "some sales to other persons". Moreover, as the Judge noted, the scales and 72 deal bags were consistent with sales to others. In all the circumstances the Judge was entitled to adopt the view that the appellant had downplayed his commercial dealing.
[16] It is not disputed that the offending in this case fell within category two of R v Terewi which would indicate a starting point of between two and four years before adjustment for special factors. The issue is whether the Judge’s starting point of two years 10 months was beyond the range reasonably available to her. There is, of course, no issue about the discount for the guilty plea. Having considered counsels’ submissions we have reached the conclusion that while the starting point was right at the top of the available range, it was not beyond that range.
[17] To the extent that Mr Coles claimed that the starting point adopted by the Judge was incompatible with R v Edmonds, R v Coleman and R v Merry, we note that the focus needs to be on the available range and that it is often unhelpful to draw comparisons with other cases: R v Paenga CA433/95 25 March 1996. In any event, it is clear that the Judge turned her mind to those cases and took them into account when arriving at her starting point. We agree with her that each case was distinguishable on its facts.

Outcome

[18] The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington

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[2]	When the police executed a search warrant at the appellant’s home they found 2.6 kg of cannabis plant being dried in the lounge, three plastic bags of cannabis head weighing approximately 2.1 kg in the kitchen, and smaller amounts of cannabis totalling around 64 grams elsewhere in the house. In total the cannabis found in the house weighed approximately 4.8 kg. It had a street value of between $27,000 and $51,000. A set of scales and 72 plastic snaplock bags were also located in the house. These facts gave rise to the possession for supply charge.
[3]	Five mature roots remaining after harvest were located in the back garden. It is not disputed that these plants were the source of the cannabis located in the house. The cultivating charge arose from these facts.
[4]	Finally, various utensils, some of which contained residues of cannabis oil, were located in the kitchen. These support the remaining two charges.
[5]	When spoken to by the police the appellant admitted growing, harvesting, consuming cannabis plant and supplying it to family members. He also admitted the possession of cannabis oil and utensils.

[6]	The appellant is 45 years of age. At the time of the offending he was living in the family home with his wife and five of his six children. Although he has a reasonably lengthy list of previous convictions, predominantly for traffic and dishonesty, there have been no convictions since 1998. Included in his previous convictions are five convictions for possession of cannabis between 1983 and 1988.
[7]	According to the probation officer’s report the appellant told the probation officer that he had grown the cannabis plants for personal use, did not supply it to others, and the snaplock bags were not for cannabis packaging. It was the probation officer’s view that the appellant had limited insight into his offending and that there was a medium risk of re-offending.

[8]	For the purpose of sentencing Mallon J adopted the charge of possession for supply as the lead charge. She considered that the offending came within the second band of R v Terewi [1999] 3 NZLR 62 (starting point of two to four years) and that the appropriate starting point was two years and 10 months.
[9]	In arriving at that starting point the Judge said that she had taken into account the amount of cannabis found and the appellant’s admission to the police that he:

[11]	To a large extent this appeal revolves around the degree of commerciality.
[12]	Given the appellant’s proven history of significant personal cannabis use and the statement to the police by one of the appellant’s daughters confirming non-commercial supply to others, Mr Coles submitted that the Judge should have started at around two years on the basis that the offending was at the bottom of category two in R v Terewi. He argued that the Judge had incorrectly equated supply to the family with sales, had overstated the degree of commerciality, and had adopted a starting point that was incompatible with R v Edmonds CA23/02 28 May 2002, R v Coleman CA80/05 31 August 2005 and R v Merry.
[13]	In response Ms Edwards claimed that the Judge’s starting point of two years 10 months was well within the available range. In Ms Edwards’ submission the Judge was entitled to draw the inference that the amount of cannabis found was clearly in excess of personal requirements and that the snaplock bags and scales were consistent with sales rather than non commercial supplies within the family. She emphasised the dangers in attempting to draw fine comparisons between sentences and noted that in R v Keefe CA275/02 28 November 2002 a sentence of two years imprisonment had been upheld where the offending involved a little in excess of half a kilogram of cannabis.

[14]	It is clear from the sentencing remarks that although Mallon J accepted the appellant was a heavy cannabis user, she was nevertheless satisfied that the offending involved a significant commercial element. We are satisfied that this inference was open to the Judge on the information before her.
[15]	Even allowing for the appellant’s personal use, a significant proportion of the 4.8 kg must have remained for supply to others without payment or by way of sale to others. Notwithstanding the statement by the appellant’s daughter that she had not seen her father sell cannabis to anyone and that he would give handfuls of cannabis "wrapped up in paper" to his mates or the whanau, the appellant acknowledged at sentencing through his counsel that there would have been "some sales to other persons". Moreover, as the Judge noted, the scales and 72 deal bags were consistent with sales to others. In all the circumstances the Judge was entitled to adopt the view that the appellant had downplayed his commercial dealing.
[16]	It is not disputed that the offending in this case fell within category two of R v Terewi which would indicate a starting point of between two and four years before adjustment for special factors. The issue is whether the Judge’s starting point of two years 10 months was beyond the range reasonably available to her. There is, of course, no issue about the discount for the guilty plea. Having considered counsels’ submissions we have reached the conclusion that while the starting point was right at the top of the available range, it was not beyond that range.
[17]	To the extent that Mr Coles claimed that the starting point adopted by the Judge was incompatible with R v Edmonds, R v Coleman and R v Merry, we note that the focus needs to be on the available range and that it is often unhelpful to draw comparisons with other cases: R v Paenga CA433/95 25 March 1996. In any event, it is clear that the Judge turned her mind to those cases and took them into account when arriving at her starting point. We agree with her that each case was distinguishable on its facts.