The Queen v Bin Af If and another [2009] NZCA 290 (8 July 2009)

Last Updated: 14 July 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA128/2009CA129/2009 [2009] NZCA 290THE QUEEN

v

MOHAMMED KAHLID BIN AF IFFAISAL BIN AF IF

Hearing: 29 June 2009

Court: Hammond, Simon France and Lang JJ

Counsel: P G Mabey QC for Appellants
T Epati for Crown

Judgment: 8 July 2009 at 11 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS OF THE COURT
(Given by Lang J)

Introduction

[1] Mohammed Bin Af If and his twin brother Faisal Bin Af If pleaded guilty in the District Court to charges of cultivating cannabis, possession of equipment for the purpose of cultivating cannabis, possession of cannabis for the purposes of selling it and selling cannabis. Faisal Bin Af If also pleaded guilty to one charge of receiving stolen property, namely a motor vehicle.
[2] On 30 January 2009 His Honour Judge Spear sentenced both appellants to an effective term of three years and four months imprisonment on the cannabis-related charges. He sentenced Faisal Bin Af If to a further cumulative term of six months imprisonment on a charge of receiving the stolen motor vehicle. In addition, the Judge ordered each appellant to pay reparation in the sum of $2,065.26. This represented the cost of repairing damage that the appellants had caused to two residential properties in which they had conducted separate cannabis growing operations.
[3] The appellants appeal to this Court on the basis that the sentences that the Judge imposed were manifestly excessive.

Background

[4] The charges against the appellants arose as a result of searches that the police carried out of two residential properties in Hamilton on 13 and 14 September 2007. The results of those searches were described in an undisputed summary of facts that the Judge relied upon in sentencing the appellants.

19 Pryce Place

[5] The police went to 19 Pryce Place, Hamilton on 13 September 2007. Faisal Bin Af If came to the door of the property and stepped outside, locking it behind him. As he stepped outside, the police detected an extremely strong smell of cannabis emanating from the house. As a result, they exercised their powers under s 18(2) of the Misuse of Drugs Act 1975 to search the property.
[6] When the police went inside the house they found that it had no furnishings at all. The windows of the property had been blacked out and covered by curtains. Inside the house they found what the summary described as a sophisticated cannabis growing operation.
[7] This included growing lights, fans, power transformers, lighting control units, timers and a large carbon filter. Three of the bedrooms had been set up as growing rooms. The walls of these rooms were lined with polythene and heat lamps were suspended from the ceiling. A total of 38 mature cannabis plants were found growing in the growing rooms. These had reached a height of approximately 1.5 metres.
[8] The police also found dried cannabis having a total weight of 1.9678 kilograms in the house, together with the roots of 16 plants that had been harvested earlier. In total the police estimated that the cannabis that they found at this property had a value of between $35,000 and $136,000.
[9] The police also estimated that the operation at 19 Pryce Place was capable of generating a crop that would be ready for harvest every 90 days. It therefore had the potential to generate four crops every year. The police later discovered that at the time of the search the appellants had been renting this property for about eight months.
[10] When the police searched the garage, they found a stolen Subaru motor vehicle. The vehicle had been stolen from a car yard in Mt Wellington five months earlier and was worth approximately $30,000. Faisal Bin Af If accepted responsibility for being in possession of that stolen motor vehicle.

3 Robert Grigg Place

[11] On the following day the police went to another residential property situated at 3 Robert Grigg Place in Hamilton. There they found Mohammed Bin Af If in the driveway with a rental truck filled with cannabis growing equipment. The police estimate that the equipment in the truck was worth approximately $40,000.
[12] When the police went inside the house they found that it, too, had been converted into a purpose-built area designed for the growing of cannabis. The property contained sophisticated items of equipment, including large filters concealed in the ceiling space that were designed to remove odour from the house. They also found growing lamps, chemicals, fans, planter boxes and polythene. As had been the case with the Pryce Place property, the appellants had carried out physical alterations to this property in order to adapt it for growing cannabis.
[13] The police also found approximately 3.5 kilograms of dried cannabis head material in the house, together with 1.5 kilograms of freshly harvested cannabis head material. The police therefore recovered a total of 4.978 kilograms of cannabis from the house in Robert Grigg Place. They estimate that the cannabis had a total value of between $30,000 and $55,000.
[14] In addition, they located scales and snaplock bags of the type commonly used to package cannabis for sale at street level. In another bag they found cash totalling $9.995. They found a further sum of $895 in cash on the person of Mohammed Bin Af If. The vast majority of the cash comprised $20 notes.

Grounds of appeal

[15] Counsel for the appellants contended that the sentences that the Judge imposed were manifestly excessive because of two factors:

1. The Judge adopted a starting point that was too high; and
2. The Judge failed to give sufficient credit to mitigating factors other than the guilty pleas.

Was the starting point too high?

[16] The Judge adopted a starting point of four and a half years imprisonment to reflect the totality of the offending in respect of the cannabis-related charges.
[17] The Judge observed that there had been some argument before him as to whether the offending fell within Category 2 or Category 3 of the leading decision of this Court in R v Terewi [1999] 3 NZLR 62. He noted that Category 2 applied to the small scale cultivation of cannabis plants for commercial purposes. Offending within this category will attract a starting point of two to four years imprisonment. Category 3, on the other hand, is reserved for offending that generally involves large scale commercial growing with a degree of sophistication and organisation. The starting point for offending within this category is four years imprisonment or more.
[18] The Judge also observed that, if he had been dealing with the cannabis growing operation at the Pryce Place property alone, he would have regarded it as falling within the upper level of Category 2. He concluded, however, that the addition of the cannabis growing operation at Robert Grigg Place lifted the offending into Category 3. It was for this reason that he selected a starting point of four and a half years imprisonment. In doing so he observed:

... That is to reflect the scale of the operation. It reflects the degree of commerciality involved reflected by the amount of money that you spent to set it up and the time that it could well have been in operation. Further, your admission that you actually sold cannabis. How much you sold is unclear. What is, however, without question is that cash found at Robert Grigg Place must be forfeited to the Crown as being the product of the proceeds of cannabis sales.

[19] Counsel for the appellants contended that the Judge was wrong to categorise the offending as falling within Category 3 in Terewi. He submitted that Category 3 was reserved for cannabis growing operations that involved a greater degree of culpability than that produced by the two operations in which the appellants were involved. He submitted that Category 3 will generally apply to cannabis growing operations involving considerably more plants than the police had found in this case, and where the overall scale of the operation is considerably greater in magnitude.
[20] We are not satisfied that it is entirely helpful to approach this case solely on the basis of whether or not the overall offending fell within Category 2 or Category 3 in Terewi. We consider that, although the principles in Terewi are undoubtedly important in any case involving the cultivation of cannabis, the starting point in the present case needed to be determined by applying conventional sentencing principles.
[21] The Judge was undoubtedly correct when he said that the starting point for the cannabis growing operation at Pryce Place fell within the upper level of Category 2 in Terewi. This was a significant operation by any measure. It involved the physical adaptation of an entire house to enable it to accommodate a cannabis growing operation that can properly be described as sophisticated in nature. It is clear, as the Judge observed, that a great deal of time and money had been expended to create optimum growing conditions for cannabis. As a result, the appellants had produced an environment capable of producing significant quantities of cannabis on a regular basis. The fact that dried cannabis and cannabis roots were found also demonstrated that the crop that the police found when they searched the address was not the first crop to be grown within the house. On its own, therefore, the Pryce Place operation would easily have attracted a starting point of three to three and a half years imprisonment.
[22] There can be no doubt, either, that that starting point needed to be increased in order to reflect the appellants’ culpability in relation to the cannabis growing operation that the police found at Robert Grigg Place. This was a completely separate undertaking. It, too, had many features to suggest that the appellants had been conducting a sophisticated cannabis growing operation at the address. The fact that the truck in the driveway contained equipment having an estimated value of $40,000 underscores the effort and expense that had been put into developing this operation.
[23] Although the police did not find plants growing at the property, it is obvious that cannabis had been grown there in the past. This is confirmed by the significant quantity and value of the harvested cannabis head material that the police found at the address. Added to this was the substantial quantity of cash that the police located. This, coupled with their guilty pleas on the charges of selling cannabis, clearly suggested that the appellants had sold cannabis in the recent past. Again, viewing the operation that the police found at Robert Grigg Place on a standalone basis, it could easily have attracted a starting point of two and a half to three years imprisonment.
[24] We therefore have no doubt that the Judge was entitled to reach an overall starting point of four and a half years imprisonment on the cannabis-related charges. That starting point reflected the overall culpability of the offending and also paid due regard to totality principles.

Did the Judge give sufficient credit for mitigating factors other than the guilty pleas?

[25] The Judge reduced the starting point by 25 per cent to reflect the appellants’ guilty pleas. He noted that those had not been entered until after the appellants had been committed for trial. No issue is taken with the allowance that the Judge made to reflect this factor.
[26] Counsel for the appellant contended, however, that the Judge ought to have reduced the sentence further to reflect the fact that the appellants had endeavoured to rehabilitate themselves whilst awaiting sentence. He also submitted that the Judge ought to have made a further allowance for the fact that the appellants had agreed to pay reparation to meet the costs of repairing the two properties in which they had conducted their cannabis growing operations.

Rehabilitation

[27] As counsel for the appellants reminded us, remorse is expressly confirmed as a mitigating factor by s 9(2) of the Sentencing Act 2002. Rehabilitation is an allied concept.
[28] Counsel acknowledged that, when an offender is being sentenced for commercial drug activity, issues of deterrence will be to the forefront. In such cases the personal circumstances of the offender will carry less weight than might otherwise be the case. He submitted, however, that personal circumstances are never entirely irrelevant. Where an offender has made efforts to rehabilitate whilst awaiting sentence, these deserve recognition. In this context counsel drew our attention to several cases in which efforts at rehabilitation and a determination to make a clean start had persuaded the sentencer to reduce the sentence that would otherwise have been imposed.
[29] Counsel for the appellants pointed out that his clients had referred themselves to an addiction counselling service whilst awaiting sentence. They had also placed a considerable volume of material before the Judge to demonstrate that they had complied fully with their bail obligations, that they now led a drug free lifestyle and that they were now actively involved in discouraging others from becoming involved in drugs.
[30] We accept that, although personal circumstances undoubtedly carry less weight in this arena, they may nevertheless be taken into account in some situations. As the Supreme Court observed in Jarden v R [2008] 3 NZLR 612 at [14], the offender’s personal background might provide an explanation for the offending or it might persuade the sentencer to adopt a more compassionate approach than would otherwise be the case. The approach taken in many of the cases to which counsel referred us are explicable on either or both of these bases.
[31] In the present case the Judge dealt with this issue by saying:

[24] At 24 years of age, the two of you have, of course, thrown away a great opportunity that you not only had, but in fact should have taken, of obtaining legitimate qualifications and developing a career. That has been your choice. I am informed by the material placed before me that you are to be considered at low risk of re-offending. It is difficult to make that assessment. Clearly, someone takes you on trust. You have both referred to an addiction counselling service and I have a report on the two of you that shows that you are making good progress. Unfortunately, it is a little too late to say that all this offending has arisen because of your declared addiction and that you should now be treated more leniently because you have recognised that.

[32] We have not been persuaded that the Judge was wrong to take the approach that he did in relation to the issue of rehabilitation. He was required to sentence the appellants on charges relating to the cultivation and sale of cannabis on a reasonably substantial scale. Nothing in the personal background of either appellant provided a legitimate explanation for the offending. If anything, the material available to the Judge suggested that they had discarded the opportunity to take up legitimate careers in favour of the easy money to be made from growing cannabis. This factor also effectively precluded the adoption of a compassionate approach to sentencing.
[33] In those circumstances the Judge was not required, in our view, to reduce the sentences further to reflect the efforts that the appellants had made to rehabilitate themselves whilst awaiting sentence.

Reparation

[34] The appellants offered to pay reparation totalling $4,130.52. This was the cost of repairing the damage that they had caused to the two houses in which they had been conducting their cannabis growing operations. They proposed to meet that obligation by tendering a bank cheque that their mother had brought to Court.
[35] The Judge ordered that each appellant was to pay reparation in the sum of $2,065.26. He recognised the offer of reparation by saying:

[27] Additionally, your mother is here today in support of you with a bank cheque for $4,130.52 which is the cost of the damage to the two houses. I am invited to make a reparation order today in respect of that damage so that, at least, the people who rented the houses to you will not be that much out of pocket. In my view, that enables me to bring the sentence back in each case on the cannabis operation, to one of three years and four months imprisonment, or 40 months in all.

[36] On our calculations the Judge reduced the sentence to be imposed upon each appellant by two weeks to reflect the offer of reparation. Counsel for the appellants contended that this gave the appellants insufficient credit for their voluntary offer to meet the cost of repairing the two houses.
[37] We agree that the offer of reparation did not ultimately have the effect of reducing the end sentences that the Judge imposed to any significant degree. We also accept, however, the submission for the Crown that the weight that the Judge afforded to the issue of reparation was proportionate in the circumstances. We do not consider that an offer by each appellant to pay reparation of just over $2,000 could significantly affect the end sentences to be imposed in this case having regard to the overall scale of the offending.
[38] We have therefore concluded that the Judge was not required to recognise the offer to pay reparation by providing the appellants with a larger discount than he did.

Result

[39] The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington