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Borg v R [2015] NZCA 289 (8 July 2015)

Last Updated: 21 July 2015


IN THE COURT OF APPEAL OF NEW ZEALAND
CA 524/2014 [2015] NZCA 289
BETWEEN	KENNETH JOHN BORG Appellant
AND	THE QUEEN Respondent

Hearing:	30 June 2015
Court:	Winkelmann, Lang and Wylie JJ
Counsel:	M E Goodwin and G Ghahraman for Appellant M A Corlett for Respondent
Judgment:	8 July 2015 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

[1] The appellant, Mr Kenneth Borg, was found guilty following trial in relation to one count of cultivating cannabis, one count of procuring another to sell cannabis and two counts of possession for the purposes of sale. He now appeals his sentence of four years seven months’ imprisonment imposed by Judge Aitken, on the grounds that the sentence is manifestly excessive because it is out of line with sentences imposed for similar offending.^[1]

The offending

[2] The relevant circumstances of the offending are as follows. Mr Borg built a shed on property owned by his family trust in rural West Auckland. In a portion of the shed built into the side of the hill and concealed behind a wall of hay, he constructed four rooms for the purpose of cannabis cultivation. The rooms were fitted out with air ventilation which employed ventilators and carbon filters to reduce odour. The rooms had 600 light bulbs and reflective foil lining was installed on the lower half of the walls in three of the rooms to ensure effective containment of light and heat.
[3] As well as developing the purpose-built shed for growing the cannabis, Mr Borg taught his co-offender, Mr Hoole, how to grow the plants in those conditions. Although it was Mr Hoole who did the day-to-day work of cannabis cultivation, this was a partnership. Mr Borg conceived of and implemented a scheme to conceal his receipt of large sums of money from the sale of cannabis. It was agreed that Mr Hoole would pay the money to him as rent for the shed. For this reason the rent was set at a level well above market. Between August 2011 and June 2012 Mr Hoole paid $192,700 in rent. Mr Hoole pleaded guilty to four counts involving offences against the Misuse of Drugs Act 1975 and was called by the Crown as a witness at Mr Borg’s trial.
[4] Mr Hoole gave evidence that the operation had yielded at least 733 ounces of cannabis in that same time period. When the police executed search warrants, 1,587 plants were discovered at various stages of growth. Police also discovered 2.25 kilograms of dried cannabis hanging in one of the rooms and in the hallways. Approximately 1.7 kilograms of cannabis was found at Mr Hoole’s home.
[5] The expert ESR evidence at trial was that a plant in the conditions described above could yield anything from half to one ounce of cannabis, and that there was potential for those plants to produce over four growing seasons per year.

Sentence of co-offender

[6] By the time Mr Borg was sentenced, Mr Hoole had already been sentenced by Judge David Harvey,^[2] following on from a sentencing indication.^[3] Both the sentencing indication and the sentence contained only brief reasons. Judge Harvey characterised the offending as involving a large-scale operation, and significant commerciality. He fixed the starting point at six years’ imprisonment by reference to the tariff case for cannabis offending, R v Terewi.^[4] He placed it in category three of the categories of offending identified in that case.

The sentence

[7] Judge Aitken rejected a Crown submission that Mr Borg was the mastermind but instead proceeded on the basis that he was as culpable as Mr Hoole for the offending. Although Mr Hoole did the day-to-day work, Mr Borg owned the property, built the sheds, devised the lease scheme, taught Mr Hoole how to grow cannabis indoors, and received part of the proceeds of sale.
[8] R v Terewi makes clear that the potential financial yield of an operation is important in assessing its scale. Based on the expert testimony the Judge proceeded on the basis that this was a cannabis growing operation capable of producing around or in excess of $500,000 per annum in sales.
[9] The Judge noted that Judge Harvey had adopted a starting point of six years’ imprisonment for the cooffender, Mr Hoole. Having observed that there was little in Judge Harvey’s sentencing remarks to assist in understanding the reasons for that starting point, she then reviewed a number of authorities. Following this review, she accepted that a starting point of six years was towards the upper end of the range but consistent with the authorities. She adopted the same starting point of six years.
[10] She then considered matters raised by way of mitigation for Mr Borg. She took into account that the impact of his offending might well be that his mother would be forced to sell her house and move out of Auckland, because she had guaranteed Mr Borg’s business debts. She also took into account the emotional and practical impact that his imprisonment would have on his 11 year old daughter. Mr Borg shared custody of his daughter with his former wife, and the bond between father and daughter is strong. She reduced the sentence by 15 per cent to reflect the potentially severe impact his offending would have on his mother and daughter.
[11] She also gave Mr Borg a 10 per cent reduction in sentence for his remorse. She allowed this discount although she said that while he could be described as being remorseful about where he found himself, she struggled to make the connection between that remorse, and remorse for his offending. Nevertheless, she said she gave him the benefit of the doubt. Applying these discounts she arrived at a final figure of four years and seven months’ imprisonment.

Grounds of appeal

[12] It is common ground that the tariff case in offending involving the cultivation of cannabis is R v Terewi and that Mr Borg’s offending falls within category three of Terewi, the most serious class of offending involving large-scale commercial growing of cannabis.^[5] In Terewi this Court said that the starting point for category three offending is generally at least four years.^[6]
[13] Mr Borg argues that when sentencing him the Judge was over influenced by the need to apply a consistent sentencing approach to that adopted in respect of Mr Hoole, and this led her to adopt the same manifestly excessive starting point. Although she referred to other cases in which offenders had been sentenced for large-scale cannabis offending, those authorities (and other authorities referred to in support of the appeal) indicated a starting point of four years six months to five years’ imprisonment, rather than six years’ imprisonment. In particular the Judge characterised the cases of R v Daley^[7] and R v Prest,^[8] where starting points of six and a half and six years respectively were adopted, as involving similar offending. Mr Borg says the offending in each of those cases was more serious. Further, he argues that the Judge referred to R v Wilson without giving weight to the fact that although the potential income was predicted to be far greater than in the present case, a starting point of five years was also adopted.^[9]
[14] Mr Borg also argues that the Judge failed to address herself to cases involving similar offending, where lower starting points were adopted. Allowing for the discounts applied by the sentencing Judge, amounting to 25 per cent, the final sentence should have been between three years five months and three years nine months’ imprisonment.

Analysis

[15] This offending was correctly characterised as serious commercial scale offending. It sat comfortably within the middle to upper range of category three of Terewi.^[10]
[16] We accept Mr Borg’s argument that the offending in the case of R v Daley referred to by the Judge did involve a larger scale of operation.^[11] The scale can be gleaned from the number of plants and cannabis material found by police at the property – 3,331 plants under cultivation, 3,780 seedlings and 2,325 mature plants or portions of plants in the drying process. The police also recovered 23 pounds of dried cannabis. This Court held that the mastermind of that operation, Mr Daley, should have received a starting point six and a half years’ imprisonment.^[12]
[17] R v Prest may or may not have been a larger operation. It is difficult to say. Fewer plants were seized, about the same amount of dried material, but the calculation of yield was higher. In that case a starting point of six years was adopted. In R v Wilson this Court found a starting point of five years to be appropriate for greater yields.^[13]
[18] A review of the authorities reveals that in sentencing offenders the courts take into account matters other than the calculations of potential yield. The level of sophistication of the operation and the extent of investment in it are also relevant in determining the criminality involved in the offending. They are relevant because they evidence the level of premeditation, and also the extent of offending contemplated in the future. The authorities also reveal different approaches to calculating potential yield so that a comparison based purely on potential monetary yield is inadequate.
[19] Having reviewed all the authorities before the Judge and those referred to us, we agree that a starting point of six years was perhaps too high, but a starting point of five and a half years was within the appropriate range. As both counsel submit, the facts are probably closest to the offending in R v Nuttall, an authority which was not before the sentencing Judge.^[14] In that case, the offending involved 1,592 plants seized from a commercial warehouse which had been leased and converted into a cannabis growing operation. The operation had been on foot for two years. The Judge adopted a starting point of five years.
[20] We consider the offending in this case to involve a higher level of sophistication than in Nuttall. The Judge found that Mr Borg purpose-built the shed, excavating into the side of a hill to conceal the part used for cultivation. This was therefore a more significant undertaking on his part than Mr Nuttall’s conversion of leased premises. Mr Borg also set up a sham legal structure to allow the substantial proceeds of the offending to be paid to him without detection.
[21] Although the starting point may have been too high, the Court is not concerned with the mathematics of how a sentence is arrived at. The issue on appeal is whether the sentence imposed is manifestly excessive, taking into account both the starting point and aggravating and mitigating factors affecting that starting point.
[22] We see no basis to alter the final sentence imposed. In reaching this view we have taken into account that Mr Borg received overly generous discounts to reflect his personal situation and his remorse. The sentencing Judge acknowledged they were rather generous on the authorities. Family circumstances can in some circumstances be taken into account, including because they will make a particular sentence disproportionately severe. However the personal circumstances the Judge referred to are arguably not available by way of mitigation. The financial hardship Mr Borg’s mother will suffer seems to flow more from Mr Borg’s business dealings than his imprisonment. While we accept that the very fact of his imprisonment will cause hardship to his mother and daughter, imprisonment frequently causes hardship to the family of the offender, and where the offending is premeditated, as this offending clearly was, the impact on family is likely to be given little weight.^[15]
[23] Remorse has significance in terms of sentencing principles in one of two ways – either as a sign of atonement which might lessen the suffering of the victim (not relevant in this case), or as tangible evidence of the offender’s progress along the road to rehabilitation.^[16] Even if Mr Borg had expressed remorse for his offending at sentencing (although we see no evidence he did it may have been conveyed to the Court through counsel), expressions of remorse which occur only in the context of the sentencing process are likely to carry little, if any, weight. When seen in this light, the 10 per cent credit for Mr Borg’s remorse was difficult to justify.
[24] We suspect that the Judge felt constrained to a higher starting point than she would otherwise have adopted by the sentencing principle of consistency between co-offenders. She therefore allowed very generous discounts for Mr Borg’s remorse and family circumstances to ensure that the final sentence was not manifestly excessive.
[25] If a discount of 15 per cent for personal circumstances and remorse is allowed (which we still consider to be generous) from a starting point of five years and six months, a final sentence of four years eight months is arrived at. The Judge imposed a sentence of four years seven months. It follows that the sentence imposed was not manifestly excessive.