R v Powell [2016] NZDC 4158 (10 March 2016)

Last Updated: 10 August 2016

IN THE DISTRICT COURT AT WELLINGTON

CRI-2014-085-002145 [2016] NZDC 4158

THE QUEEN

v

_{JASON POWELL}

Hearing:	10 March 2016
Appearances:	K Scott-Dowell for the Crown I Hay for the Defendant
Judgment:	10 March 2016

_{NOTES OF JUDGE B DAVIDSON ON SENTENCING}

[1] Mr Powell, you appear for sentence on a charge of cultivating cannabis.

[2] Over a 6½ year period between March 2007 and late July 2013 you were involved in the growing of cannabis in a garage in your Upper Hutt property. You lived at this property with your partner and other family members.

[3] The operation was set up at some cost in early 2007. The cultivation over the first 6 years of that period is reconstructed from various pieces of information available to the Crown. It is estimated that over this period at least 200 cannabis plants were grown, with a potential value of at least $324,000.

[4] The offending over the last few months of the period between May and August 2013 is based on a search of the property at the end of July. When searched the police found 25 plants. The police also noted that the electricity meter had been

_bypassed.

R v JASON POWELL [2016] NZDC 4158 [10 March 2016]

[5] These 25 plants were capable of yielding at least 12½ pounds of cannabis with a value of at least $40,000. There was evidence to show that 7 plants had been harvested earlier. These further 7 plants could have produced a further 3½ pounds of cannabis with a value of at least $11,000.

[6] Your involvement was significant; you were an owner of the property, you were involved in the set up of the growing operation, you purchased and helped in the installation of equipment. Throughout the period you were involved in planting, tending and harvesting. You kept in regular contact about the operation with others. You are said to have received a share of the proceeds and you kept detailed records of what had occurred.

[7] When all that is drawn into combination the only conclusion that I can draw is that you were fully involved in the cannabis growing operation throughout the entire period.

[8] You are aged 46. You have no previous convictions. You live with Ms Childs and 2 adult children. You have good employment where you are highly regarded. There is information before me which suggests that your conviction alone might result in your loss of employment. Certainly any sentence of home detention or imprisonment would lead to a loss of your employment. It might be possible for it to be saved were you to be sentenced to community detention.

[9] Some of the written submissions advanced on your behalf do not sit particularly comfortably with the factual basis to which you pleaded guilty. In Court Mr Hay made it clear that your major area of concern lies with the prosecution’s reconstruction of yields and values over the previous 6 years.

[10] Nevertheless the facts that I have recounted reflect what I believe to be a very cautious approach to those reconstructed facts.

[11] The aggravating features of your offending are self-evident; this was organised, it was premeditated, it was planned, it was ongoing and it was sustained.

[12] Your level of involvement was significant. In fact, it is really hard to see how you could be any more involved. The operation through that entire period had a significant potential as far as yield and profit was concerned.

[13] By way of mitigation I take into account your plea of guilty. It was given very late but it did save what would have been a very significant trial from going ahead.

[14] I take into account the fact you have no previous convictions. But the discount for that must be tempered by the fact that this offending occurred over several years. I also take into account that you, as a result of these charges and intervention by the police, have essentially lost your property.

[15] The Crown submit that the starting point in sentencing you should be imprisonment of 4 years. Ms Scott-Dowell notes that although you were only involved in the cultivation of cannabis at one address, it was ongoing and extensive. She submits that any sentence short of imprisonment would simply be inadequate and inappropriate. She notes that your discount for your plea of guilty should be only fixed at around 10%, that your good character discount should be tempered by the fact that you have offended while over a considerable period.

[16] Your counsel submits the Crown starting point is too high. He submits it should be something in the order of 2¼ years’ imprisonment to reflect your level of involvement and in order to achieve some sense of parity with some others from the same operation who have already been sentenced. I will return to that aspect in a moment.

[17] He notes that you have already been penalised by the loss of your property. He submits that although your offending spanned a 6½ year period, it was somewhat sporadic. He emphasises your good employment.

[18] Parity is important but in the end no 2 cases are exactly the same. Two have been mentioned today; one of which I sentenced Mr Akavi. He was involved in not

only cultivating in the sense that he was a caretaker, but he also was involved in actual selling.

[19] Your involvement, in my view, in this offending is somewhat similar when set against his.

[20] It is worse however than another defendant Mr Mihaere. There was only, in his case, 19 plants involved over a period of around a year. His offending therefore involved a much lesser period in time, a much lesser number of plants and much lesser potential yields and potential value.

[21] So Mr Powell, the starting point that I have to adopt must reflect the brutal reality of the situation. Here you offended over 6½ years. For the first 6 years at least 200 plants with a potential value of $324,000 were grown. Over the last 6 months there were a further 25 plants at least, possibly 7 more. Their potential yield and value in themselves was considerable.

[22] You were an owner of the property and played a significant, if not integral, role in the ongoing cultivation.

[23] For my part I cannot see any starting point less than 3½ years as appropriate. It should not be as high as Mason Tobin who was involved in cultivation at several addresses. It is somewhat akin to my sentencing of Mr Akavi but in your case there is no evidence of actual dealing which existed in his.

[24] The starting point I adopt is imprisonment of 3½ years.

[25] The first discount I give you is for your lack of previous convictions. I fix that at 3 months. It is tempered to that figure because here you offended over a significant period.

[26] I give you a further discount of 3 months’ imprisonment to reflect the fact that your house was lost and that a consequence of your sentencing today will almost certainly be the inevitable loss of your employment.

[27] All of that would lead to a sentence of 3 years’ imprisonment before I

consider your discount for pleading guilty.

[28] It is true that you pleaded guilty late; equally it is true that you helped spare what would have been a very significant trial. Doing the very best I can I give you a further discount of 6 months’ imprisonment to reflect your plea of guilty.

[29] All of that would lead to an end sentence of 2½ years’ imprisonment. There is no basis therefore to consider any other form of sentence for you.

[30] On the charge you will be sentenced to imprisonment for 2½ years. [31] There will be orders for forfeiture and destruction as appropriate.

B Davidson

District Court Judge