R v McFarlane [2024] NZDC 9829 (3 May 2024)

Last Updated: 25 June 2024

IN THE DISTRICT COURT AT NEW PLYMOUTH I TE KŌTI-Ā-ROHE KI NGĀMOTU

CRI-2022-012-001524 CRI-2022-012-001672 CRI-2023-012-000250

[2024] NZDC 9829

THE KING

v

GARRY DOUGLAS McFARLANE MELANIE JUNE AFATO

Hearing:	3 May 2024
Appearances:	H Bullock for the Crown J Mooney for the Defendant Mcfarlane K Pascoe for the Defendant Afato
Judgment:	3 May 2024

NOTES OF JUDGE G F HIKAKA ON SENTENCING

[1] Mr Mcfarlane and Ms Afato, you are jointly charged with four cannabis related offences. The first is that between 1 December 2021 and 23 September 2022, you were cultivating cannabis.

[2] The second is that on 23 September 2022, you were in possession of cannabis, such a quantity that it was for supply, 9 October 2022, importing cannabis seed and between 1 July 2021 and 23 September 2022, selling cannabis plant.

R v GARRY DOUGLAS McFARLANE [2024] NZDC 9829 [3 May 2024]

[3] You have pleaded guilty to those charges. There was some issue earlier on about a disputed fact hearing and no one is clear what that was about but you have accepted the contents of the summary of facts which I will get to shortly.

[4] The reason I mention that is that your current lawyers are the third in line of lawyers you have had following your first appearance on these charges in September 2022. The offending took place in South Otago, and you have been to different places since then and are now in Taranaki.

[5] Back to the summary. You have been in a relationship with each other for about 20 years. You were living at the South Otago address that was owned by you, Ms Afato, and that you both lived at that address since the end of 2017.

[6] In 2018 there was a search warrant there and 53 cannabis plants at various stages of growth were located. There might have been some charges earlier, I do not know, but since the end of 2021, you have both been cultivating cannabis at your address.

[7] You used two bedrooms of the three-bedroom house. You set up multiple grow tents, a climate control unit, fans, filters and lighting to maximize plant growth. There is a shed at the property that was used as a nursery for immature seedlings before transferring them to grow tents in the bedrooms. It is said Ms Afato, that you used to tend the seedlings, regularly watering and feeding. The shed was also utilised to dry the plants when they were harvested.

[8] The summary says that you, Mr Mcfarlane, took a lesser part in the physical acts of cultivating the plants, but provided advice and support to your partner, Ms Afato.

[9] On Friday, 23 September 2022, a search warrant was executed at your address. You were both home at the time. There was a large and sophisticated cannabis grow, utilising the two bedrooms that I referred to earlier. There were 221 separately potted plants recovered from the address, all at various stages of maturity, from seedlings to

mature plants. In the shed were 127 of these plants that measured roughly four to five centimetres in height.

[10] From the property, in general, a large amount of equipment was seized. It was used solely for cultivation of cannabis, such as grow tents, lighting, filters and other drug-related paraphernalia.

[11] The summary goes on to refer to possession of cannabis for sale and that says that in the lounge of the address was a bucket which held 17 individual snaplock bags all containing approximately 30 grams of cannabis. A total of 511 grams of cannabis head contained in those snaplock bags.

[12] Also located in the lounge at the address was a backpack which contained five mason jars and a plastic container. In the plastic container were 16 individually tinfoil wrapped cannabis tinnies containing a total of 28 grams of cannabis head between the 16 tinnies.

[13] Between the five differently sized mason jars there was a total of 526 grams of cannabis head. In total the summary says 1,070 grams of cannabis head was recovered from the address.

[14] Also at the address was a mason jar hidden in a clothing drawer which contained several hundred cannabis seeds. In total the weight of the cannabis seeds was 275 grams.

[15] Under the heading of “importing cannabis seed”, the summary refers to you both arranging for seeds to be sent from an unknown supplier in Italy through email. I presume the arrangements were through email.

[16] On 9 October 2022, Customs intercepted a letter addressed to you, Ms Afato, at that South Otago address. It contained 18 cannabis seeds within a small plastic container. They were seized.

[17] The final part of the summary of the offending refers to between 1 July 2021 and 23 September 2022, you were both engaged in selling cannabis to others over

18 years of age in the South Otago area. The sales would be arranged through electronic messaging and some purchasers were regular customers.

[18] An analysis of the electronic messages showed you, Ms Afato, conducted the majority of the offers and sales but Mr Mcfarlane, you also at times made offers and sales during that period.

[19] Over the period, a financial analysis showed unexplained deposits into your account, Mr Mcfarlane of $12,310 and into your account, Ms Afato, of $79,000. Proceedings under the Criminal Proceeds (Recovery) Act 2009 have been filed by the Commissioner of Police. This summary is coming up to two years old so I presume that has progressed somewhat.

[20] Ms Afato, you explained when police arrived that the cannabis you were growing belonged to you but declined to comment any further. You declined to speak about the volume of bagged cannabis. Mr Mcfarlane, you told the police that growing was Ms Afato’s doing and that the cannabis is produced into seeds. Then you also declined to speak on the large volume of bagged cannabis. Declining to speak about the charges is entirely within your rights and is not taken as a negative factor.

[21] You have both appeared previously and the final paragraph of the summary seeks forfeiture of the gear and cannabis plants and seeds.

[22] Ms Afato, you have five previous convictions from 1995 through to 1996 and one of them is drug-related. It was your last conviction in September 1996, possession of a pipe or other utensil for cannabis use. You were ordered to come up for sentence if called upon.

[23] Mr Mcfarlane, you have 23 convictions between 1995 and 2020, 12 of them are for drug-related offending. So when it comes to the submission that your role in this offending was less than your wife Ms Afato’s, that is taken with a degree of scepticism because your history of convictions before the Court indicates that your advice would have been very valuable to your wife, given the number of

cannabis-related convictions you have, four of the 12 drug-related convictions are for cultivating cannabis.

[24] There is no issue with the case that the sentencing Courts take into account for dealing with this sort of offending, R v Terewi, a Court of Appeal decision and it sets various bands.1 In the case of you two there is no issue with the second band or category 2 of that case applying. That says the starting point of sentence is within two years, three months to two years, six months’ imprisonment. That is what the Crown think is the appropriate start-point and there is no issue taken with that by your counsel although they are generally more toward a two-year start-point mark.

[25] The concerning features, and there is just a brief reference to them in the Crown submissions and I have to say these submissions are from the Crown in the Dunedin area as a result of the charges first being filed there.

[26] From my perspective of all the offending that you have accepted, is the degree of sophistication involved in this operation. You had a three-bedroom house, two rooms of that house were dedicated to your growing operation. You had multiple tents, all the implements and devices to maximise growing were present, climate control, fans, filters, lighting. There was a shed on the property that was used as a nursery, so it would seem that the majority of that dwelling was dedicated to this illegal enterprise you both embarked on.

[27] It is noted in the summary, as I have already said, that you Ms Afato were responsible for tending, watering and feeding the plants and yours Mr Mcfarlane was more support, by way of advice and support. For the reasons already stated, that would have been very helpful support and advice, given your history of related offending throughout the time you have been before the Courts.

[28] Now 221 separate plants, over half of them at a reasonable stage of development, the quantity of cannabis that was already prepared for sale, given the way it was wrapped in tinfoil and stored, your intent on continuing this operation is

1 R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA).

evident from the importation of the seeds. So basically 1,070 grams, over 221 plants all go to support my view that this was an extensive and sophisticated operation.

[29] Added to that were the sales and the otherwise unexplained funds in your respective accounts. Between the two of you $91,310 in your accounts and the criminal proceeds provisions have been activated with respect to that money.

[30] But that is indicative of the sophistication, the commitment to this sort of offending and why, in my view, the bands referred to would see you closer to the third band and a start-point of three years’ imprisonment. You went about this offending over a period of time. I will get to the intent that you have both expressed, to be suppliers of illegally sourced seeds to licenced cannabis providers. However, you were some way off before you would be in a position to provide those seeds to those suppliers.

[31] I have already noted something of a concern when there was information in the submissions about licenced suppliers being able to source a number of seeds and plants from illegal sources which, as I have observed, could indicate that the government sanctioned illegal cannabis growing activities. Hard to know but there is a declaration form attached to one of your submissions, referring to medicinal cannabis and declaration of illicit seeds and plants.

[32] Both of you are familiar with the two licenced cannabis providers at present. There are letters of support from those people with respect to this criminal process that you are facing at the moment. It would appear that one of them intends in the future to take advantage of your experience and knowledge, Mr Mcfarlane, and have you assist in that licenced cannabis activity as a voluntary advisor. Again that would, it seems to me, raise all sorts of issues with respect to the licence holder and whether the licence extends to people in your position and whether they would be prepared to have you there.

[33] You both are pursuing work opportunities that are not drug-related and therefore your counsel are keen to see the recommendation from the advice to court report writer for a home detention sentence in the Taranaki area as the end sentence.

[34] To be frank there is a reservation about that from my perspective. Reasons being the size and sophistication and the obvious commerciality of the operation you were both conducting over a lengthy period of time and part of the concern is also the assessment of the report writer that both of you, and this assessment applies to both, but in slightly different words.

[35] Ms Afato, the report said that you appear strongly linked with cannabis and it is assessed as highly likely that your offending will continue. The other comment with respect to you, Mr Mcfarlane, is that again you are strongly linked with cannabis and that it is unlikely your offending behaviour will cease.

[36] In your report, Mr Mcfarlane, it says that you could re-offend if you were subject to home detention. There would be visits to the property every two to four weeks but that police may visit at different times in addition to corrections visiting.

[37] There is reference to medical needs for both of you which means that you have been prescribed medicinal cannabis but what is clear is that even with all of that in mind, you still progressed with this illegal activity for some time, committing the majority of what is available in your property to this enterprise and it with a reasonably profitable return between the two of you.

[38] I see the start-point of 36 months’ imprisonment because of the level of sophistication, extent and time. I am not clear on what the background is and no counsel here is, so I do not think it would be fair to reduce the discount available to you for a guilty plea because of that uncertainty.

[39] The Crown filed submissions from down south said 20 per cent is all that should be available. I think 25 per cent because I do not exactly know why the 20 per cent was put forward but that gets you to 27 months. I am prepared to reduce that to get you to the 24 months that will activate the opportunity for home detention and a 12-month home detention sentence for each of you.

[40] In my view that in some respects would mean the sentence is a test of your commitment to being law abiding, even with what seems a commitment to pursue being involved with cannabis illegally.

[41] You both have work opportunities that are not cannabis related. My encouragement is that you pursue those opportunities and because whatever you might think of the situation, the charges you face have significant penalties attached by way of the maximum prison sentence that could be imposed and frankly some of your activities move you closer to at least halfway along that spectrum than toward the minimal end of it.

[42] Home detention is a serious sentence. It is restrictive. It means most of what you will be doing away from the property will be only done with the approval of the probation officer. It will mean there could well be random visits to see that you are abiding with what is expected of you. The short version is that if you were to re-offend in related ways, then the outcome for re-offending would be prison. You have set the foundation for that quite clearly through these charges.

[43] There will be an order for destruction of the paraphernalia, plants and seeds and any equipment, paraphernalia, whatever was involved in the operation are forfeited to the Crown.

Judge G F Hikaka

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 03/05/2024