R v Te Wake [2012] NZHC 3405 (13 December 2012)

Last Updated: 9 January 2013

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-073-112 [2012] NZHC 3405

THE QUEEN

v

KEREOPA TE WAKE

Defendant

Hearing: 13 December 2012

Appearances: R Mann and J Tarrant for Crown

J Gurnick for Prisoner

Judgment: 13 December 2012

_{SENTENCING REMARKS OF LANG J}

R V KEREOPA TE WAKE HC HAM CRI-2012-073-112 [13 December 2012]

[1] Mr Te Wake, you appear for sentence today having pleaded guilty in the District Court to two charges of cultivating cannabis. The maximum sentence on those charges is seven years imprisonment. The District Court declined jurisdiction to sentence you and committed you to this Court for sentence.

[2] This morning I heard evidence from two police officers and from yourself regarding disputed facts. It will be necessary for me to determine those facts before I proceed to sentence you. In doing so, I remind yourself that because the dispute goes to the heart of your overall culpability, the onus remains on the Crown to prove the factors upon which it relies beyond reasonable doubt. As a consequence, if I consider a scenario to which you have pointed to be reasonably possible, I am required to give you the benefit of that doubt.

[3] Before I deal with the facts in dispute, I propose to set out briefly the essential facts giving rise to the charges.

The facts

[4] The charges arose after the police carried out aerial surveillance of remote country areas near Waitomo in the latter part of 2010. The police discovered a reasonably large-scale cannabis plantation growing in wire cages in the bush. They then covertly installed cameras within the growing area in an effort to identify those responsible for growing the cannabis. The photographic images that the police obtained as a result of using this covert form of surveillance demonstrated that you were one of a number of people who arrived at the crop to tend it in late December

2010 and early January 2011.

[5] On 20 January 2011, a police team entered the bush and examined the growing plots. They found a very significant number of fenced-in areas that extended in total circumference for some hundreds of metres. The plots were different in the sense that approximately 14 contained cannabis growing in them. The remainder were empty and strewn with weeds. The existence of these latter

plots suggests that the site had been used for some time as a place where cannabis was grown on a reasonably significant scale.

[6] The police found a total of approximately 360 cannabis plants of various heights and descriptions within the 14 plots. They also found indicators of cultivation such as fertilisers, sprays and water containers. The covert footage that the police had obtained confirmed that you and your associates made visits to the site from time to time in order to tend to the crop. Other husbandry measures, such as the removal of male plants from plots within which female plants were growing, also indicated that those who were growing the plants knew what they were doing.

[7] The largest plants were approximately two metres in height, and were reaching maturity. Others, however, were much smaller than that and had obviously been planted at a later time.

[8] The police estimate that, on a conservative basis, it is likely that the plots in which cannabis was being grown could have produced cannabis having a value of around $500,000.

[9] Within the general area, the police found two obvious camp sites. I have seen photographs of one of these and it is clear that it was reasonably well used. There are a large number of food and other containers strewn about the area of the camp. Obviously, people stayed at the camps from time to time in order to tend the plants. That is not surprising, because the evidence confirms that the area where the plots were located is a two hour walk from the road. The area is, however, accessible, presumably by a four wheel drive vehicle, by means of a 15 minute walk from private farm paddocks.

[10] On 8 March 2012, having identified you as one of the persons responsible for cultivating the cannabis, the police executed a search warrant at your home. The summary of facts, with which you apparently take no exception, records that the police found two cannabis plants growing in the garden of the address. In evidence today, it has been suggested that in fact this was one plant that had two large stems.

It is not necessary, however, to resolve that issue, because it is immaterial to the sentence to be imposed on you.

Resolution of disputed facts

[11] The need for a disputed fact hearing arose because you did not accept that you were responsible for, or involved in, the cultivation of all of the cannabis plots that the police found. In addition, you did not accept that such responsibility as you did have, was commercial in nature. You contended that your involvement in the cultivation of cannabis at this remote location was solely for the purpose of growing cannabis for your own use.

[12] When you gave evidence today, you said you had been approached by a person whom you would not name, and asked whether you wished to become involved in a cannabis growing venture. You initially became involved by driving others to the area where they obtained access to the plot from the road, and dropping them off. You would then collect them after they had tended the plot.

[13] Subsequently, one of the members of this group dropped out, and you were asked whether you wished to replace him. You indicated you were prepared to do so. You said that in October 2010 you were dropped off with other members of the group, and walked into the area where the cannabis was being grown. You said that on this occasion you were given fertilisers to take into the plot. You said that when you got to the growing area, you were given a number of cannabis seedlings. You then dug holes, and planted the seedlings within, a caged area that the police later referred to as Plot B.

[14] You said that thereafter you visited the plot on four or five occasions to tend your plants. You said that your only interest in growing the plants was to obtain cannabis for your own use. You said you had no interest in the other 13 plots, and you did not assist in growing the cannabis the police later found growing in those plots.

[15] At the end of the hearing, I indicated that I rejected this explanation and I

now give my reasons for so doing.

[16] First, I do not consider credible the circumstances you describe when you became involved in the growing operation. I consider it highly unlikely that the persons who were responsible for this growing operation would have offered to allow you to become involved unless you were prepared to become involved in the whole growing operation. I see no reason why, and you did not give any, they would provide you with a large number of seedlings for your own use and expect nothing in return.

[17] I also consider it relevant that Plot B was just one of 14 plots in which cannabis was being grown. A considerable amount of work would need to be undertaken in order to tend to all of the plots. I consider it highly likely that you became involved as a means of providing another pair of hands to tend all of the plots. It simply does not make sense, in my view, that those responsible for such a large operation would, for no apparent reason or benefit to them, offer a person who is effectively an outsider the opportunity to grow cannabis for himself in just one of the plots.

[18] I found two other aspects of your evidence difficult to accept. First, the camera footage shows you at the address at approximately 6 am on the morning of

29 December 2010. You confirmed in evidence that it took you approximately two hours to walk into the area, and that it was a further 45 minutes drive from your home in Te Kuiti to the point where you were dropped off. If this is correct, you must have left home some time shortly after 3 am. I find that difficult to believe. It is more likely, in my view, that you stayed the previous night at the camp. If that is the case, I consider it highly likely that you were one of the persons principally responsible for the whole crop, rather than just for one particular area.

[19] In addition, the covert surveillance footage, shows that you were working at the plot at 8.31 pm on 3 January 2011. There is subsequent footage of a person working in the same area just after 9 pm, but it is not possible to say whether that person is you. There is then further footage showing that you were back in the same

area at 8.17 am the following morning. You said in evidence that you would have driven home on the evening of the 3rd, and you would have come back early in the morning on 4 January.

[20] I do not consider that to be credible. On my calculations this would mean that you drove home arriving there at somewhere around 11 pm on the night of 3

January 2011. You must then have got up just four or five hours later to travel back to the cannabis plot. Again, I consider it far more likely that you stayed the night at the camp. This reinforces my view that you were one of the persons responsible for the overall cultivation of the plants that were there.

[21] In addition, your evidence about your own cannabis consumption left me with considerable doubts as to your credibility. You said that you have smoked cannabis on a regular basis since you were 16 years of age. You said your consumption of cannabis became greater when you were 25 years of age, because of a personal tragedy that occurred at that time. You said that by 2010 your consumption of cannabis was at a stage where the cannabis plant that the police found growing in your garden would last you for three months.

[22] If that is the case, I find it incredible that you would, as you claim, be growing even the 75 plants in Plot B for your own use. If one cannabis plant lasts you for three months, it follows that approximately four plants will last you for a year. Even if ten or 20 per cent of the 75 plants in Plot B did not come to full maturity, nevertheless you were left with a very large supply of cannabis. The amount grown in Plot B is so significant that, in my view, the prospect that it was all grown for personal use is highly remote. It does not come close to being reasonably possible.

[23] For those reasons, I do not consider you were telling the truth in relation to the purpose for which the plants in Plot B were being grown, and this affects your overall credibility significantly. I consider you were part of the group who tended to all of the plots in the plantation. My view on this is reinforced by the fact that the surveillance photographs clearly show another person showing a distinct interest in the plants within your so-called plot. It is difficult to see why that person would be

showing such interest if those plants belonged solely to you, and no other person had an interest in them. I consider you have tailored your evidence to reflect the fact that the surveillance cameras only depict a particular area of the plantation. This has enabled you to construct a story restricting your involvement in the overall cultivation to the area shown in the surveillance footage.

[24] For those reasons, I reached the clear view, and was satisfied beyond reasonable doubt, that the vast majority of the cannabis in the plantation was being grown for commercial purposes, albeit I accept that some of it would have been for your personal use. In addition, I am satisfied that you had an involvement in the overall operation, and that your involvement was not just restricted to Plot B.

Starting point

[25] In any case involving the commercial selling of cannabis, the starting point for the sentence must be determined having regard to the guideline judgment of the Court of Appeal in R v Terewi.[1] In that case the Court of Appeal identified the starting point to be applied in respect of bands of offending in relation to the cultivation of cannabis. The Court said that offending within band two, which applies to small scale commercial cultivation of cannabis, will attract a starting point of two to four years imprisonment. Band three, which involves larger commercial operations, has a starting point of between four and seven years imprisonment.

[26] I consider that the offending in this case falls on the cusp of bands two and three. This was undoubtedly commercial cultivation of cannabis. It was also reasonably sophisticated, involving as it did the erection of so many caged areas within a remote location. The fact that the plants were well tended, notwithstanding the remoteness of the location, is testament to the dedication of those involved in the operation.

[27] For that reason, I select a starting point of four years imprisonment on the charge of cultivating the cannabis in the plantation. I do not consider any uplift

_{needs to be applied in relation to the single cannabis plant the police located at your}

property when they searched it on 8 March 2011. I am satisfied that plant was for your own use, and that the starting point should not be increased to reflect it.

Aggravating factors

[28] You have previous convictions for driving with excess breath alcohol and assaulting a female. Those convictions are, however, historic and they have no relevance to the present offending. For that reason, I put them to one side for present purposes.

Mitigating factors

[29] It remains, therefore, for me to determine the extent to which I should reduce the starting point to reflect mitigating factors personal to you.

[30] Your counsel has urged me to provide you with a credit for the fact that you have, up until now, been a person of good character. That ignores the two convictions to which I have referred but, more importantly, ignores your own admission that you have now been using cannabis on a very regular basis for approximately 30 years. You have also been growing cannabis on your admission for approximately the last three years. In those circumstances, I do not consider I can appropriately give you credit to reflect that factor.

[31] I do not identify, either, any concrete expressions of remorse that should attract a discrete discount from the sentence.

[32] This leads me to the issue of your guilty pleas. You entered the guilty pleas at a reasonably early stage in the District Court. For that reason you are obviously entitled to credit for your pleas. It is clear, however, that your pleas were entered on a qualified basis, because you did not accept much of the Crown case. As I have already indicated, you did not accept that your involvement was for commercial purposes and you endeavoured to restrict your involvement to 75 out of approximately 370 plants. For that reason it cannot be said that you accepted full

responsibility for the extent of your offending, and it was necessary for the Crown to prove that its assertions were correct.

[33] For that reason, I am not prepared to give you the 25 per cent discount that your guilty pleas might ordinarily attract in those circumstances. Instead, I propose to apply a discount of six months to reflect your guilty pleas.

Sentence

[34] On the charge of cultivating cannabis between 20 December 2010 and

20 January 2011, you are sentenced to three years six months imprisonment.

[35] On the charge of cultivating cannabis on 8 March 2011, you are sentenced to three months imprisonment.

[36] Those sentences are to be served concurrently with each other.

Orders

[37] For completeness, I make an order for the destruction of the cultivation paraphernalia the police located at the growing site.

_{[38] Stand down.}

Lang J

Solicitors:

Crown Solicitor, Hamilton

Counsel:

J Gurnick, Hamilton

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