R v Ingley [2012] NZHC 3533 (19 December 2012)

Last Updated: 19 February 2013

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-073-112 [2012] NZHC 3533

THE QUEEN

v

ALBERT INGLEY JEREMIAH ROBERT KINGI

Hearing: 19 December 2012

Counsel: J Tarrant for Crown

R Laybourn for Mr Ingley

S Green for Mr Kingi

Judgment: 19 December 2012

_{SENTENCING REMARKS OF LANG J}

R V ALBERT INGLEY HC HAM CRI-2012-073-112 [19 December 2012]

[1] Mr Kingi and Mr Ingley, you appear for sentence having pleaded guilty in the District Court to charges of cultivating cannabis. You, Mr Ingley, pleaded guilty to one charge, whilst you, Mr Kingi pleaded guilty to two. The maximum sentence on any charge of cultivating cannabis is seven years imprisonment.

The facts

[2] The facts on which you fall to be sentenced are contained in a summary of facts with which you take no objection.

[3] The charges arise out of the fact that the police carried out aerial surveillance of remote 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 setting up the operation. The photographic images the police obtained as a result of using this form of covert surveillance demonstrated that you were both within a group of people who arrived at the crop to tend it in late December 2010 and early January 2011. Both of you were seen in the vicinity of the crop on two separate occasions.

[4] On 20 January 2011, a police team entered the bush and examined the plots. They found a very significant number of fenced-in areas that extended in total circumference for some hundreds of metres. Some of the plots were empty and were strewn with weeds. This indicates that they had been used in the past for growing cannabis, but then put to one side. Approximately 14 wire cages contained cannabis plants in varying states of growth. Some of them were relatively mature plants, whilst others were quite small. Obviously, the extent to which the wire cages had been installed suggests that this was an ongoing operation that had been in place for some considerable time.

[5] The police found a total of approximately 360 cannabis plants of various heights and descriptions within the 14 cages. They also found indicators of cultivation such as fertilisers, sprays and water containers distributed throughout the area.

[6] Other husbandry measures were in evidence. These included the removal of male plants from some plots from within which female plants were growing. This clearly indicates that those who were growing the plants knew what they were doing.

[7] 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.

[8] Within the general area, the police found two camp sites. I have seen photographs of these and it is obvious from them that from time to time those responsible for growing the crop would stay overnight in the area. That is not surprising because the area where the cages were located is a walk of approximately two hours from the nearest road. You live in Te Kuiti. In order to go to the plot you needed to travel approximately 45 minutes by road and then walk for the two hours necessary to get into the growing area.

[9] On 8 March 2012, the police terminated this operation. When they searched your address, Mr Kingi, they found two cannabis plants growing in the garden. This has led to the second charge of cultivating cannabis to which you have pleaded guilty.

Starting point

[10] In any case involving the commercial cultivation of cannabis, the starting point must be determined having regard to the guideline judgment of the Court of Appeal in R v Terewi.[1] In that case the Court identified the starting point to be identified 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 cultivations of cannabis, will attract a starting point of two to four years imprisonment. Band three, which relates to larger commercial operations, has a

_{starting point of between four and seven years imprisonment.}

[11] I consider that those principally responsible for the cultivation of cannabis in this case would fall on the cusp of band two and three. This was obviously a large and reasonably sophisticated operation, having in total approximately 360 cannabis plants. The dedication of those responsible for growing the cannabis is demonstrated by the steps they were required to take to gain access to the growing area and to maintain the crop once planted. For that reason I select a starting point of four years imprisonment for those involved as principals.

[12] Mr Kingi, I consider you were a principal. That is clear from the summary of facts and the fact that you were photographed tending the crop on two occasions. Your counsel does not take issue with that starting point.

[13] Mr Ingley, the position is somewhat different so far as you are concerned. Through your counsel you have maintained from the outset that you played a lesser role in this operation. Although you accept you were seen at the growing area on two occasions, you say those were the only occasions that you went there. You describe your involvement as that of a “water boy”, and through your counsel you have said that your only reward was to be the sum of $10 which, in any event, you were never ultimately paid. For that reason your counsel submits that a starting point very much below that selected for the principals should apply in your case. I record that the Crown relies solely on the evidence shown in the photographs demonstrating that you were tending the plants on two occasions. It cannot point to any other evidence suggesting a greater involvement.

[14] In considering the starting point to be selected in your case, several factors are relevant. First, notwithstanding any limited role that you may have had, you were prepared to become involved in tending a large-scale commercial crop. The starting point to be applied in your case must reflect that fact.

[15] Secondly, although I accept that some of the payment you received must have been in the form of cannabis for your own use, nevertheless it is equally clear that you sought financial reward for being involved. This is clear from the statements you have made to the probation officer. The pre-sentence report records that your motivation in becoming involved was for financial reasons because you needed

money to support your family. I do not for a moment accept that this comment could apply for two promised payments of $10. Rather, I consider you must have been promised more than that to become involved. For that reason I do not set your culpability as low as your counsel would have me do.

[16] Given the commercial nature of this operation, I select a starting point of three years imprisonment in relation to your involvement in the cultivation.

[17] Mr Kingi, I need to consider whether to increase the starting point I have selected to reflect the fact that two cannabis plants were found at your address on

8 March 2012. In an earlier hearing, Priestley J indicated that a starting point of four years two months imprisonment would be sufficient to encompass all of your offending including this charge. I consider the two cannabis plants to have been for your own use and I consider the starting point of four years imprisonment is sufficient to reflect that fact. I therefore do not increase the starting point to reflect the second cultivation charge.

Aggravating factors

[18] It is now necessary to consider whether there are aggravating factors personal to either of you that operate to increase the starting points I have selected.

[19] Mr Kingi, you have previous convictions for possession of cannabis and possession of utensils. Those convictions were entered in 2010, but resulted in fines of $100 each being imposed. Those convictions obviously demonstrate that you have had an involvement with cannabis for some time, but I do not consider that they ought to play any role in the sentencing process today. Cultivation of cannabis on this scale is a vastly different matter to being in possession of what must have been a relatively small amount of cannabis and utensils. For that reason, I do not apply any uplift to reflect your previous convictions.

[20] Mr Ingley, you are in a somewhat different position. In 2005, you pleaded guilty to a charge of cultivating cannabis. That, of course, is directly relevant to sentencing today because you are for sentence today on exactly the same charge.

You were sentenced on the previous occasion to 150 hours community work on the charge of cultivating cannabis, and on another charge of being in possession of cannabis. Clearly, that sentence was not a disincentive to you because you have been prepared to get yourself involved in a very large scale cannabis cultivation operation. That fact makes your current offending worse than it would otherwise have been. I propose to apply an uplift of three months to reflect your previous convictions.

Mitigating factors

[21] It is now necessary to have regard to mitigating factors personal to you both. [22] Mr Kingi, you appear for sentence at the age of 34 years. The pre-sentence

report makes somewhat depressing reading. It shows a person who has no motivation and who spends all day lolling around at home with no apparent purpose to his life. That seems to me to have all the hallmarks of someone who is deeply involved in the consumption of cannabis. Until you rid yourself of your involvement with cannabis, your life will be going nowhere.

[23] You are, however, entitled to credit for the guilty pleas that were entered at a very early stage. I propose to apply a factor of 25 per cent, which means a discount of one year, to reflect your guilty pleas.

[24] Mr Ingley, you appear for sentence at the age of 43 years. Your pre-sentence report is slightly more positive, although you accept that you offending was premeditated. You appear to lay the blame for your offending firmly at the door of your co-offenders. You say, however, that you are prepared to improve yourself, although previous community-based sentences have obviously done little to change your lifestyle. I record, also, that the pre-sentence report says that you expressed remorse for your actions.

[25] You now have a criminal record spanning nearly 30 years for a wide range of offending. As I have indicated, your last offending also related to cannabis, which indicates ongoing involvement with that drug. You, too, will have no hope of improving your life until you quit your association with this drug.

[26] I am prepared to allow a discount of ten months, or 25 per cent, to reflect your guilty pleas. I am also prepared to make a further small adjustment of three months to reflect your remorse.

Sentence

[27] Mr Kingi, on the charge of cultivating cannabis between 20 December 2010 and 20 January 2011, you are sentenced to three years imprisonment.

[28] On the charge of cultivating cannabis on 8 March 2012, you are convicted and discharged.

[29] Mr Ingley, on the single charge to which you have pleaded guilty you are sentenced to two years two months imprisonment.

_{[30] Stand down.}

Lang J

Solicitors:

Crown Solicitor, Hamilton

Counsel:

P Laybourn, Hamilton

S Green, Hamilton

---

[1] R v Terewi [1999] 3 NZLR 62.