R v Mains [2015] NZHC 2750 (5 November 2015)

Last Updated: 17 November 2015

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-025-2416 [2015] NZHC 2750

THE QUEEN

v

_{MAXWELL JOHNS MAINS}

Hearing:	5 November 2015
Appearances:	EG Higbee for the Crown CR Ruane for Mr Mains
Judgment:	5 November 2015

_{SENTENCING REMARKS OF MANDER J}

[1] Maxwell Mains you are for sentence this morning on two charges of possessing cannabis for the purpose of sale, and two charges of selling cannabis. In respect of three of those charges, you have been indicted together with your co-offender, Mr Brian McCarthy.

[2] The offending was detected as a result of a Police operation targeting the large scale cultivation of cannabis in Western Southland. Your offending involves the commercial distribution of cannabis which resulted from this cultivation in respect of which Mr McCarthy was a, if not, the, central figure. The four charges concern the

2012 growing season and each relates to your involvement in either the sale of cannabis or your joint possession of large amounts of cannabis for sale.

[3] There has been a contest between the Crown and yourself regarding the circumstances relating to two of the charges. However, as I have indicated to counsel

R v MAINS [2015] NZHC 2750 [5 November 2015]

this morning, given my approach to your involvement I do not consider those differences to be particularly material, nor do I consider them significant in setting the appropriate sentence for your offending.

[4] It is first necessary for me to set out the individual circumstances of the particular charges to which you have pleaded, although, it is the overall effect of those circumstances reflective of your involvement in this cannabis operation which, in my view, is most important to the approach to be taken in sentencing you.

[5] On 28 May 2012 when the police terminated its operation, they found very large quantities of cannabis that had been processed and stored on council owned scrub land adjacent to an associate’s address in Queenstown. An area on that land had been cleared for the purpose of drying and processing cannabis. There were a series of tunnel type tracks in the scrub that led to another area that had been used to manicure and package cannabis into one pound bags. In that area, police located two large plastic bins that contained equipment used to process and manicure cannabis, including electronic scales.

[6] The police located five large plastic bins that contained 16 one pound bags of cannabis, and 37 pounds of loose cannabis. In total, 53 pounds of dried premium grade cannabis head was located and recovered. The value of this cannabis can conservatively be estimated as worth some $170,000.00 if sold by the pound, and if broken down into retail amounts, considerably more.

[7] In jointly possessing this cannabis, either as a principal or as a party, you were in league with Mr Brian McCarthy who, over a number of years has been involved in the cultivation, harvesting and distribution of cannabis. He undoubtedly was the central figure in the wider cannabis operation which involved other cultivators.

[8] You have acknowledged that while you do not face any charges of cultivation, you assisted Mr McCarthy in the harvesting of some cannabis plots. It is submitted on your behalf that your involvement with Mr McCarthy was limited to only one growing season and that your role was largely one of an assistant to

Mr McCarthy, rather than as the principal offender and I substantially proceed on that basis.

[9] The contest between yourself and the Crown, as it relates to the possession of the 53 pounds of cannabis located on the council land, relates to a dispute of how much of this cannabis was personally yours. The Crown maintains that your ownership extended to between 15 and 20 pounds of cannabis, whereas you admit to some seven pounds as being your share.

[10] In my view, your culpability does not arise from the number of pounds that you could personally claim as your own to dispose of as you wished in comparison to Mr McCarthy’s share, but the fact that you were actively engaged in a cannabis processing and distribution operation of this size. The other charges to which you have pleaded guilty are instances of the manifestation of the operation’s objective which involved sales from the very large amount of cannabis packaged and stored on the council land with which you were involved.

[11] I accept that Mr McCarthy was the lead offender and the central player. However, I am also satisfied that you were significantly engaged with him in assisting in the large cannabis operation. You did so fully aware of the nature and size of the cultivation and distribution operation and you were well aware of the very large amounts of cannabis being processed and stored. The detail of the arrangements with Mr McCarthy in terms of your share and financial reward from the cannabis, is secondary to the assistance you provided to Mr McCarthy in respect of that part of the operation which involved the stripping, manicuring, packaging and distribution of the cannabis that had been cultivated. You are therefore required to be sentenced on the basis that you played an active part in the large commercial cannabis operation.

[12] One of the three other discrete charges to which you have pleaded guilty involved the sale of two ounces of cannabis on 30 April 2012. Conversations between yourself and Mr McCarthy were intercepted by the police. Of those conversations, one related to arrangements which you had made to sell a person two ounces of cannabis and of providing Mr McCarthy his share of that sale. Notably, the

relatively small nature of the transaction led the two of you to remark in the conversation that such a small amount, likely to be approximately $500, was “almost more trouble than it was worth”.

[13] A third charge relates to the sale of a pound of cannabis to a third person for

$3,000 and is indicative of the nature of transactions by which the cultivated cannabis was to be distributed. As with the previous transaction involving ounces, it is apparent that the cannabis was sourced from a large amount stored on the vacant council land.

[14] The fourth charge to which you have pleaded guilty concerns the attempted sale by Mr McCarthy of 10 pounds of cannabis which he transported to Dunedin. An examination of plastic bags in which the cannabis was packaged identified a fingerprint belonging to you. Again, it is accepted that the cannabis would have been sourced from the amounts packaged and stored on the council land.

[15] The person to whom this cannabis was to be sold was a Dunedin dealer, a Mr Frank Tainton, in respect of whom Mr McCarthy supplied cannabis. You deny directly dealing with the Dunedin dealer. However, it is apparent that Mr McCarthy’s dealings with this person were the subject of a number of conversations between you and Mr McCarthy and there is some evidence that you did in fact negotiate with this person directly, although I acknowledge that you dispute that. Whether you did so or not, is largely irrelevant. The fact remains that you were well aware of the nature and details of the distribution operation of which this charge is an example.

[16] Your involvement with Mr McCarthy and the cannabis stored on the council land was for the purpose of facilitating these types of large commercial transactions. As I have already observed, your proprietary interest in the particular number of pounds of cannabis processed and stored on the council property is not the significant factor.

[17] Mr Mains, you need to understand that the seriousness of your offending and your criminal culpability arises not just from the amounts of cannabis you accept as yours, or which you considered that you owned, or which you may have had

personally available to you to deal in, but your wider assistance to Mr McCarthy’s operation in respect of which it is apparent, at least at this distribution stage, you were engaged in assisting him with.

[18] Guidance as to the appropriate level of sentence to be imposed is obtained from the Court of Appeal judgment of R v Terewi.¹ The case identified two categories of commercial cannabis offending. Category 2 encompass small-scale cultivation of cannabis plants for a commercial purpose with the objective of deriving profit. The starting point for sentencing is generally two to four years, but where sales are infrequent and of limited extent, a lower starting point may be justified.

[19] Category 3 is described as the most serious class of such offending. It involves large scale commercial growing usually with a considerable degree of sophistication and organisation. The starting point would generally be four years or more.

[20] A person’s role in the commercial operation may also be an influential factor and the period over which the offending has continued is also relevant. While Terewi sets guidelines for cultivation of cannabis, it is well established that the case has application to other forms of cannabis offending and in particular, possession for

supply.²

[21] Mr Ruane, in his written submissions, has addressed the relative culpability of co-offenders. I accept your involvement is not at the same level of Mr McCarthy who, as I have commented, appears to have been the principal offender and was the central player in wider cannabis cultivation conspiracies involving other offenders over several growing seasons. A starting point of six years, however, was taken to mark his culpability.

[22] Importantly, as I have remarked, you were well aware of the nature and size

of Mr McCarthy’s cultivation activities, the product from which you involved yourself. It is therefore necessary to consider your participation against that

¹ _{R v Terewi [1989] 3 NZLR 62.}

² R v Leighs CA 360/02, 15 September 2003 at [11]; Bishop v R [2010] NZCA 66; R v Keefe CA

275/02, 28 November 2002 at [11]; R v Taui CA 494/05, 14 June 2006 at [6].

background, which clearly fell within Category 3 of Terewi if only from the sheer amount of cannabis with which you aided him to process, package and distribute.

[23] Reference was made in your counsel’s submissions, to the starting point of three years imprisonment imposed on Mr Brodie Anderson who assisted his father, Mr David Payne, in the harvesting of cannabis and who was sentenced on multiple charges of possession for supply and offering to sell cannabis. It is to be noted that he was under the influence of his father, and was described by this court as being a “foot soldier’ in his father’s cultivation operation. While he was found in possession of some three pounds of cannabis, the transactions in which he was involved were very much at a street or retail level. It is not contended on your behalf that your offending is less serious than Mr Anderson’s.

[24] Mr Tainton, the Dunedin dealer to whom I have already made reference, received a sentence based on a starting point of three years on a charge of possession of 13.8 pounds of cannabis. His involvement in the aborted sale in relation to the

10 pounds which Mr McCarthy transported, and in respect of which you too have pleaded guilty, resulted in an uplift of seven months and a final sentence of two years and nine months after an early guilty plea.

[25] As I have already observed, it is not possible to categorise your offending as otherwise than falling into Category 3 of Terewi. The operation with which you assisted was a large scale drug dealing enterprise. You and Mr McCarthy sat at the upper end of the dealing chain, and while one of the charges relates to the sale of ounces, the cannabis product was packaged for the purpose of sale in one pound lots. The total quantity of cannabis with which the charges are concerned is substantial, involving some 64 pounds, of which 53 pounds was seized from the council land. The categorisation of the offending as being within Category 3 is confirmed on a

_{review of relevant sentencing decisions.}³

³ R v Hawes HC Tauranga CRI-2009-069-1530, 20 November 2009; R v Cross HC Hamilton

CRI-2005-079-705, 6 October 2005; R v Delamore HC Auckland CRI-2010-004-1934,

5 October 2010; R v Kunac HC Rotorua CRI-2010-069-601, 5 July 2010 (cannabis worth approximately $100,000.00 – four year starting point); R v Merton HC Auckland, CRI-2009-044-002520, 7 May 20110 (cannabis worth $100,000.00 – four year starting point); R v Yates HC Whangarei CRI-2009-029-001305, 22 April 2010 (cannabis worth $100,000.00 – four year starting point); R v Young HC Whangarei CRI-2008-029-555, 4 February 2009

[26] Your involvement in this Category 3 offending, as Mr Ruane has submitted on your behalf, requires some recalibration to reflect the fact that your culpability encompasses a mixture of being a principal in respect of the cannabis which you effectively accept was yours to dispose of as you saw fit, and your role as a secondary party assisting Mr McCarthy’s with his cannabis operation, the greater proceeds from which were to be his. In making that adjustment, I consider the appropriate starting point is one of three years and nine months’ imprisonment.

[27] Turning to your personal circumstances. You are effectively before the Court as a first offender. Your explanation for becoming involved with Mr McCarthy was because of your friendship and knowledge of Mr McCarthy at a time of financial difficulty when you agreed to become involved with him. You are a qualified plumber and builder who has otherwise led a constructive life and are assessed as being at low risk of re-offending.

[28] The difficulty, Mr Mains, is that it is well established that while not an absolute rule, personal circumstances carry little weight as a mitigating feature in the context of serious drug offending. The Court of Appeal has stressed that deterrence of others is a paramount consideration, and it is a fundamental requirement that the sentence imposed should act as a deterrent to other persons wanting to engage or attempting to engage in similar activity. Unlike Mr Dickson, your involvement with Mr McCarthy in this significant commercial cannabis operation was not peripheral and you were clearly tempted by the profits that you could make from your active participation with him.

[29] Your counsel has urged at some length in his written submissions that you are entitled to a credit for your guilty pleas, and you have heard the discussion between counsel and the Bench this morning. Those pleas were formally advised in the week prior to the commencement of your trial. The argument made on your behalf is that the charges to which you ultimately pleaded guilty were comparable to those

_{proposed to the Crown at an earlier stage.}

(substantial cannabis cultivation worth up to $400,000.00 {although around half the plants would need to be discarded} – four year starting point); R v Waharehinga CA 438/02, 13 May

2003 (cannabis and cannabis oil with a value of around $375,000.00 – five year starting point).

[30] The previous indication of a willingness to plead guilty to a charge, or particular charges, in respect of which an offender is ultimately convicted, and it is not clear to me that you actually made a formal offer, although it has been clarified this morning that it was a conditional one, that such offers can provide a basis upon which credit for a guilty plea can be preserved. Whether that is the position, however, is often the subject of contest, of which this morning may be an example.

[31] The Court of Appeal has recommended that if an offender does wish to plead guilty to offences, that willingness should be communicated in writing to the Prosecutor with a copy to the Court, so as to avoid any dispute as to the defendant’s stance and when that stance was adopted.⁴

[32] Furthermore, as the Court of Appeal has observed, guilty pleas may often be the result of understandings reached between the parties on the charges faced, and the circumstances in which the guilty plea has been entered can potentially result in giving a double benefit. The willingness to accept a particular arrangement can itself be a concession which ought not entitle the defendant to the credit which the pleas might otherwise have attracted. Ultimately, it is a matter of evaluation for the

sentencing Judge.⁵

[33] Mr Mains, your pleas were entered very much at the eleventh hour. There was nothing to prevent you entering pleas to the charges to which you have now pleaded at a far earlier stage on the basis that certain facts were in dispute and that other charges were not conceded. You chose, however, to defend all charges. You joined in the challenge to the admissibility of the Crown’s evidence. Accordingly any credit arising from your formal notification of pleas in the week prior to the commencement of the trial must be extremely limited.

[34] On balance, I am prepared to extend a credit of two months to recognise personal mitigating factors. I am not able to extend any further credit, having regard to the level of your participation in what was a Category 3 commercial cannabis

_{enterprise. In respect of your guilty plea, I extend a credit of one month.}

⁴ _{R v Hessell [2009] NZCA 450; (2009) 24 CRNZ 612 at [43].}

⁵ Hessell v R [2010] NZSC 135; (2010) 24 CRNZ 966 at [62].

[35] It follows therefore, Mr Mains, that your final effective sentence is one of three years and six months imprisonment.

[36] There has been some discussion between counsel in their submissions as to the appropriate approach in terms of the imposition of cumulative or concurrent sentences. The structure of the effective sentence to be imposed is immaterial. As will be apparent from the way that I have approached your sentencing, it is the combination of charges which, when taken together, reflect your overall criminal culpability. Your joint possession of the cannabis located on the vacant council land is clearly the lead offence in respect of which the other three charges are directly related, representing as they do, instances of the way in which this large amount of harvested cannabis was to be traded.

[37] Mr Mains would now you please stand.

[38] Mr Mains, in relation to the charge of possessing and being a party to the possession of some 53 pounds of cannabis for the purpose of sale, in respect of which you are jointly charged with Mr McCarthy, you are sentenced to three years and six months imprisonment.

[39] In respect of the charge of selling two ounces of cannabis, jointly with

Mr McCarthy, you are sentenced to eight months imprisonment.

[40] In respect of the charge of selling one pound of cannabis, you are sentenced to 18 months imprisonment.

[41] In respect of the charge of possessing 10 pounds of cannabis, for the purpose of sale jointly with Mr McCarthy, you are sentenced to two years imprisonment.

[42] All sentences are to be served concurrently. [43] You may stand down.

Solicitors:

Preston Russell Law, Invercargill

CR Ruane, Barrister