Horopapera v R [2022] NZHC 646 (31 March 2022)

Last Updated: 7 April 2022

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2022-463-12 CRI-2022-463-11 CRI-2022-463-21 [2022] NZHC 646

BETWEEN	JOSEPH HOROPAPERA and DUANE SIMON and SHARN KELVIN MAHUIKA Appellants
AND	THE QUEEN Respondent

Hearing:	23 March 2022
Appearances:	S Mills for Appellant, J Horopapera M Dorset for Appellant, D Simon J Munro for Appellant, S J Mahuika
Judgment:	31 March 2022

JUDGMENT OF GORDON J

This judgment is delivered by me on 31 March 2022 at 4 pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors: Lance Lawson Limited, Rotorua

Tucker & Co, Auckland Crown Solicitor, Rotorua

Counsel: M Dorset

J Munro, Barrister, Auckland

HOROPAPERA and ORS v R [2022] NZHC 646

Introduction

• [1] The appellants, Joseph Horopapera, Duane Simon and Sharn Mahuika were sentenced by Judge G C Hollister-Jones in the Rotorua District Court on 3 February 2022 (Mr Simon and Mr Horopapera) and on 18 February 2022 (Mr Mahuika). All three appellants had previously sought a sentence indication. Mr Horopapera and Mr Mahuika accepted their sentence indications and pleaded guilty to the charges on which they were sentenced. Mr Simon did not accept his sentence indication but nevertheless pleaded guilty to the charges. Each now appeals his sentence.

• [2] Mr Horopapera was convicted of:

(a) Cultivating cannabis (x 3);1

(b) Attempting to cultivate cannabis;2

(c) Possession of equipment to cultivate cannabis (x 3);3 and

(d) Theft of electricity (x 3).4

• [3] Mr Simon was convicted of:

(a) Cultivating cannabis (x 5);5

(b) Attempting to cultivate cannabis;6

(c) Theft of electricity (x 5);7 and

¹ Misuse of Drugs Act 1975, s 9. Maximum penalty: seven years’ imprisonment.

² Misuse of Drugs Act, s 9 and Crimes Act 1961, s 311(1). Maximum penalty (s 9(2)): seven years’ imprisonment. Maximum penalty (s 311(1)): three years and six months’ imprisonment.

³ Misuse of Drugs Act, s 12A(2). Maximum penalty: five years’ imprisonment.

⁴ Crimes Act, ss 219 and 223(b). Maximum penalty: seven years’ imprisonment for two of the charges (theft over $1,000); and ss 219 and 223(d). Maximum penalty: three months’ imprisonment for one of the charges (theft under $500).

⁵ Misuse of Drugs Act, s 9. Maximum penalty: seven years’ imprisonment.

⁶ Misuse of Drugs Act, s 9(1) and Crimes Act, s 311(1). Maximum penalty: three years’ and six months’ imprisonment.

⁷ Crimes Act, ss 219 and 223(b). Maximum penalty: seven years’ imprisonment for four of the charges (theft over $1,000); and ss 219 and 223(d). Maximum penalty: three months’ imprisonment for one of the charges (theft under $500).

(d) Conspiring to deal with cannabis.8

• [4] Mr Mahuika was convicted of:

(a) Cultivating cannabis (x 4);9

(b) Possession of cannabis for sale (x 4);10 and

(c) Sale of cannabis (x 2).11

• [5] All the charges arise out of the same Police investigation. To that extent, the appeals are connected, but they were not consolidated. I set out the background in general terms with a summary for each appellant below. I will then consider each appeal in turn.

Factual background

• [6] The Police commenced Operation Morepork in January 2020. That investigation uncovered a syndicate involved in a large scale commercial indoor cannabis cultivation and distribution operation in the Bay of Plenty from 2018–2020.

• [7] The syndicate utilised large commercial buildings in industrial areas of Taupō and Rotorua to cultivate cannabis. It was in the process of setting up two premises in Hamilton at the time the Police terminated the operation. There were four operational cannabis cultivation sites, with a combined area of 2,450 m².

• [8] Data from cell phones connected to the syndicate and their associates was obtained and analysed by the Police. The High Court granted the Police multiple warrants, authorising Police to intercept the private communications of the syndicate and monitor their movements by tracking their cell phones.

⁸ Misuse of Drugs Act, s 6. Maximum penalty: seven years’ imprisonment.

⁹ Section 9. Maximum penalty: seven years’ imprisonment.

¹⁰ Section 6(1)(f) and s 6(2)(c). Maximum penalty: eight years’ imprisonment.

¹¹ Section 6(1)(e) and s 6(2). Maximum penalty: eight years’ imprisonment.

• [9] The Police were also granted warrants to install fixed cameras at three commercial properties that the syndicate used, to monitor their movements in and out of the addresses. Another warrant authorised the Police to make covert entry into one of the large commercial buildings in Taupō, which revealed a large cannabis crop that was near harvesting.

• [10] The approximate payments received from the plants being grown amounted to

$4 million per cycle.

• [11] The appellants were arrested on 19 August 2020.

Mr Horopapera

• [12] The summary of facts describes Mr Horopapera, along with Macarthur Atkins, Gareth Tabener, Clayton Grant and Tony Herbert, as principal defendants and all as the heads of the group.

• [13] The principal defendants’ purpose was to accumulate money, assets and power through the cultivation of cannabis at a commercial scale. Communications the Police intercepted revealed the defendants were selling pounds of cannabis for $5,000–

$6,000 depending on the number of pounds purchased.

• [14] Three companies were set up commencing with the incorporation of Bay of Plenty Automotive Limited in February 2019. Mr Herbert was the sole director of that company. The next company incorporated was Central Bay Firewood Limited on 3 May 2019. Messrs Atkins, Grand and Tabener were the directors of that company. The third company was Royal Vegas Escorts Limited, which was incorporated on 1 November 2019. Mr Horopapera was the sole director of that company. Each of the companies had legitimate business fronts. However, they were also used as business vehicles for the cultivation enterprise.12

¹² R v Joseph Horopapara [2022] NZDC 1725 at [4].

• [15] The Judge set out the background facts in some detail in his sentence indication for Mr Horopapera (and Messrs Tabener, Grant and Herbert). They are reproduced below:13
  • [6] The commencement of large deposits of cash began in May 2019. Between May 2019 and July 2020, over $382,000 was deposited into Bay of Plenty Automotive in cash. Between June 2019 and July 2020, $213,000 was deposited into the Central Bay Firewood account in cash.

• [7] The Crown’s position is that the amount of cash is much more than would have been generated by the legitimate business enterprises undertaken by either Bay of Plenty Automotive or Central Bay Firewood.

• [8] Having set up these business structures, a business model was adopted that involved the leasing of commercial premises for the cultivation of cannabis. These commercial premises were in industrial areas and required the negotiation of agreements for lease with persons having to guarantee the lease. The style or focus of the business was the commercial cultivation of cannabis; from what I can see, on an excellence model.

• [9] The overall operation started with one premise, that was 64 View Road, Rotorua and progressively other sites were added. This progressive expansion of the business involved negotiating the lease of other premises and setting them up as cannabis cultivation sites.

• [10] On 25 May 2018, the principal defendants, that is you four, obtained the lease of 64 View Road in Rotorua (“View Road”). The late Mr Atkins was named as the tenant and guarantor. That building had an annual rent of

$24,800 plus GST and covered approximately 300 square metres. By the latter part of 2018, the principal defendants were cultivating cannabis inside that building. When the Taupo operation started, View Road was used as a nursery to clone plants. When the police operation was terminated on 19 August 2020, 12 grow tents containing 1,187 cannabis plants were found at View Road. There were a variety of plants found there including plants with developing cannabis heads, mother plants for the purposes of cuttings, and young plants.

• [11] The search of View Road revealed a sophisticated setup that was mirrored at each of the other sites. This setup involved dedicated grow tents each of which had a lighting system, a nutrient feeding system and a ventilation system which included a carbon filter that filtered the air being expelled. There were large water tanks set up between the grow tents and the lights fed into ballast boxes on shelving units outside the grow tents, which in turn fed to large light management units. Those light management units then drew from the main power supply that went into the building. The power being drawn was diverted from the electrical meter for the building. The equipment at View Road was valued at $30,000 and the electricity drawn was

25.8 kw.

• [12] The next operation to be established was 579 Rakaunui Road in Taupo. Each of you were involved in obtaining the lease of that on 14 March 2019. The tenant for that lease was Central Bay Firewood with Messrs Atkins

¹³ R v Horopapara DC Rotorua CRI-2020-063-002630, 16 April 2021.

and Tabener as the guarantors. The annual rent for that property was $55,000 plus GST. It had a building area of 950 m² and a yard area of nearly 11,000 m². The account holder for the electricity to that address was Mr Tabener. Each of the principal defendants were involved in the setup of that building as I have just described. The initial crops in that building were started in 2019 and were cultivated and harvested by each of you.

• [13] On 2 December 2019, a second lease in Taupo was obtained, this time at 910 Rakaunui Road. Mr Ruffell was a guarantor of the lease. The annual rent of the property was $50,000 plus GST. That property had an area of 1,270 m², together with large roller door access. Mr Ruffell was also the account holder for the utility accounts at that property.

• [14] Between 1 April and 19 August 2019, there were several cycles of cannabis cultivated at these two addresses in Taupo, with at least two cycles having occurred at 910 Rakaunui Road. This was a labour-intensive process with other defendants being drafted in to assist.

• [15] The police undertook a covert search of 910 Rakaunui Road on 16 June 2020. They found 450-500 cannabis plants being grown inside 14 grow tents. All of the cannabis plants were laden with quality cannabis head nearing harvesting. There was the fitout that I have earlier described in relation to View Road.

• [16] Another aspect of the cultivation was the use of cargo nets which stretched over the length and width of the grow tent. The cargo nets were used to support the weight of the cannabis branches as the flowering head formed.

• [17] It is conservatively estimated that the plants inside the 14 tents would have yielded three ounces of cannabis head material per plant, which equates to 84-93 pounds of cannabis per harvest.

• [18] On 17 June 2020, each of you were involved in harvesting at 910 Rakaunuui [sic] Road and after the harvest, you were involved in dismantling it. The equipment at that site was moved to the next site.

• [19] At the time of termination, 910 Rakaunui Road was predominantly empty whereas 579 Rakaunui Road was still operating and was in the process of being harvested. A mechanical trimmer valued at over $20,000 was found at 579 Rakaunui Road. There were 34 grow tents found there at termination. The tents and lighting systems were valued in excess of $70,000. There were 1,021 plants there at termination with 213 plants harvested. The electricity being used at 579 Rakaunui Road on 19 August was nearly 46 kwh.

• [20] The next operation to be formed was 120 Riri Street, Rotorua (“Riri Street”). That commenced in July 2020 with an employee of Bay of Plenty Automotive being the tenant and guarantor. The annual rent for that property was $60,000 plus GST and it had a square meterage of 900 m².

• [21] On 6 July 2020, the equipment from 910 Rakaunui Road was moved to Riri Street using a number of vehicles. The police began surveillance at this property from 27 July 2020. At the time of termination, the police found 21 grow tents at Riri Street with a total of 1,527 plants; 1020 of those plants were in the flowering stage, beginning to produce cannabis head. The estimated value of the equipment at that address was $60,000. The total

electricity load there was 43.6 kwh, however only 3.02 kwh was being measured through the meter.

• [22] The operation expanded to Hamilton in May 2020 with the lease of 4/550 Te Rapa Road being obtained. Electricity was supplied to that address from July 2020. At the time of termination, it was in the early stages of setup.

• [23] On the 27 July 2020, the principal defendants obtained the lease of 11 Brandon Street in Hamilton with Mr Mason as the guarantor. The annual rent for that property was $57,000 plus GST. Electricity was supplied there from 5 August 2020 and a cannabis cultivation operation was being set up there. At the time of termination, one grow tent was in operation, there were 14 newly assembled grow tents, there were 154 plants found in the vegetative state. The value at the equipment was estimated in excess of $12,000.

• [24] In summary, at the time of the conclusion of this police operation;

• There were four operational cannabis cultivation sites.

• The total square metres involved in these four sites was 2,450 m².

• There were 81 grow tents in operation.

• The approximate value of the lighting, ventilation, water reticulation and related equipment was $200,000, including the $20,000 industrial harvester I have referred to.

• There were 3,889 plants growing and 213 plants had been harvested; that was a total of 4,102 plants that were growing or had been grown. The overall quality of the plants that I saw were consistent in quality and of high quality.

• One site had been decommissioned and one site was being set up.

• There were rental outgoings of $296,000 plus GST per annum or

$28,635 per month including GST; substantial by any measure.

• The potential cashflow of the plants being grown was $4 million per cycle, however I note that is without any allowance for variation that usually occurs as part of any horticultural enterprise. A number of cycles had already been completed, particularly at the Hamilton sites.

• [25] In my assessment, this was the cultivation of cannabis on an industrial scale.

...

Mr Simon

• [16] Mr Simon is an electrician and was employed by Unison Networks, from 2010 to August 2020, when he was dismissed. Unison owns and operates the electricity network that distributes electricity to Hawkes Bay, Taupō and Rotorua. Mr Simon

worked his way up through the company to the position of line mechanic foreperson. In that role Mr Simon had access to a computer, which provided him with information such as where the power is fed for individual properties.

• [17] Between 9 June and 19 August 2020, there were 130 phone calls between Mr Atkins and Mr Simon that were intercepted. While a large number of these calls were either unanswered or directed to voicemail, there were 57 calls between Mr Atkins and Mr Simon that directly related to Mr Simon’s part in the theft of electricity. A schedule of those calls and the summary of their content is annexed to the (separate) agreed summary of facts for Mr Simon.

• [18] The phone calls reveal conversations between Mr Atkins and Mr Simon arranging for Mr Simon to modify the electrical wiring at the addresses of 120 Riri Street Rotorua, 11 Bandon Street, Hamilton and 4/550 Te Rapa Road, Hamilton for the purpose of stealing electricity.

• [19] The agreed summary then states that Mr Simon had already modified the wiring at the premises of 579 Rakaunui Road, Taupō, 910 Rakaunui Road, Taupō and 64 View Road, Rotorua for the purpose of stealing electricity and to make it safe. There is a dispute between the Crown and Mr Simon as to how this paragraph should be interpreted given that the evidential basis for the facts in the summary of facts is the intercepted phone calls and they do not commence until 9 June 2020. I will discuss this issue when I address the appeal for Mr Simon.

• [20] What is not disputed is that Mr Simon used his expert electrical knowledge to assist the principal defendants to cultivate cannabis.

• [21] Using “live line” techniques, which are generally considered to be specific to those engaged in the electricity distribution industry, Mr Simon tapped into the electricity supply lines at the various commercial buildings being used for cultivating cannabis. He then installed new cables to deliver electricity into the buildings that bypassed the electricity meters.
• [22] The summary of facts records that this was primarily done to save money but also to avoid suspicion from the respective electricity providers due to the high electrical loads and hefty electricity accounts which would have been generated from the electrical equipment required during the cannabis cultivation process.

• [23] While Mr Simon was not involved in the setup of the internal infrastructure of the cultivations or the monitoring of the plants themselves, the summary of facts records that his role of connecting the mains was “defined, critical, and on-going”.

• [24] Mr Simon was promised at least $25,000 cash to modify the wiring in the premises of 579 Rakaunui Road, Taupō, 910 Rakaunui Road, Taupō, 64 View Road, Rotorua, 120 Levy Street, Rotorua, 11 Bandon Street, Hamilton and 4/550 Te Rapa Road so as to bypass the electricity meter enabling the defendants to steal electricity. The summary of facts records that there is no evidence to confirm if the money was paid. Mr Simon’s position is that it was not paid.

Mr Mahuika

• [25] The summary of facts describes Mr Mahuika and the remaining defendants as workers who assisted in the cannabis and cultivation process at various levels and locations. Each was paid in cash by the principal defendants.

• [26] Mr Mahuika’s fingerprints were found at three of the cannabis cultivation sites. He was also captured on surveillance at Taupō and Rotorua. He was involved in harvesting at one of the sites in Taupō and removing rubbish from another site. He assisted in moving equipment between two of the sites and had keys to five sites.

• [27] Further, when the Police executed a search warrant at Mr Mahuika’s home on 19 August 2020 they found storage containers with 729 cannabis clones. They also found 20 grams of cannabis head in Mr Mahuika’s garage and 34 cannabis baggies in the kitchen. There is evidence from text message data of Mr Mahuika selling pounds of cannabis and of his being involved in selling and/or having cannabis for sale, totalling six pounds.

Approach on appeal

• [28] I will now move to a consideration of each of the individual appeals, but first I mention the approach on appeal.

• [29] All three appellants are entitled to an appeal against sentence under s 244 of the Criminal Procedure Act 2011 (CPA). This Court must allow the appeal if satisfied that there is an error in the sentence imposed on conviction and a different sentence should be imposed.14 The sentence below must be shown to be manifestly excessive or wrong in principle.15

Mr Horopapera

District Court decision

• [30] In his sentencing indication decision, the Judge recorded that all counsel (that is counsel for the four principal defendants, including Mr Horopapera) accepted that the offending fell within band 3 of R v Terewi.16 As the Judge stated, band 3 commences with a starting point of four years’ imprisonment or more.17

• [31] The Judge said he had reviewed high-end category 3 sentencing decisions over the preceding 22 years.18 Of those cases the Judge considered that R v Daley was the most comparable but that the overall scale of the offending in this case was greater than R v Daley.19

• [32] The Judge adopted a starting point of seven years’ imprisonment for the representative charges of cultivation, possession of equipment and attempted cultivation for each of the four defendants. He could see no difference in culpability of those four defendants. He set out his reasons as follows:20

¹⁴ Criminal Procedure Act 2011, s 250.

¹⁵ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482, at [30]–[35].

¹⁶ R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA).

¹⁷ At [33].

¹⁸ R v Nuttall [2013] NZHC 544; R v Wilson CA273/04, 13 December 2004; Borg v R [2015] NZCA 289; Taylor v R [2013] NZCA 417; and R v Daley [1999] NZCA 297; (1999) 17 CRNZ 388 (CA).

¹⁹ R v Horopapara, above n 13, at [37].

²⁰ At [47].

(a) the scale of the operation; four sites, 2,500 m², 81 grow tents, $200,000 in equipment;

(b) the degree of sophistication that involved fitouts across all sites that were extremely well done and the sort of setup seen in a highly sophisticated indoor horticultural cultivation operation;

(c) the offending was highly premeditated. It was difficult to conceive of greater premeditation;

(d) the sole motive was profit; and

(e) lastly, the yield at realistically $3–4 million per cycle.21

• [33] The Judge considered an uplift for the theft of electricity was warranted and considered the appropriate uplift to be six months’ imprisonment. The overall starting point indicated was seven years and six months’ imprisonment for each of the defendants before him. The Judge also indicated a full allowance for a guilty plea of 25 per cent.

• [34] The sentencing decision that followed the acceptance of the sentence indication by Mr Horopapera was focused on personal mitigating factors that were raised on his behalf.

• [35] When referring to Mr Horopapera’s prior convictions, the Judge noted that none of the five convictions from 2011–2015 was drug-related. Therefore, Mr Horopapera did not have any personal aggravating factors.

• [36] The Judge then turned to Mr Horopapera’s personal mitigating factors. He mentioned receiving: a s 27 report by 3 Degrees Limited of 9 August 2021; a psychological report by Dr Lascelles of 16 July 2021; a certificate of completion of the Ko Te Pito programme and a programme with Manaaki Ora Trust; a letter from Mr Horopapera of 26 April 2021; references from Mr Horopapera’s partner, friends

²¹ R v Horopapara, above n 13, at [47].

and his partner’s midwife; a pre-sentence report of 9 August 2021; and a letter of support from Hunia Rogers, the pae tuarā of the Te Arawa Whānau Ora course Mr Horopapera completed.

• [37] Mr Mills, for Mr Horopapera, submitted in the District Court that a discount of 45 per cent for Mr Horopapera’s personal mitigating factors was warranted, due to: the link between Mr Horopapera’s background (particularly his substance abuse issues) and the offending; the nexus between Mr Horopapera’s traumatic childhood and desire to provide for his family, which led to Mr Horopapera’s involvement in the offending; Mr Horopapera was highly motivated to change and had shown true remorse; and Mr Horopapera could rehabilitate and contribute to the community.

• [38] The Judge adopted a five per cent discount for the “limited connection” between Mr Horopapera’s background and the offending, a five per cent discount for rehabilitation efforts, a five per cent discount for prospects of rehabilitation and no separate discount for remorse. The total of the discounts was 40 per cent (including the 25 per cent for guilty pleas indicated in the sentencing indication decision).

• [39] The Judge sentenced Mr Horopapera to:

(a) four years and six months’ imprisonment on the cultivating charges;

(b) two years and six months’ imprisonment on the attempted cultivation charge;

(c) one year’s imprisonment on the charges of possession of equipment and theft of electricity over $1,000; and

(d) three months’ imprisonment for theft of electricity under $500.

Submissions for Mr Horopapera

• [40] Mr Mills says, in summary, that the end sentence was manifestly excessive due to:

(a) the overall starting point of seven and a half years’ imprisonment being too high;

(b) insufficient credit for mitigating factors by virtue of the refusal to grant a discount for remorse; and

(c) the discount for the matters raised in the cultural report and psychological report being too low.

• [41] Mr Mills submits that the overall starting point for Mr Horopapera’s offending should be in the range of six years and six months’ imprisonment to no more than seven years’ imprisonment. He says this starting point could be achieved by adopting a starting point of under seven years for all the offending, including theft of electricity, or by adopting the maximum penalty of seven years’ imprisonment and adopting a concurrent sentence for the theft of electricity.

• [42] Mr Mills agrees that R v Daley22 is the most comparable case. However, he says that R v Daley involved the full construction of a specially designed hydroponic house as opposed to renting the premises, which was the case in this operation.

• [43] He also says that the level of sophistication and group organisation in R v Daley was at least on par, if not more significant than in the current case. In this case there were none of the often associated anti-social behaviours of drug cultivation and sale, such as a sophisticated security system, associated violence or firearm ownership. Mr Mills refers to the Judge appearing to accept that the companies involved in the operation were not set up for the sole purpose of an illegal enterprise.

• [44] Further, Mr Mills says if this Court determines the maximum penalty should apply to the cultivation offending, R v Daley is instructive as to the point that no uplift for the theft of electricity should have been applied. He refers to the Court of Appeal’s comments that:23

²² R v Daley above n 18.

²³ R v Daley, above n 18, at [21].

[21] ... In some cultivation cases, it will be appropriate that accompanying possession for supply and selling charges attract concurrent sentences. However, in any given case the sentencing Judge must ultimately assess whether the totality of the criminality involved in the offending is captured by an appropriate lead sentence for cultivation, or whether cumulative sentences are required. Where the sale activity truly constitutes a separate and additional dimension to the offending, then a cumulative term will be necessary.

• [45] Mr Mills submits that the theft of electricity does not truly constitute a separate and additional dimension to the offending. The theft of electricity was not committed by Mr Horopapera. He says, as the Judge noted, that the theft of electricity was integral to the business model. Mr Mills submits, therefore, that there is no justification in uplifting the sentence for the theft of electricity charges.

• [46] Mr Mills acknowledges the decision of Mander J in Herbert v R24 in which Mr Herbert advanced the same argument now made for Mr Horopapera, namely that the Judge had already factored in the theft of electricity in reaching a starting point for the cannabis charges. Mander J did not accept that submission and upheld the overall starting point of seven years and six months’ imprisonment.

• [47] Mr Mills submits this Court can and should adopt a different position to Mander J in Herbert v R. In making that argument he does not suggest that the Court should differentiate between the criminality of Mr Herbert and Mr Horopapera.

• [48] Mr Mills acknowledges that s 84(1) of the Sentencing Act 2002 (the Act) would allow an uplift for a different kind of offending. However, he submits s 84(1) does not allow the Court to double count that factor.

• [49] As to factors personal to Mr Horopapera, Mr Mills submits that the discount for mitigating factors should have been 45 per cent.

• [50] Mr Mills submits the Judge erred in declining to provide a discount for remorse and limiting the discount for the contents of the s 27 report and psychological report to five per cent.

²⁴ Herbert v R [2022] NZHC 210.

• [51] Mr Mills emphasises that Mr Horopapera gave a statement to Police and immediately accepted his offending. He submits that is indicative of remorse. Also, Mr Horopapera’s remorse is illustrated in the PAC report and other reports. Mr Mills says that Mr Horopapera’s discount should not be restricted because he sees cannabis as less damaging than other substances. He says this opinion is held by many and is reflected in New Zealand’s referendum on legalising cannabis. He says this opinion does not change the fact that remorse is apparent.

• [52] Regarding the psychological report and the cultural report, Mr Mills says he acknowledges in cases involving serious criminal offending that personal factors are often given less weight. He submits that a discount of 10 per cent could be given without offending against this rule. He refers to Zhang v R25, Waho v R26 and Kreegher v R.27 In respect of Waho v R, the Court of Appeal increased a 10 per cent discount for matters raised in the cultural report to 15 per cent on appeal.28 Kreegher v R involved an appeal against the discount for matters raised in the cultural report. The Court of Appeal substituted a 10 per cent discount due to the fact Mr Kreegher lived a life tarnished by social deprivation and poverty, grew up with an abusive father and stepmother and was a victim of sexual abuse.29

• [53] Mr Mills says that the cultural report for Mr Horopapera identifies emotional and physical abuse that he was subject to during his childhood, including his disconnect from te ao Māori, material deprivation and neglect. He submits there is a nexus between Mr Horopapera’s traumatic childhood and disconnection from his culture and the current offending. He says the abuse Mr Horopapera experienced was a motivator to ensure he provided for his family in a way that he was not provided for as a child.

• [54] The psychological report for Mr Horopapera reiterates that Mr Horopapera had a traumatic childhood. It mentions his early history of self-harm and the fact he began using cannabis at 12 years’ old, and continued to use cannabis approximately three

²⁵ Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

²⁶ Waho v R [2020] NZCA 526.

²⁷ Kreegher v R [2021] NZCA 22.

²⁸ Waho v R [2020] NZCA 526 at [33].

²⁹ Kreegher v R, above n 27, at [47].

times a week. Dr Lascelles’ opinion is that Mr Horopapera meets the criteria for Post- Traumatic Stress Disorder, Alcohol Use Disorder and Stimulant Use Disorder.

• [55] Mr Mills submits there is link between Mr Horopapera’s offending and his substance abuse issues. He says although Mr Horopapera’s primary motivation was commercial benefit, that motivation cannot be separated from the cost of his ongoing drug and alcohol use.

• [56] Mr Mills submits that in combination these factors justify a discount of 10 per cent. He says if Mr Horopapera had not received a 10 per cent discount for prospects of rehabilitation and rehabilitation efforts, he would have argued for a higher discount on s 27 matters.

Respondent submissions – Mr Horopapera

• [57] Mr Evans, for the Crown, submits that the starting point of seven years’ imprisonment for Mr Horopapera was warranted, particularly in light of the fact that Mander J upheld the same starting point and the uplift of six months for the theft of electricity for Mr Herbert on appeal.

• [58] In respect of the cultural report, Mr Evans submits the Judge was correct in finding there was no demonstrated nexus between the offending and Mr Horopapera’s deprivation. The lack of necessities during his childhood and other hardships were not causes of this offending. Mr Evans submits it was open to the Judge to not give any discount for the matters in the cultural report. He says the five per cent discount was generous.

• [59] Mr Evans refers to the Judge’s statement about remorse:30

[17] In terms of remorse, I have read your letter. I have considered the comments in the s 27 report, Dr Lascelles’ report and the pre-sentence report. Each of these reports discuss remorse. The theme of those reports is that you are very remorseful about the consequences of your offending and this sentencing on your whānau. The pre-sentence report says that you had minimal insight into the effect this offending has had on the community. Whilst you did show some insight into the effect of the offending on your co- defendants, and Dr Lascelles refers to you feeling bad about the theft of

³⁰ R v Joseph Horopapara, above n 12, at [17].

electricity, there is no evident remorse about or insight into the social impact of your offending and as a result, I have concluded there will be no separate discount for remorse.

• [60] He submits that assessment by the Judge was correct.

• [61] Mr Evans submits that the fact Mr Horopapera compared his offending involving illicit substances to legal substances shows he has no remorse in regard to his offending. He further states that the remorse Mr Horopapera has shown relates only to insight of how being charged and convicted has affected him and his family. Mr Evans submits Mr Horopapera is not aware of the effect of his actions on the community.

Mr Horopapera – Discussion

• [62] The fact that Mr Horopapera accepted the sentence indication does not affect his right to appeal against sentence.31

• [63] I note that in Herbert v R,32 counsel for Mr Herbert argued that no more than six and a half years’ imprisonment should have been applied to Mr Herbert’s offending. Given Mr Mills’ concession that a starting point of seven years’ imprisonment was available to the Judge, it is not necessary to embark on a detailed discussion of the decision under appeal on this issue nor any comparison with R v Daley. I simply record that I agree with the Judge’s reasoning33 and the decision of Mander J in Herbert v R upholding the Judge’s seven year starting point for the cannabis offending.34

• [64] The real issue for Mr Horopapera is his argument that the theft of electricity was included in the seven year starting point and by adding six months for the theft of electricity the Judge was double counting. To support that submission Mr Mills first says one of the Judge’s reasons for adopting the seven year starting point for the cannabis charges was the “degree of sophistication that involved fit-outs across all

³¹ Criminal Procedure Act 2012, s 245. See also Elisaia v R [2015] NZCA 516 at [26] and more generally the discussion in Nepia v R [2015] NZHC 1226 at [19]–[28].

³² Herbert v R, above n 24.

³³ R v Horopapara, above n 13, at [37]–[47].

³⁴ Herbert v R, above n 24, at [11].

sites that were extremely well done and the sort of setup you would see in a highly sophisticated indoor horticultural cultivation operation.”35

• [65] Second, Mr Mills refers to the following paragraph in the sentence indication:

[50] All defendants oppose the uplift sought by the Crown of one year’s imprisonment for the theft of electricity. The central submission of counsel is that the diversion of electricity has already been considered as part of the overall sophistication of the setup. I accept that the diversion of electricity was integral to the business model and that has already been considered as part of the sophistication of the enterprise. However, the amount of electricity stolen was substantial and that offending is separate to the cultivation of cannabis. I consider that an uplift is warranted but not at the level of one year.

• [66] I do not consider those paragraphs demonstrate that the Judge double counted the theft of electricity when he added a six month uplift. I can do no better than refer to the judgment of Mander J in Herbert v R. Mander J accepted that ordinarily the theft of electricity in the context of cannabis cultivation is treated as an aggravating factor going to the sophistication of the offending.36 However, as Mander J further noted, because the theft of electricity represented dishonest conduct and involved very substantial amounts of electricity the sentencing Judge considered a six month uplift was warranted. Mander J then set out his reasons for upholding the six month uplift as follows:37

[17] Where electricity is stolen for the purpose of facilitating the cultivation of cannabis, it can warrant an increased sentence, representing, as it does, an aggravating feature of the cultivation. This aspect of the cultivation, while not recognised by the Judge, does not appear to have been factored into his analysis of its commercial or “industrial” nature. The Judge chose instead to mark that element of the offending with a separate six month uplift on top of the seven year starting point. Having regard to the amount of electricity that must have been diverted, I consider the Judge was entitled to do so by imposing a separate uplift. Ordinarily, that may involve an increase of some two to three months. However, having regard to the size and nature of the cultivation and the amount of electricity that must have been diverted, I do not consider, in the circumstances of this case, that six months was excessive. Nor, considering the way the Judge structured his sentencing, do I consider its imposition involved double-counting or infringed the totality principle.

(footnote omitted)

³⁵ R v Horopapara, above n 13, at [47(b)].

³⁶ Herbert v R, above n 24, at [16].

³⁷ Herbert v R, above n 24, at [17].

• [67] I respectfully agree with Mander J and adopt the above reasoning. There was no double counting. The first appeal ground for Mr Horopapera fails.

• [68] The second appeal ground is that the Judge should have given Mr Horopapera a discount for remorse. The Judge’s discussion of remorse is as follows:38

[17] In terms of remorse, I have read your letter. I have considered the comments in the s 27 report, Dr Lascelles’ report and the pre-sentence report. Each of these reports discuss remorse. The theme of those reports it that you are very remorseful about the consequences of your offending and this sentencing on your whānau. The pre-sentence report says that you had minimal insight into the effect this offending has had on the community. Whilst you did show some insight into the effect of the offending on your co- defendants, and Dr Lascelles refers to you feeling bad about the theft of electricity, there is no evident remorse about or insight into the social impact of your offending and as a result, I have concluded there will be no separate discount for remorse.

• [69] This is an accurate assessment. I have read all the reports and other material filed in the District Court and there is nothing to show that Mr Horopapera has considered the implications of the offending other than how it affects him and his whānau. Further, Mr Horopapera comparing his offending, which involved illicit substances, to legal substances (saying cannabis is less damaging than other substances) shows that he has no remorse regarding the offending. I agree with the Crown’s submission that while Mr Horopapera is entitled to his opinion, a failure to recognise and acknowledge the effects of his offending on the community shows he is without remorse in a larger sense. In short, the Judge was correct that no discount should be given for remorse.

• [70] Mr Horopapera’s final appeal ground concerns the discount given for s 27 background factors. The Judge gave a five per cent discount. Mr Horopapera says 10 per cent was warranted. Mr Horopapera refers to the s 27 report where the writer says that financial security is incredibly important for a young man like Mr Horopapera who has come from a background of serious material deprivation that makes him more vulnerable to offend than those who have come from material security. The writer says that Mr Horopapera’s involvement in the offending was financially motivated as he wanted to guard against his children experiencing what he had experienced as a

³⁸ R v Joseph Horopapara, above n 12,at [17].

child. The Judge acknowledged that part of the report saying that Mr Horopapera’s childhood experience of not having enough was one of the contributors to Mr Horopapera’s decision to involve himself in the commercial cultivation of cannabis.39

[14] I turn to discuss what discount should be given for background matters. I accept that you experienced material poverty during your childhood and that has driven you to ensure your children do not experience the same. That childhood experience of not having enough has been one of the contributors to your decision to involve yourself in the commercial cultivation of cannabis.

• [71] However, there is also the report of psychologist Dr Lascelles, who quotes Mr Horopapera as saying that he had been “sick of being in a financial rut” and saw no harm to others in providing cannabis. The Judge concluded that the offending was commercially motivated and the sole motivator for the operation was profit. He concluded that there was a limited connection between Mr Horopapera’s background and the offending and the appropriate discount for background matters was five per cent.40

• [72] I do not consider the Judge erred in his assessment. There is a tenable linkage to Mr Horopapera’s background, which the Judge recognised. Mr Horopapera’s motivation may well have its origin in his upbringing where he was financially insecure at times. But a five per cent discount was sufficient recognition. This ground of appeal fails.

• [73] The remaining discounts are not challenged: 25 per cent for guilty plea; five per cent for efforts at rehabilitation; and five per cent for prospects of further rehabilitation. The total 40 per cent discount remains in place.

Result

• [74] Mr Horopapera’s appeal is dismissed.

³⁹ R v Joseph Horopapara, above n 12, at [14].

⁴⁰ At [16].

Mr Simon

District Court decision

• [75] In the District Court, the Crown submitted that the starting point for Mr Simon’s offending should be six years’ imprisonment41, because he performed a critical role in the cultivation operation and the size and complexity of the operation required someone with his skillset to divert the electricity and ensure supply.42

• [76] Ms Dorset, for Mr Simon, accepted that Mr Simon’s involvement in the operation fell within the higher end of category 3 of R v Terewi. She submitted the starting point should be between four to five years’ imprisonment but at the lower end of that range.

• [77] Ms Dorset submitted Mr Simon should receive the following discounts:43 guilty plea discount of 25 per cent; a discount for remorse; a discount for personal background; and a discount for prospects of rehabilitation.

• [78] The Judge considered that Mr Simon’s specialist assistance was “integral to the success of this cannabis operation”.44 He assessed Mr Simon’s involvement as falling within category 3 of Terewi, and that his culpability was approximately 75 per cent of the principal defendants’ culpability.45

• [79] The Judge adopted a starting point of five years and six months’ imprisonment for the cultivation of cannabis and theft of electricity charges. He uplifted the starting point by three months for conspiring to sell cannabis resulting in an overall starting point of five years and nine months’ imprisonment.

• [80] Regarding personal mitigating factors, the Judge gave Mr Simon a 25 per cent discount for his guilty plea. The Judge did not consider that there was a connection between Mr Simon’s early years and the offending.46 He did not give a discount for

⁴¹ R v Duane Arapeta Simon DC Rotorua CRI-2020-063-002630 at [10].

⁴² R v Simon [2022] NZDC 1768 at [8].

⁴³ At [10].

⁴⁴ At [16].

⁴⁵ At [17].

⁴⁶ At [21].

this factor, but gave a five per cent discount for his remorse and rehabilitation efforts. The total discount was thus 30 per cent.

• [81] The end sentence imposed on Mr Simon was:

(a) four years’ imprisonment on the charges of cultivating cannabis and theft of electricity (over $1,000);

(b) two years’ imprisonment on the charge of attempting to cultivate cannabis;

(c) three months’ imprisonment for the charge of theft of electricity (under

$500); and

(d) six months’ imprisonment for conspiring to sell cannabis.

Submissions for Mr Simon

• [82] In summary, Ms Dorset submits that sentence imposed was manifestly excessive on the following grounds:

(a) the starting point of five years and nine months’ imprisonment was too high. The Judge erred in assessing Mr Simon’s role in the offending at approximately 75 percent of the culpability of the principal offenders;

(b) the Judge erred in fact. Ms Dorset submits that the Judge misinterpreted the summary of facts leading the Judge to conclude that Mr Simon had been involved in the offending at an earlier point. This mistake led the Judge to conclude that Mr Simon had a more significant role in the offending; and

(c) the discount for remorse and rehabilitation efforts of five per cent were insufficient and there should have been a discount for matters raised in the s 27 report.

• [83] In her oral submissions Ms Dorset addressed the second point first. She submits the Judge erred in two respects in determining the period during which Mr Simon was involved. First, she says the Judge erred when he referred to the date range for the charges. She says that although some of the cultivation charges allege offending between 25 May 2018 and 18 August 2020, the May 2018 date reflects the start of the involvement of co-defendants with whom Mr Simon was jointly charged.

• [84] Ms Dorset submits the Judge erred in a second way in determining the facts when he stated that his interpretation of the summary of facts was that prior to the intercepted communications, which span from 9 June 2020 to 19 August 2020, Mr Simon had been involved in modifying the wiring at the two Taupō premises and the View Road premises in Rotorua.

• [85] Ms Dorset submits the above alleged errors contributed to the Judge adopting a starting point that was excessive. On this ground, Ms Dorset characterises the principal offenders’ role in the cultivation as:

... lengthy, intensive, significant involvement, including planning, growing and harvesting, leasing buildings, acquiring necessary equipment for the cultivation, sophistication, yield, distribution, establishing businesses for the purpose of money laundering, money laundering, purchasing residential properties and sharing in the profits.

• [86] Ms Dorset submits that Mr Simon’s role was significantly less and was limited to: checking already established power lines, re-installing new cables, and bypassing power meters; assisting in obtaining electrical equipment at trade prices; and providing advice to Mr Atkins. His involvement occurred over a 10-week period and was limited to work from “time to time”. The evidence shows that Mr Simon was only in contact with and receiving instructions from Mr Atkins, and there is nothing to suggest that he had contact with any other principal offender or any other party regarding the cannabis cultivation.

• [87] Ms Dorset submits that Mr Simon had limited knowledge of the operation and how large it was. Based on the evidence it appears that Mr Simon’s work was limited to outside the buildings, so he would not have seen how many cannabis plants there were. Even if Mr Simon had entered the premise the cultivars were under cover so he

would have not known how many plants were there, and as there were no meters measuring the power Mr Simon could not have drawn an inference on the extent of the operation based on the power usage. Ms Dorset concedes that Mr Simon did know that he was assisting in diverting power to grow cannabis. However, his ignorance of the extent of the operations would indicate a minor role.

• [88] Although there is evidence of discussion of payment, Ms Dorset submits that Mr Simon in fact received no payment for his work. He did not receive a share of the profits.

• [89] Ms Dorset submits that based on Mr Simon’s limited involvement, 75 per cent culpability of the principal offenders is excessive. She submits the applicable tariff judgment for cannabis cultivation is R v Terewi.47 She accepts that the offending falls within the high end of category 3 of R v Terewi but submits that based on Mr Simon’s limited role a starting point of four years (or less) would be appropriate.

• [90] As to personal factors, Ms Dorset submits that the discounts were inadequate. She says the five percent discount for remorse and rehabilitation is insufficient. She notes that Mr Simon acquired a job at Sefton Electrical where he worked up until his sentencing in February 2022. Mr Sefton, Mr Simon’s employer, has been aware of Mr Simon’s offending and has adopted the role of a mentor. Mr Sefton has been actively engaged in Mr Simon’s rehabilitation.

• [91] She says the PAC report states that Mr Simon has experienced shame and remorse for his offending. He has shown a willingness to undertake interventions and has sought out counselling to address the issues that he has faced.

• [92] Ms Dorset next submits that the Judge was wrong to not allow any discount for background factors as set out in the s 27 report. She says the report writer identifies eight negative foundations present in Mr Simon’s upbringing. The Judge referred to these factors in his decision, saying:48

⁴⁷ R v Terewi, above n 16.

⁴⁸ R v Simon, above n 42, at [20]–[21].

• [20] ... I acknowledge the matters in the s 27 report about your earlier years. You left school at 15 and you have been working ever since. You are now aged 42. You stopped using drugs and alcohol 10 years ago after you had to make choices between using substances and having your children. As I have said, you have had a variety of different jobs and have been in leadership positions, working your way up to a line mechanic foreperson at Unison. This involved managing a crew of line mechanics. You told Mr Baker you earnt

$100,000 per annum with overtime. You own a home and you have been directly involved in raising your children.

• [21] Whilst I acknowledge your difficult start in life, I am unable to see a connection between your earlier years and this offending. For this reason, there will be no discount for the matters raised in the s 27 report.

• [93] Ms Dorset submits that this assessment does not recognise Mr Simon’s difficult upbringing as well as the work he has put in to overcome this. Ms Dorset submits this is contrary to case law, regarding a nexus between offending and socio-economic and cultural disadvantage.49

• [94] Ms Dorset submits that a discount of 20 percent would be appropriate for the matters raised in the s 27 report.

Respondent submissions – Mr Simon

• [95] Mr Evans submits this case falls within the highest category for cannabis cultivation. The Judge accurately assessed Mr Simon’s culpability as 75 per cent of the principal offender’s culpability in light of the summary of facts. He says Mr Simon was charged as a party because he assisted the principal defendants by rewiring all the industrial sites to ensure the defendants could avoid suspicion from the respective electricity providers. He submits the fact Mr Simon was not paid is irrelevant.

• [96] Mr Evans submits Mr Simon had full knowledge of the principal defendants’ plans to grow cannabis at the sites, which is supported by intercepted communications. He submits Mr Simon was an informed and mission-critical party.

• [97] In regard to Mr Simon’s appeal ground on the Judge’s alleged error of fact, Mr Evans submits the Judge did not err. He says the Judge summarised the summary of facts, including the period of time Mr Simon was involved in the operation. He

⁴⁹ Citing Waikato-Tuhega v R [2021] NZCA 503 at [51].

says any submission that Mr Simon had no knowledge of the operation is inconsistent with his guilty pleas and the summary of facts, which states his role in the cultivation operation was to use his skills to assist the principals to cultivate cannabis. He says the length of his involvement makes no difference to his culpability or how critical his involvement was in the operation.

• [98] Mr Evans submits that the Judge was correct in giving Mr Simon a discount of five per cent for the low level of remorse he displayed and his prospects of rehabilitation through employment. He points to the Judge’s assessment of Mr Simon’s remorse and prospects of rehabilitation:

[20] Your employer refers to you as a broken man after your arrest and the pre-sentence report refers to you withdrawing from social activities as you felt ashamed. You have self-referred to counselling which you have found helpful. However, the overall theme of the pre-sentence report is toward minimalization of involvement and there is no clear statement about the effect of your offending on the community and the electricity supply companies.

• [99] Mr Evans submits nothing has been shown to suggest that Mr Simon is aware of the effect his offending has had on the community. He says the remorse shown is largely insight into how being charged and convicted has affected him. He says it is regret in regard to the consequences of being charged.

• [100] In respect of the s 27 report, Mr Evans submits the Judge was correct in his assessment of Mr Simon’s background. He submits there is no demonstrated nexus between the offending and Mr Simon’s deprivation during his childhood. He says his culpability has not been reduced. Therefore, it was open to the Judge to not allow any discount for the contents of the s 27 report.

Mr Simon – Discussion

• [101] I first address whether the Judge erred in two respects on the facts. Both alleged errors relate to the period of time during which Mr Simon was involved.

• [102] Ms Dorset refers to the following paragraphs in the sentencing decision:50

⁵⁰ R v Simon, above n 42.

• [13] The first step of today’s sentencing process is to set a starting point. You have pled guilty to five charges of cultivation of cannabis, one charge of attempted cultivation of cannabis and five charges of theft of electricity. Those charges cover all of the sites of the cannabis cultivation operation. The date ranges for those charges cover the whole operation and the Court today has to decide the extent of your involvement.

• [14] My interpretation of the summary of facts is that prior to the intercepted communications which span 9 June 2020 to 19 August 2020, you had been involved in modifying the wiring at the two Taupō premises and the View Road premises in Rotorua. ...

• [103] I do not accept Ms Dorset’s submission that the Judge’s reference at [13] set out above to the date ranges for the charges covering the whole operation (back to 25 May 2018) indicates that the Judge considered Mr Simon’s involvement began at that early date. After mentioning the date, the Judge expressly said the Court had to decide the extent of Mr Simon’s involvement.

• [104] The second alleged factual error is the Judge’s statement in the first sentence of [14] as set out above. At that point, the Judge was simply repeating a paragraph from the summary of facts. The summary referred to phone calls between 9 June and 19 August 2020 between Mr Simon and Mr Atkins. The summary continues that those phone calls revealed conversations between the two of them arranging for Mr Simon to modify the electrical wiring at four identified addresses. The summary of facts then says in the following paragraph that Mr Simon had already modified the wiring at the premises which the Judge mentions in his judgment. The Judge’s interpretation that Mr Simon had done some wiring modification work prior to the phone calls commencing in 2020 is what the summary of facts says.

• [105] Ms Dorset’s point is that the evidential basis for the period of Mr Simon’s involvement is the intercepted phone calls, a table of which is annexed to the summary of facts. Those phone calls commenced, as the Judge said, between 9 June 2020 and continued up to 19 August 2020, the date of termination.

• [106] The District Court Judge can hardly be criticised for using the explicit words of the summary of facts. But Mr Evans accepted there was ambiguity as between the wording of the summary of facts and the evidential basis for the summary of facts in the timeline of phone calls. As I understand from counsel’s oral submissions, it was

the intention of the parties that the schedule of phone calls was annexed to demonstrate the period of Mr Simon’s involvement. The summary of facts should have been worded to avoid any ambiguity, but I accept that on the agreed facts Mr Simon was not involved before June 2020.

• [107] Next, I turn to whether the Judge’s assessment that Mr Simon’s culpability was approximately 75 per cent of the principal defendants was too high.

• [108] The facts indicate that it was. Mr Simon had no involvement in the initial setup of electricity to the properties in the period when they were established between May 2018 and May 2020. He attended to the electrical wiring on the outside of the commercial buildings leased by the principal offenders. He did not enter the properties at the time when cannabis plants were growing inside the premises and he had no involvement in the actual business of cultivating the cannabis. Further, he was not involved in the following activities undertaken by the principal defendants: planning the enterprise; finding and leasing the buildings; employing workers to tend and harvest plants; purchasing fertiliser, tents, tanks and ducting discovered by Police; communicating with other defendants through encrypted communications; distribution and supply; laundering money through various businesses; establishing and accessing bank accounts and sharing in profits. Essentially, Mr Simon was an employed electrician during the period from June to August 2020.

• [109] On the other hand, as set out in the summary of facts, Mr Simon used his expert electrical knowledge, specialist skills and privileges afforded to him from working at Unison to assist the principal defendants cultivate cannabis. As the Judge said, all of the premises that had been used show the use of live line techniques, which was one of Mr Simon’s skills. Despite not going into the buildings Mr Simon knew cannabis was being cultivated within each of the buildings. The Judge correctly said it would have been obvious to Mr Simon that this was a significant cannabis cultivation operation and that he was providing specialist skills to enable the supply of electricity to occur cheaply and without detection. As the summary of facts says, Mr Simon’s role of connecting the mains “was defined, critical and ongoing”.
• [110] However, although Mr Simon had an important role he was not involved in all other aspects of the operation and he was involved for a shorter period than the principals.

• [111] There is no disagreement over the Terewi band that applies. The offending falls at the high end of category 3, namely four to five years. But Ms Dorset’s position is that the starting point should be at the lowest end of that band. I agree. The appropriate starting point is four years’ imprisonment for the charges of cultivating cannabis and theft of electricity.

• [112] Mr Simon did not challenge the Judge’s uplift of three months’ imprisonment for conspiring with Mr Atkins to sell eight ounces of cannabis. The Judge’s reason for doing so was that he had concluded that it was separate offending to Mr Simon’s central role as a diverter of electricity. I agree with that approach. The appropriate overall starting point is therefore four years and three months’ imprisonment.

• [113] Next, I turn to the discounts.

• [114] The Judge gave a five per cent discount for remorse and efforts at rehabilitation. I consider ten per cent was warranted for those two factors. The writer of the PAC report says when the offending came to light, Mr Simon did not want to be seen by the community as he felt ashamed for his role in the offending. The report writer says that Mr Simon appeared insightful in reflecting on the impacts of his offending and he realised the gravity of his involvement. Mr Simon referred to the impact beyond his immediate family by mentioning the impact on his employer. His new employer is supportive of him and is willing to act as a mentor to him outside of work, offering the view that he is worthy of an investment of his time. Mr Simon has made an attempt self-referring to Te Utuhina Manaaki Ora but was unable to take individual sessions due to his employment hours. However, he also self-referred to Family Focus in February 2021. He completed six sessions. The report writer says his initial engagement with that service indicates a motivation to address his offending and other needs. All of that material indicates the five per cent credit given by the Judge was too low.
• [115] Finally, there is the issue of whether some credit should also have been given for personal background factors. The Judge summarised Mr Simon’s background as follows:51

[11] On your behalf, Ms Dorset has supplied a s 27 report prepared by 3 Degrees Limited. It is dated 21 July 2021 and involved the interview of you and your brother. The s 27 report informs the Court that you had some real difficulties in your early years. They included a violent father and there was not always enough food in the house. You left school at 13 and have been working ever since. You have also had a difficult personal relationship which has meant that you have had to take responsibility for the care of your children.

• [116] The Judge acknowledged difficulties in Mr Simon’s childhood but considered that they were not causally linked to his offending. The Judge said:52

• [20] I turn now to whether there should be a discount for background matters. I acknowledge the matters in the s 27 report about your earlier years. You left school at 15 and you have been working ever since. You are now aged 42. You stopped using drugs and alcohol 10 years ago after you had to make choices between using substances and having your children. As I have said, you have had a variety of different jobs and have been in leadership positions, working your way up to a line mechanic foreperson at Unison. This involved managing a crew of line mechanics. You told Mr Baker you earnt

$100,000 per annum with overtime. You own a home and you have been directly involved in raising your children.

• [21] Whilst I acknowledge your difficult start in life, I am unable to see a connection between your earlier years and this offending. For that reason, there will be no discount for the matters raised in the s 27 report.

• [117] I have reviewed those reports myself and consider the Judge did not err in his conclusion. I acknowledge there does not need to be extensive evidence of a nexus between offending and socio-economic and cultural advantage for a discount to be given and that it should not be a mechanical exercise with a high threshold of proof but an overall assessment as to how personal circumstances might have contributed to culpability or offending.53

• [118] Mr Simon became involved in the offending to help Mr Atkins. He says he initially made attempts to deflect the requests from Mr Atkins. But he finally agreed to review the attempts of others at electrical wiring. He says that when he saw the job

⁵¹ R v Simon, above n 41.

⁵² At 41.

⁵³ Waikato-Tuhega v R, above n 49, at [51].

Mr Atkins had done, he could not leave it as the building would have burnt down. He said the wiring in that state was dangerous. There is no link between Mr Simon’s statement as to why he became involved and his background. His background did not contribute to his culpability or offending. The Judge was correct not to give a discount for this factor.

Result

• [119] I adopt a lower end starting point of four years and three months (as opposed to five years and nine months adopted by the Judge) with an increased discount for remorse and rehabilitation of 10 per cent (as opposed to five per cent given by the Judge). These adjustments result in a 35 per cent discount (taking into account the 25 per cent for a guilty plea) and produce an overall discount of 18 months.

• [120] The end sentence is 33 months or two years and nine months’ imprisonment. That is one year and three months shorter than the four year end sentence reached by the Judge. The sentence imposed by the Judge was manifestly excessive.

• [121] I allow the appeal. The sentences of four years’ imprisonment on charges 13, 24, 30, 52, 58, 68, 74, 97 and 109 are quashed and sentences of two years and nine months’ imprisonment are imposed in their place.

Mr Mahuika

District Court decision

• [122] In his sentence indication, the Judge indicated a starting point of four years and six months’ imprisonment for the cultivation charges with an uplift of one year’s imprisonment on the other charges. The total starting point was five and a half years’ imprisonment. Nothing further needs to be said about that aspect of the decision as it was not challenged on appeal.

• [123] In the District Court, Mr Munro, for Mr Mahuika, submitted that there were a number of mitigating factors, including: a discount for remorse (warranting a five per cent discount); good character (despite Mr Mahuika’s conviction history) (warranting

a 15 per cent discount); addiction and rehabilitation efforts (warranting a 20 per cent discount); and personal background (warranting a 20 per cent discount).

• [124] The Judge gave the following discounts:

(a) a guilty plea discount of 25 per cent;

(b) a discount for remorse of two per cent;

(c) a discount for personal background (including Mr Mahuika’s disconnect from te ao Māori, trauma and lack of emotional support during his childhood, described as a “dysfunctional background”54) of 10 per cent from the Operation Morepork part of the offending;

(d) a discount of 25 per cent on the one year uplift for the home-based and personal offending for the element of addiction55;

(e) a discount for rehabilitation efforts of five per cent; and

(f) a discount for prospects of rehabilitation of five per cent.

• [125] The Judge calculated the total amount of discounts as “over 50 per cent”, which resulted in an end sentence of two years and eight months’ imprisonment on the three charges of cultivating cannabis arising out of Operation Morepork. On the other charges, the Judge sentenced Mr Mahuika to six months’ imprisonment, to be served concurrently.

Submissions for Mr Mahuika

• [126] On appeal, Mr Mahuika says the Judge erred by:

(a) failing to give any discount for previous good character; and

⁵⁴ R v Sharn Kelvin Mahuika [2022] NZDC 2705 at [29].

⁵⁵ At [31].

(b) by failing to give an adequate discount for remorse.

• [127] Mr Munro refers to 10 character references for Mr Mahuika from family members and others. Mr Munro submits these references show Mr Mahuika’s ongoing pro-social employment, work ethic and devotion to his family.

• [128] Mr Munro submits that R v Fangupo is analogous to this case.56 Mr Fangupo pleaded guilty to methamphetamine importation (20 kilograms). He provided six character-references to the Judge. The letters, from church leaders, a former employer, a former teacher, and his brother, consistently portrayed him as an admirable young man, humble and kind. On appeal, the Court of Appeal held that a discount of 15 per cent was appropriate to reflect both rehabilitative prospects and previous good character. The Court put to one side three previous convictions, which were all for driving offences committed when Mr Fangupo was aged 19, five years prior to the offending for which he was sentenced.

• [129] In comparison, Mr Munro submits that Mr Mahuika’s circumstances are more favourable, as the offending was considerably less serious (concerning a Class C rather than Class A drug, and lower quantities). Mr Munro submits that an additional discount of 10 per cent for previous good character would be appropriate in Mr Mahuika’s case.

• [130] Mr Munro submits that evidence of Mr Mahuika’s remorse was before the Judge in three forms:

• [131] First, the pre-sentence report writer recorded:

Mr Mahuika expressed regret for his offending and realises the enormity of the consequences of his actions. He advised that if he could go back, he would have done things different and not have gotten involved at all. Mr Mahuika expressed remorse for his offending and realised that his part in the offending has [sic] huge impact beyond just himself.

• [132] Second, in the character reference of McKenzie Chadwick:

⁵⁶ Fangupo v R [2020] NZCA 484.

I can tell you without a doubt that Sharn [Mahuika] is incredibly regretful for what he took part in, as he has expressed this many times.

• [133] Third, in the letter from his partner, Kaitlyn Roberts:

... [Mr Mahuika] feels a tonne of remorse for the mess he got caught up in, his anxiety and depressive state of mind has heightened due to the amount of regret he holds choosing the absolute wrong path, he has been working extremely hard to build up his good name again.

• [134] Mr Munro submits that Clark v R is a comparable case.57 In that case, the Court of Appeal held that remorse and rehabilitation require separate recognition in some cases. The Court considered the appropriate discounts were five per cent for remorse and 12 per cent for rehabilitation, in circumstances where the defendant had expressed genuine remorse, taken steps to address his addiction (as a cause of the offending) and was held to be genuinely motivated to take further steps towards rehabilitation.

• [135] On this basis, Mr Munro submits that a separate discount for remorse of five per cent is appropriate in Mr Mahuika’s case (rather than the two per cent given by the Judge).

• [136] Mr Munro submits that, if discounts for previous good character and remorse are given, the end sentence will be 24 months’ imprisonment. The Court would then be in a position to consider a non-custodial sentence.

Respondent submissions - Mr Mahuika

• [137] Mr Evans submits that the Judge did not err, and that the end sentence imposed on Mr Mahuika is within the available range.

• [138] Mr Evans submits that Mr Mahuika’s pro-social employment, work ethic and devotion to family does not outweigh his criminal history and the duration of the offending to the extent that he can be described as having previous good character.

⁵⁷ Clark v R [2020] NZCA 641.

• [139] Mr Evans distinguishes the present case from Fangupo v R, on the basis that Mr Mahuika’s criminal history contains more convictions than Mr Fangupo, and there are no significant gaps in his offending. At the time of his convictions for this offending, Mr Mahuika was 29 years old. His first offence was committed when he was 17 years old in 2009. With the exception of 2013, 2014 and 2017, Mr Mahuika has committed a criminal offence for which he has been convicted every year since 2009. Mr Evans accepts that the duration of the offending in each case was much the same: Mr Mahuika’s offending took place over a period of eight months; and Mr Fangupo’s offending occurred over seven months.

• [140] Mr Evans says positive aspects of Mr Mahuika’s personal circumstances were recognised and reflected in the awarding of a five per cent discount for rehabilitation efforts to date and another five per cent for rehabilitation prospects. The Crown submits that this is sufficient.

• [141] On the second ground of appeal, Mr Evans submits that the remorse expressed by Mr Mahuika only relates to his personal insights into how being charged and convicted has affected him. The regret is in relation to the consequences of being charged, and nothing has been shown to suggest that Mr Mahuika is aware of what effect this offending has had on the community. The Crown says that a discount of two per cent is appropriate and proportionate to the degree of remorse displayed.

• [142] The Crown submits that the sentencing judge did not err when he imposed the discounts and that the end sentence should stand. Therefore, Mr Mahuika will not be eligible for home detention. The Crown submits, in any event, that a sentence of imprisonment is appropriate in this case to reflect the seriousness of the offending.

Mr Mahuika – Discussion

• [143] I start with the submission that there should have been a good character discount. I have read Mr Mahuika’s character references. I acknowledge that Mr Mahuika has the support of friends, his pae tuarā Hunia Rogers from the Te Arawa Whānau Ora Programme, and many others.
• [144] I accept Mr Munro’s submission that the Court of Appeal decision in Fangupo v R is a useful comparator case. But it does not dictate the outcome in this case. Mr Fangupo’s previous convictions were three driving offences when he was 19 years old, five years before the offending that was before the Court. I agree with the Crown that Mr Mahuika’s criminal history is more significant. He has incurred 10 convictions between 2010–2019. Four of them are convictions for driving offences and I put them to one side. The other offences are: two shoplifting convictions for offending in 2010 when Mr Mahuika was aged 19; being unlawfully in a building in 2015 when Mr Mahuika was aged 24; and three charges of offending on the same day in September 2016 of being unlawfully in an enclosed yard or area, possession of graffiti implements and wilful damage (graffiti). The latter three offences occurred approximately three years before the offending which is before the Court.

• [145] I agree with the Judge’s decision to put the convictions to one side, in that they did not warrant an uplift. However, the nature of the prior offending goes beyond driving offences, which the Court tends to disregard when considering good character. While the offences are not serious, they involve dishonesty and anti-social behaviour. In those circumstances a discount for prior good character would not be appropriate.

• [146] The second ground of appeal is in respect of the size of the discount for remorse. The Judge gave Mr Mahuika a discount of two per cent. Remorse shown by the defendant is a mandatory consideration. The Court of Appeal in Moses v R said:58

... remorse is a personal mitigating factor that may justify a discount separately from any guilty plea discount. Remorse is a question of fact and judgement. The defendant bears the onus of showing that it is genuine, meaning that it qualifies as remorse and he or she actually experiences it. Remorse need not be extraordinary to earn a discount, but it does require something more than the bare acceptance of responsibility inherent in the plea. Courts look for tangible evidence, such as engagement in restorative justice processes.

• [147] The passage from the PAC report relied upon by Mr Mahuika set out at [131] above is incomplete. It continues:

Mr Mahuika is the sole income earlier in his family and he expressed his concern for the welfare of his family should he be incarcerated ...

⁵⁸ Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

• [148] Therein lies the difficulty for Mr Mahuika in making his submission. It is apparent he is regretful for the adverse effects on him and his family. But that does not put him in the position from any other offender with a family. There will be consequences for an offender’s family if they are convicted and sentenced. A recognition by a defendant that he and his family are likely to suffer is not a demonstration of remorse. The issue is whether Mr Mahuika is regretful of the offending itself. Neither the PAC report nor the other references referred to by Mr Munro demonstrate that he is.

• [149] The Judge did not err in allowing a small discount of two per cent for remorse.

Result

• [150] Mr Mahuika’s appeal is dismissed.

Result for all three appeals

• [151] Mr Simon’s appeal is allowed. The sentences of four years’ imprisonment on charges 13, 24, 30, 52, 58, 68, 74, 97 and 109 are quashed and sentences of two years and nine months’ imprisonment are imposed in their place.

• [152] Mr Horopapera’s and Mr Mahuika’s appeals are dismissed.

Gordon J