Police v Galyer [2012] NZHC 1806 (24 July 2012)

Last Updated: 1 August 2012

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2012-031-486 [2012] NZHC 1806

NZ POLICE

v

_{COLIN IAN GALYER}

Hearing: 24 July 2012

Counsel: P Murray for NZ Police

S Hewson for Colin Galyer

Judgment: 24 July 2012

_{SENTENCING REMARKS OF MALLON J}

Introduction

[1] Mr Galyer can you please stand. You appear for sentencing today having pleaded guilty to two charges of selling cannabis[1] and one charge of possession of cannabis for supply.[2]

[2] You are here in the High Court for sentencing because the District Court has declined to sentence you.

NZ POLICE v GALYER HC PMN CRI 2012-031-486 [24 July 2012]

Circumstances of offending

[3] The circumstances of your offending, as set out in the summary of facts, is as follows. On 7 February 2011 your home was burgled. You reported to the police that you had received abusive and threatening text messages on your cell phone after the burglary. The police executed search warrants with two phone companies in relation to the texts you had received over a one week period (between 7 February and 14 February 2011). They discovered text messages which showed you were selling cannabis. You were selling cannabis tinnies for $20 or small plastic bags of cannabis for $40. The text message data showed approximately 28 sales of cannabis to various people over the week. This gave rise to the first charge of selling cannabis.

[4] From 27 to 30 March 2012 the police carried out surveillance of your activities during the day. You were observed making 37 sales of cannabis plant to various people at an array of addresses over that period. This gave rise to your second charge of selling cannabis.

[5] On 4 April 2012 you were driving in Levin when the police stopped your vehicle for the purpose of executing a search. In various places in your ute the police discovered:

(a) A plastic container containing 237 grams of un-manicured cannabis;

(b) A tin containing 63 grams of cannabis head separated into two Snaplock bags (with a value of about $500-$700 if sold in ounce bags);

(c) A plastic bag containing 175 grams of cannabis head in an un- manicured state;

(d) A jar with two cannabis tinnies (value of $40); and

(e) Another container containing eight small zip lock plastic bags of cannabis weighing two grams each (with a value of $320).

[6] The police also executed a search warrant at your home address. While searching a vehicle parked in the garage at the address, police located:

(a) A bucket with a shopping bag containing 450 grams of manicured cannabis head, with an approximate value of between $3,000 and

$4,000 (if sold in pounds or ounces);

(b) A bucket with five plastic bags containing various quantities of manicured cannabis head, with a combined weight of 560 grams and an assortment of small unused plastic bags. The estimate value of this cannabis is approximately $3,600 to $6,000 (if sold in pounds or ounces);

(c) A bucket with 28 small plastic bags containing cannabis plant material of various quality;

(d) A plastic bag containing 44 seeds and a number of small unused plastic bags;

(e) A pocket sized electronic scale, which is commonly used to weigh out quantities of drugs.

[7] A second vehicle parked in the driveway of the address was also searched. The police located $920 in cash in $20 denominations under the floor mat by the centre console.

[8] The combination of these searches revealed a total of over 1.5 kilograms of dried cannabis in your possession, the exact amount depending on the weight of the

28 small plastic bags of plant material.

[9] When you were interviewed, you denied that you were a drug user. You said that the cannabis was given to you but would not say by whom. You sought to

explain the text messages sent and received on your phone by saying that you fix windows for people. You had no explanation for why you had the cannabis, or why it was packaged the way it was.

[10] You subsequently entered your guilty plea and accept the summary of facts.

Circumstances of the offender

[11] I turn now to your personal circumstances.

[12] You are 55 years old. You have two adult sons. You have other family as well. You live alone and have been receiving the unemployment benefit for the last two years. Before you went on the unemployment benefit, you ran your own glazing business.

[13] Your pre-sentence report notes that you do not have any harmful patterns of drug or alcohol use. You told the writer that you used to smoke cannabis but had not done so for some years.

[14] You have six previous convictions. But you have not appeared in court since

1983 and none of your previous convictions are for drug-related offending.

Purposes and principles

[15] In sentencing you I am required to take into account the purposes and principles of sentencing as set out in the Sentencing Act 2002. Deterrence is of particular importance in this kind of offending. Consistency with other offenders convicted of similar offending is also important. I now turn to the starting point.

Starting point

[16] The Court of Appeal’s decision in R v Terewi[3] is the guideline judgment. Counsel are agreed that the relevant category in that judgment is what is called

category 2. That indicates a starting point generally of between two and four years’

imprisonment.

[17] Counsel for the Crown submits that the quantity of cannabis found and the level of commerciality (as indicated by the cash, the text messages and the sales) puts this at the upper end of this category. Counsel submits that guidance is provided by the cases of R v Duncan,[4] R v Lambess,[5] R v Poroa,[6] and R v Gray.[7] It submits that an appropriate starting point is in the region of three to three and a half years’ imprisonment.

[18] Your counsel submits that the overall criminality falls within the middle of Band 2. He submits that the most similar of the cases referred to by the Crown is R v Duncan. He submits a three year starting point is appropriate.

[19] I consider that a three year starting point is the appropriate one. As well as the cases the Crown has referred to, other broadly similar cases are R v Lloyd,[8] R v Nga[9] and R v Wihongi and Cook.[10] Together these cases show a range of between two years six months and three years six months is available. In my view the middle of this available range is the appropriate one for you. In your case, the quantity of

cannabis and cash found is smaller than in some of the cases, but there are other indicators of commerciality. In particular, the packaging of the cannabis, the array of plastic bags of various sizes which are shown in the photographs, the electronic scales and the frequency of sales over a short period shows that you were regularly selling cannabis for cash in $20 and $40 amounts. You were a regular seller of cannabis and you were doing this for money.

Aggravating and mitigating factors

_{[20] I turn now to the factors personal to you.}

[21] As noted above, you have previous convictions, but none of these are drug- related and the last offending occurred nearly 20 years ago. Therefore, they are not aggravating.

[22] I have read the letters that have been submitted on your behalf. While they speak of your good qualities, there is nothing in particular about them that would warrant any discount to your sentence for this offending. In light of your personal circumstances, I remain of the view that the middle of the range that I have referred to is the appropriate one for you. You are, however, entitled to a discount for your guilty plea. You pleaded at the earliest opportunity. As such, a discount of 25 per cent is appropriate. That would mean a sentence of 27 months.

[23] You have been on a bail subject to a 24 hour curfew since 11 April 2012. I

will reduce your sentence by two months to reflect the restrictive nature of that bail. [24] There are no other mitigating factors.

[25] That leaves an overall end sentence of 25 months. That is, two years and one month imprisonment. That puts you outside the area where a sentence of home detention could be considered. Your counsel did not seek to advance this as appropriate in your case unless I had a different view to the likely end point than he did, which I do not. Therefore your overall sentence is two years and one month. That sentence applies to each of the three charges. Those sentences are concurrent sentences.

Forfeiture of cash/Destruction

[26] The Crown seeks an order for the forfeiture of the $920 cash found. It also seeks an order for the forfeiture and destruction of the cannabis material and equipment located during the search. No opposition is offered in respect of those orders. I am satisfied it is appropriate to make them. And I so order.

Mallon J

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[1] _{Section 6(1)(e) of the Misuse of Drugs Act 1975, maximum penalty of eight years imprisonment.}
[2] _{Section 6(1)(f) of the Misuse of Drugs Act 1975, maximum penalty of eight years imprisonment.}

[3] R v Terewi [1999] 3 NZLR 62 (CA).
[4] _{[2009] NZCA 18.}
[5] _{[2012] NZHC 97.}
[6] _{HC Tauranga CRI-2010-070-2926, 30 July 2010.}
[7] _{[2009] NZCA 31.}
[8] _{HC Dunedin CRI-2009-012-1521, 23 September 2009.}
[9] _{HC Auckland CRI-2007-092-8897, 11 March 2008.}
[10] HC Dunedin T-2009-012-4390, T-2009-012-4352, 17 December 2009.