R v Lyall [2012] NZHC 3245 (3 December 2012)

Last Updated: 17 December 2012

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-027-0998 [2012] NZHC 3245

THE QUEEN

v

DEAN CHRISTOPHER LYALL

Hearing: 3 December 2012

Counsel: C A Anderson for Crown

D R James for Prisoner

Judgment: 3 December 2012

_{SENTENCING NOTES OF HEATH J}

Solicitors:

Crown Solicitor, PO Box 146, Whangarei

_{Palmer Macauley, PO Box 576, Kerikeri}

R V LYALL HC WHA CRI 2012-027-0998 [3 December 2012]

Introduction

[1] Dean Christopher Lyall, you appear for sentence today having pleaded guilty to one charge of cultivating the Class C controlled drug cannabis and one of possession of cannabis. The cultivation charge carries a maximum penalty of seven years imprisonment.

Facts

[2] The Police executed a search warrant at your home on 4 April 2012. On arrival, a strong smell of cannabis coming from the garage was apparent. A search of the property located a cannabis cultivation operation inside the garage. This was behind a wooden wall that had been purpose-built to conceal the growing room from public view.

[3] On entering the growing room, the police officers heard the noise of extraction fans operating inside the room. 320 cannabis plants were located which you confirmed were approximately two to three weeks from harvest.

[4] The cultivation operation involved a relatively sophisticated structure. There were 11 white metal covers, containing fluorescent lights hanging above the plants;

12 ballest boxes; 6 switch boards and a number of power cables leading from a power to switch boards onto ballast boxes and then to the lights hanging above the plants. There were purpose-built large wooden planter boxes filled with soil containing the plants. There were also thermostats, extraction units and white and black plastic sheets covering the walls and ceiling. A calendar was found which indicated the time at which the harvesting would be optimal.

[5] The search identified other items relating to the growing of cannabis but what

I have said is sufficient to summarise the essence of the operation.

[6] Your explanation was that the plants were grown for the personal use of yourself and your partner. You have said that your partner suffers back problems and

the cannabis is used for medicinal purposes to ease the pain. You also accepted that you would trade some cannabis for car parts.

[7] I indicated during the sentencing that I was not prepared to accept, on the face of the summary, that this was other than a commercial operation. You elected to give evidence.

[8] I accept your evidence that the growing was carried out primarily for your partner, but partly for yourself. I accept that the reference to five to seven pounds of cannabis that you made to a police officer was to wet cannabis which would yield somewhat less once dried. I also accept that when you said that you would use some cannabis to make ends meet that you were referring to the possible trade of cannabis for car parts.

[9] I am also satisfied that you are remorseful. Again, the view I had formed before I came into Court was that you were more sorry for what had happened to you than for what you did. I am now satisfied that you are truly remorseful and that you wish to take steps to avoid being involved in criminal activity again.

[10] You recognise that whether you were intending to supply cannabis for the purpose of exchanging for car parts or selling to others is equally bad and equally responsive to the criminal law.

Analysis

[11] The starting point for sentence in those circumstances must be at the lower end of the range of two to four years identified in the cases.[1] I take a starting point of two years. From that I deduct six months which represents a credit of 25% for your guilty pleas.[2] That would leave ordinarily a sentence of 18 months

_{imprisonment.}

[12] Having heard from you, I am satisfied that it would be preferable to craft a sentence designed to help your rehabilitation rather than one which sends you to jail. That will also have the effect of allowing you to care for your partner and for your grandson.

[13] What you do need to understand, however, is that if any cannabis is found in the house at any time, whether for your use or for your partner’s use, that will almost inevitably end up being an application by the Crown to cancel your sentence and to have you imprisoned. And, almost inevitably, that application would be successful. So, that aspect of the sentencing will be entirely in your hands.

Result

[14] I sentence you as follows:

(a) You are sentenced to a term of community detention of four months.

The community detention shall be served at 5 Ohara Street. The curfew hours shall be from 7pm to 7am each Monday to Sunday (inclusive). The installation of the community detention monitoring equipment shall be done by 5pm on Friday 7 December 2012. Until that time you do not need to abide by the terms of the curfew but the community detention sentence will run for four months from 7

December 2012.

(b) You are sentenced to a term of intensive supervision of 18 months.

That will be on standard conditions and the following special conditions:

(i) You shall undertake and complete the Drug Abuse programme and abide by the rules of the programme to the satisfaction of the programme provider and probation officer;

(ii) You shall undertake and complete the Man Alive programme and abide by the rules of the programme to the satisfaction of the programme provider and probation officer;

(iii) You shall undertake and complete any such counselling programmes or training as directed by and to the satisfaction of the probation officer;

(iv) No illicit drug shall be kept in the property at which you will serve the sentence of community detention, 5 Ohara Street, Ngawha Springs, RD, Kaikohe, for the duration of the intensive supervision sentence.

(c) You are also ordered to serve 100 hours community work.

[15] Those sentences are imposed on the cultivation charge. On the possession of cannabis charge, you are convicted and discharged.

[16] I make an order for the destruction of all drugs and drug paraphernalia including equipment found during the course of the search that revealed the cultivation operation.

[17] Mr Lyall, that is a lenient sentence and one which you need to respond. As I have made it clear, if you do not perform those obligations the likelihood is you will be brought back and send to jail.

_{[18] Stand down.}

P R Heath J

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[1] _{R v Terewi [1999] 3 NZLR 62 (CA) at para [4]}

[2] Hessell v R [2011] 1 NZLR 607 (SC) at para [75].