Dyer v Police - [2014] NZHC 2961

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-404-000267 [2014] NZHC 2961

BETWEEN
KEVIN DYER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 24 November 2014

Appearances:

J F O'Halloran for Appellant
G E Hughes for Respondent

Judgment:

26 November 2014

(RESERVED) JUDGMENT OF ANDREWS J [Appeal against sentence]

This judgment is delivered by me on 26 November 2014 at 12 noon pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

DYER v NEW ZEALAND POLICE [2014] NZHC 2961 [26 November 2014]

Introduction

[1] On 7 March 2013 the appellant, Mr Dyer, pleaded guilty in the District Court at Waitakere to one charge each of cultivating cannabis (contrary to s 9(1) of the Misuse of Drugs Act 1975) and possessing cannabis pipes (contrary to s 13 of the Misuse of Drugs Act). On 18 July 2014, Judge Glubb sentenced him to two years’ imprisonment.1

[2] Mr Dyer has appealed against his sentence on the ground that it is manifestly excessive, in that the Judge adopted an excessive starting point for the cultivation charge, failed to recognise his rehabilitative efforts while on bail, and erred in excluding home detention as a sentencing option.

Background facts

[3] On 18 December 2012, the police executed a search warrant at Mr Dyer’s home address in Massey. The Police summary of facts stated that behind a removable wall, the police found a hidden growing room where 43 cannabis plants and 16 cannabis seedlings were being cultivated. Mr Dyer admitted to taking care of these plants and stated that he began the operation five months prior to the raid.

[4] The Police summary further stated that if each of the 43 cannabis plants were harvested three times every year, it was estimated that this growing operation would have yielded between 129 ounces (at one ounce per plant) and 387 ounces (at three ounces per plant) per year. This was disputed at the sentencing and on appeal. In these quantities, the police stated that at a price of $350 per ounce, the cannabis yield could have netted Mr Dyer between $45,150 (one ounce per plant) to $135,450 (three ounces per plant) per year.

[5] In a downstairs bedroom, the police also found two metal pipes both containing remnants of burnt cannabis in their bowls. Mr Dyer admitted that the
pipes were his, and that he used them to smoke cannabis.

1 R v Dyer DC Waitakere CRI-2012-090-8929, 18 July 2014.

District Court sentencing

[6] In sentencing Mr Dyer, the Judge took the cultivation of cannabis as the lead offence. He considered that the cultivation was in category 2 of the guidelines set in R v Terewi2 and adopted a starting point of two years and eight months’ imprisonment.

[7] In coming to this conclusion, the Judge considered that there was a degree of premeditation due to the size of the cultivation operation and the false wall to disguise the growing room, that the growing operation was of moderate size and fairly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dyer v Police

Details

AGLC: Dyer v Police [2014] NZHC 2961
Case: [2014] NZHC 2961
Decision Date: 26 November 2014

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal from Mr. Kevin Dyer against his sentence imposed by the District Court for cultivating cannabis and possessing cannabis pipes. The central issues of the appeal were whether the starting point for the cultivation charge was excessive, if the Judge should have recognised Mr. Dyer's rehabilitative efforts while on bail, and if home detention should have been considered as a sentencing option. The court considered the appeal under the Summary Proceedings Act 1957, which allows for the sentence to be quashed or varied if it is established to be "clearly excessive or inadequate or inappropriate." The court determined that the starting point for the cultivation charge should have been lower, taking into account the disputed yield produced by the cannabis plants. The court also found that the Judge should have given a discount for Mr. Dyer's rehabilitative efforts while on bail. However, the court was not persuaded that the Judge was wrong to refuse home detention as a sentencing option, as the nature of the cannabis-growing operation established at Mr. Dyer's home made it inappropriate for him to be sentenced to home detention at that address.

The court quashed the original sentence of two years’ imprisonment and imposed a sentence of one year and eight months’ imprisonment in its place. The concurrent sentence on the charge of possessing cannabis pipes remained in place. The court also granted Mr. Dyer leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention, in the event that a suitable address becomes available.

Orders