Lysaght v The Queen

[2012] NZHC 3566

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2012-019-007367 [2012] NZHC 3566

DAVID LYSAGHT

v

THE QUEEN

Hearing:         18 December 2012

Counsel:         T Sutcliffe for the Prisoner

P Cornege for the Crown

Judgment:      18 December 2012

[ORAL] JUDGMENT OF WYLIE J

Distribution:

T Sutcliffe: [email protected]

P Cornege:  [email protected]

LYSAGHT V R HC HAM CRI 2012-019-007367 [18 December 2012]

[1]       The appellant, Mr Lysaght, appeals a refusal to vary a sentence of home detention pursuant to s 80F of the Sentencing Act 2002.

[2]      The decision was made by Judge PR Spiller on 15 November 2012.  He was not satisfied that there was a sufficient change of circumstances for the sentence of home detention to be cancelled.   He did, however, add an extra condition onto Mr Lysaght’s home detention sentence, requiring him to undertake an assessment with the probation service and to complete any counselling or treatment as suggested by that assessment, to address depression and mental health concerns.

Background

[3]      Mr Lysaght  was  charged  with  the  cultivation  of  cannabis  and  with  the unlawful possession of a firearm.  The police searched his residential dwelling on

15 February 2012.   They found a purpose-built cannabis grow room, 19 mature cannabis plants in the early stages of budding, two mature cannabis plants in a glasshouse at the rear of the property, and a number of items of cannabis cultivation equipment set up and in working order.   They also found a .22 calibre rifle and various rounds of ammunition.  Mr Lysaght did not hold a firearm’s licence.  Nor did his wife, Mrs Lysaght.

[4]      When spoken to by the police, Mr Lysaght acknowledged growing cannabis at the address.   He acknowledged that the cannabis was his.   He also admitted ownership of the firearm and said that it was for shooting possums.

[5]      The police estimate that the cannabis  yield would have been somewhere between 42 ounces and 126 ounces and that the potential profit would have been somewhere between $8,300 and $52,000, depending on the amounts obtained and the actual yield of the plants.

[6]      Mr Lysaght  entered  a  guilty  plea  and  appeared  before  Judge  Spiller  for sentencing  on  27  July  2012.     The  Judge  had  before  him  extensive  written submissions filed by a Mr Burroughs, acting on Mr Lysaght’s behalf.   Inter alia, Mr Burroughs   recorded   in   those   submissions   that   Mr Lysaght   lived   on   the

Coromandel and that his elderly mother-in-law had recently moved to his address. Mr Burroughs noted that Mr Lysaght and his wife had taken on the responsibility for the care and welfare of the mother-in-law, and that much of the day-to-day care of the  mother-in-law  had  fallen  to  Mr Lysaght  because  Mrs Lysaght  manages  a business.   Mr Burroughs noted that the sentencing options available to the Court would cause extreme hardship to Mr Lysaght and his wife.

[7]      The sentencing submissions prepared by Mr Burroughs also had attached to them  a  report  from  the  Community Alcohol  and  Drug  Service,  indicating  that Mr Lysaght’s  treatment  would  need  to  be  managed  carefully.     He  was  on  a methadone programme and it was recorded that he was experiencing a flood of emotions as his medication was varied, and that that had the potential to create a challenging time for him.  There was also a report attached from Health Waikato, which indicated that Mr Lysaght had suffered problems with depression.

[8]      It must be assumed that the Judge read and considered this material in sentencing.

[9]      The Judge in his sentencing notes indicated that the appropriate starting point for the cultivation of cannabis was two years’ imprisonment.   He noted various aggravating features personal to Mr Lysaght, as well as various mitigating features. He noted the guilty plea and the apparent remorse and determination not to repeat the offending.  He indicated that these matters brought the sentence back to one of 16 months’ imprisonment.  He then went on to consider other options available to him. He noted that home detention was opposed by the Crown, but that Mr Burroughs, on Mr Lysaght’s behalf, had argued for home detention or a lesser sentence.  The Judge indicated that in view of the offending, a sentence less than home detention was not available, but that the circumstances were such that a sentence of home detention was appropriate.   Mr Lysaght’s own residential address was not suitable for home detention and, as a result, the Judge directed that Mr Lysaght was to reside at an address  which  Mr Lysaght  himself  had  volunteered  in  West Auckland  for  the duration of the sentence.  He imposed a term of home detention of eight months.

Submissions

[10]     Mr Sutcliffe, on behalf of Mr Lysaght, asserts that there has been a change in circumstances sufficient to trigger the operation of s 80F of the Sentencing Act 2002, and that it is appropriate to commute the sentence and to substitute in its place a sentence of community work, combined with a sentence of intensive supervision.

[11]     The circumstances referred to by Mr Sutcliffe related primarily to the health of Mr Lysaght’s mother-in-law.  He advised me that she was previously living in her own home in Tauranga, but that her condition deteriorated and that she came to live with  Mrs Lysaght  in  late  September  2012.    He  told  me  that  notwithstanding Mr Burroughs’ submissions, she was not, in fact, living with the Lysaghts when Mr Lysaght  was  sentenced  in  late  July  2012.    He  suggested  that  the  fact  that Mrs Lysaght is now being required to care for her mother on more or less a full-time basis  is  placing  an  intolerable  burden  on  Mrs Lysaght  in  particular,  and  that Mr Lysaght is distressed by the circumstances in which his wife now finds herself. He submitted that Judge Spiller was wrong to conclude that this change in circumstances was insufficient to justify consideration that the sentence should be cancelled and that a substitute sentence should be put in place.

[12]     Mr Cornege for the Crown submitted that there was no sufficient change in circumstances such as to warrant a variation to the sentence.   He noted that the sentence  was  lenient  from  the  outset,  but  that  it  was  not  appealed  either  by Mr Lysaght or by the Crown.  Further, he argued that a sentence of less than home detention  would,  in  the  circumstances  of  Mr Lysaght’s  particular  offending,  be manifestly inadequate.

Analysis

[13]     Section 80F of the Sentencing Act provides as follows:

80FApplication for variation or cancellation of sentence  of home detention

(1)       An offender who is subject to a sentence of home detention, or a probation officer, may apply for an order under subsection (4) on the grounds that—

(a)       the offender is unable to comply, or has failed to comply, with any detention conditions:

(b)       any programme to which the offender is subject is no longer available or suitable for the offender:

(c)       the  home  detention  residence  is  no  longer  available  or suitable because of a change in circumstances:

(d)       having regard  to  any changes  in  circumstances  since  the sentence was imposed and to the manner in which the offender has responded to the sentence,—

(i)        the rehabilitation and reintegration of the offender would be advanced by the remission, suspension, or variation of any special conditions, or the imposition of additional special conditions; or

(ii)      the   continuation   of   the   sentence   is   no   longer necessary in the interests of the community or the offender.

…

(4)       On an application under subsection (1), (2), or (3), the court may, if it is satisfied that the grounds on which the application is based have been established,—

(a)       remit, suspend, or vary any special conditions imposed by the court, or impose additional special conditions; or

(b)      vary the home detention residence; or

(c)      cancel the sentence; or

(d)       cancel  the  sentence  and  substitute  any  other  sentence (including another sentence of home detention) that could have been imposed on the offender at the time that the offender was convicted of the offence for which the sentence was imposed.

(5)       An application under subsection (1), (2), or (3) may be made at any time before or after the sentence commences.

(6)       Section   72   applies,   with  any  necessary  modifications,   to   an application under this section.

[14]     Here, the application is founded on s 80F(1)(d).

[15]     A change in circumstances will only justify a variation or cancellation of home detention if it has the consequences set out in subs (1)(d)(i) or (ii).  The phrase “a change of circumstances” would seem to relate to a change in the applicable circumstances between the time the sentence was imposed and the time any application made under s 80F is considered by the Court.

[16]   Here, Judge Spiller concluded that there was no sufficient change of circumstances for the home detention sentence to be varied.  That is understandable. The difficulty from Mr Lysaght’s perspective is that the sentencing proceeded on the basis outlined by Mr Burroughs in his submissions and recorded by me earlier in this oral judgment.   Even though it may not, in fact, have been the case, the Judge understood at the time that he sentenced Mr Lysaght that Mr Lysaght and his wife were looking after Mr Lysaght’s mother-in-law.  The fact that it now transpires that this  may  not  have  been  the  case  does  not  seem  to  me  to  advance  matters significantly.  Judge Spiller imposed the sentence it is now sought to vary, taking into account what are now said to be the changed circumstances.

[17]     The papers which are before the Court, including a letter from Mr Lysaght’s sister, suggest that the elderly mother has been ill for some time.  As I have noted, the Judge thought that she was living with the family at the time that he imposed the sentence of home detention.   Further, there has been an additional change of circumstance which Mr Sutcliffe responsibly advised me of today.   Mr Lysaght’s mother-in-law has now been admitted to Thames Hospital, although it is anticipated that when and if she recovers, she will come back to live with Mrs Lysaght.   At present, Mrs Lysaght’s burden is lighter.

[18]     I have no doubt that the fact that Mr Lysaght is currently in Auckland serving a sentence of home detention is causing very real difficulties for Mrs Lysaght, and I have every sympathy for her.  However, the fact remains that Mr Lysaght’s offending was  serious  offending  of  its  kind.     Mr Lysaght  should  have  considered  the consequences of his offending before he embarked on this particular criminal enterprise.  He was fortunate to escape a sentence of imprisonment.  Had a sentence of imprisonment been imposed, it would not have been open to him to seek to commute that sentence under the Sentencing Act.

[19]     I also have no doubt that the sentence is proving difficult for Mr Lysaght. That, however, is irrelevant.   Sentences are not varied to accommodate offenders who belatedly appreciate the effect their offending has on others and who come to regret the straitened circumstances in which they find themselves.

[20]     In the circumstances, I am not persuaded that there has been a change of circumstances sufficient to invoke s 80F(1)(d).  The application is declined and the

orders made by Judge Spiller on 15 November 2012 are affirmed.

Wylie J