Police v Galyer - [2012] NZHC 1806

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]

[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.

[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…

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 Police v Galyer

Details

AGLC: Police v Galyer [2012] NZHC 1806
Case: [2012] NZHC 1806
Decision Date: 24 July 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Colin Ian Galyer was brought before the court for sentencing after pleading guilty to two charges of selling cannabis and one charge of possession of cannabis for supply. The District Court had declined to sentence Galyer, thus the matter was heard in the High Court. The legal issues the court was required to decide included the starting point for sentencing, the aggravating and mitigating factors, and whether to grant an order for the forfeiture of cash and destruction of cannabis material and equipment.

The court considered the starting point for sentencing to be between two and four years' imprisonment, with a specific focus on deterrence and consistency with other offenders convicted of similar offenses. The quantity of cannabis found and the level of commerciality indicated by the cash, text messages, and sales placed Galyer's case at the upper end of the category, with a starting point of three years' imprisonment. The court also considered mitigating factors, such as Galyer's guilty plea and time spent on bail under a 24-hour curfew, resulting in a discount of 25% to the sentence. The final sentence was two years and one month imprisonment, to be served concurrently on each of the three charges.

The court granted the Crown's request for an order for the forfeiture of the $920 cash found and the forfeiture and destruction of the cannabis material and equipment located during the search, as no opposition was offered.

Orders