R v Kyle HC Auckland CRI 2010-044-2940

[2010] NZHC 1451

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-044-002940

THE QUEEN

v

PHILLIP FRANCIS KYLE

Charges:         Cultivation of Class C controlled drug cannabis

Plea:               Guilty

Appearances: C Paterson for Crown

C Robertson for Prisoner

Sentenced:     27 July 2010

Home detention for 11 months

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            C Robertson, Auckland

R V KYLE HC AK CRI-2010-044-002940  27 July 2010

[1]      Phillip Francis Kyle you have pleaded guilty to one charge of cultivation of a Class C controlled drug cannabis.  The maximum penalty for this offence is seven years’ imprisonment.  You pleaded guilty in the District Court but the District Court Judge declined jurisdiction and remanded you for sentence in this Court because of the quantity of the cannabis involved and the potential seriousness of the offending.

[2]      Your apprehension in relation to the offending followed after you were seen leaving a property in Sunnynook at around 4.30 p.m. on 10 September last year.  At about 9.30 in that evening the police executed a search warrant and located in a locked garage a covert cannabis cultivation operation.  One hundred and ten plants ranging from seedlings to mature plants were located in planter pots and were growing in planter pots under lights with extractor fans.   It was a reasonably sophisticated and organised operation.  Access to the garage was through a trap door.

[3]      On the summary of facts assumption of four harvests a year, a potential yield of up to in excess of 1,300 ounces could have been grown in such an operation leading to a street value of approximately $400,000.

[4]      You are 55 years old.  You have no children or significant partner.  You are living at the time of offending with a flatmate.  You have lived at the same address in Browns Bay for 20 years.   You have for some time been on an invalid’s benefit. You suffered a brain injury in an accident in 2002 and you suffer from depression as a consequence.  Also you have insomnia and from time to time irritability.  You also suffer and receive treatment for diabetes and hepatitis C, and particularly hepatitis C requires ongoing treatment.   But before your illnesses you completed two apprenticeships as an electrician and a film projectionist and you were employed in a number of jobs.  You currently work as an “odd job man” from time to time.

[5]      In terms of the pre-sentence report the probation officer notes that you began using drugs while still at school and although you have taken steps in the past to address your addiction you do not appear particularly motivated to enter into specific interventions.   You are focused on your own health issues at the moment.   As a consequence you are assessed as being at a moderate risk of re-offending.

[6]      The probation officer recommended community detention but counsel has realistically accepted that given the extent of the offending in this case and your past history that is not a realistic option for the Court.

[7]      In sentencing you Mr Kyle I am required to take account of the purposes and principles of the Sentencing Act.  In your case in offending of this nature that is to:

•take account of the need to make you take responsibility for your offending;

•         deter you and others from offending in this way;  and

•take account of your culpability in the extent of the operation you were involved in.

[8]      I am also required to consider the relevant sentencing authorities and in this case the fact that there was another person charged with offending arising out of the same incident who has been dealt with in the Court at Christchurch.  I am told he has been sentenced to nine months’ home detention.

[9]      The leading authority in terms of sentence for cannabis cultivation like this is the case of R v Terewi.[1]   Counsel accept that the offending lies in band 2 of Terewi. Given the potential yield a start point for sentence for you of three years six months would be open to the Court.

[1] R v Terewi [1999] 3 NZLR 62.

[10]     Then there is your previous offending.   You have a long list of offending relating to cannabis offending although one has to go back to 1999 to find you were involved in any form of dealing in cannabis offending.

[11]     When I take those matters into account I uplift the start point but only by two months.  That leads the Court to the position where a term of imprisonment would be open to it before considering your personal mitigating circumstances of 44 months’ imprisonment.

[12]     In this case there are two positive factors that I can take into account on your behalf Mr Kyle.   The first is your early plea of guilty.   You pleaded guilty at the earliest opportunity and are entitled to a full discount of 33 per cent, a third, for that. That guilty plea is a recognition by you at an early stage of your responsibility and a tangible recognition of your remorse for your offending.

[13]     In addition there is the fact you have co-operated with the police as has been discussed in this case and I am able to take that into account as well.

[14]     I also take into account as far as I am able to your personal medical health and position although I have to say were it not for your early guilty plea and co- operation with the police, your personal medical condition would not have been sufficient for you to avoid imprisonment.

[15]     The end result is that overall a discount of 50 per cent is appropriate, which leads the Court to a sentence of imprisonment of 22 months or one year 10 months.

[16]     That means that the Court can consider home detention.  The Court is always cautious about imposing a sentence of home detention on a person who has ongoing issues with drug offending because it is easy to offend in relation to drugs from home.  However, you have been assessed as a suitable candidate for home detention and I note the offending that you were involved in was not from your home address as counsel has now clarified.

[17]     In the circumstances and bearing in mind the positive mitigating factors I have referred to, on balance I am prepared to accede to counsel’s submission and grant you home detention. The Crown does not oppose it.

[18]     Mr Kyle please stand.  On the charge of cultivation of the Class C controlled drug cannabis you are sentenced to home detention for a period of 11 months.

a)        on release from Court when the paper work has been completed you are to travel directly to 16 Argyle Road, Browns Bay and await the

arrival    of    the    probation    officer    and    monitoring    company’s representative.

b)you are to reside at that address for the duration of your release from home detention;

c)       you are not to possess or consume alcohol or illicit drugs for the duration of the home detention sentence;

d)you  are  to  undertake  and  complete  counselling  or  programmes directed by the probation officer;

e)       the  probation  officer  will  make  arrangements  for  you  to  attend whatever necessary medical interventions you need to attend during that sentence.

[19]     That’s all, stand down.

Venning J