R v Lim

[2013] NZHC 190

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-055-2080 [2013] NZHC 190

THE QUEEN

v

TOW LIANG LIM

Hearing:         12 February 2013

Counsel:         A M Boberg for Crown

I M Stewart for Defendant

Judgment:      12 February 2013

SENTENCING REMARKS OF MACKENZIE J

Solicitors:

Meredith Connell for Crown

Ministry of Justice – Public Defence Service Manakau for Defendant.

R V LIM HC AK CRI-2012-055-2080 [12 February 2013]

[1]       Mr  Lim,  you  appear  for  sentencing  today  having  pleaded  guilty  to  the following charges:

(a)       one charge of cultivation of cannabis;[1]

[1] Misuse of Drugs Act 1975, ss 9(1) and 9(2) with a maximum penalty of seven years imprisonment.

(b)      one charge of possession of cannabis for sale;[2] and

(c)       one charge of theft of electricity.[3]

[2] Sections 6(1)(f) and 6(2)(c) with a maximum penalty of eight years imprisonment.

[3] Crimes Act 1961, ss 219 and 223(b) with a maximum penalty of seven years imprisonment.

[2]      You are here in the High Court for sentencing because the District Court has declined jurisdiction to sentence you.

[3]      On 15 August 2012 the police stopped in at an address at Papakura to make an enquiry.  You met the police outside the house.  The police could smell cannabis and asked you if there was cannabis at the address.  You said yes and pointed to the shed at the front of the property.  The police subsequently searched the address and discovered a cannabis growing operation in the shed and inside the house.

[4]      The shed was split into two rooms.   The largest room contained mature cannabis plants while the smaller room contained seedlings.   All the plants were growing under heat lamps and temperature controlled extractor fans.   Both rooms were fully enclosed in polythene.

[5]      Inside the house, two of the three rooms were set up solely for the purpose of growing cannabis.   Once again, all the plants were growing under heat lamps and temperature controlled extractor fans.  The rooms were fully enclosed with boards covered in insulation.   In your bedroom, the police discovered several mature cannabis plants growing under heat lamps and temperature controlled extractor fans.

In total, the search revealed 466 cannabis plants.

[6]      In one of the bedrooms, the police also located 23 plastic zip lock bags filled with dried cannabis leaf material. A further six bags filled with cannabis were found in a bucket in the hallway.  The total weight of the 29 bags of dried cannabis leaf material was 1.119 kg.

[7]      In the bedroom adjacent to the power meter box, the police found a bypass switch on the wall.  Sometime in March 2012 you installed the switch by altering the wires, which allowed you to use electricity for the cultivation operation without having to pay for it.  At 6 am each morning you would turn the bypass switch on, along with the hydroponic lights, and at 6 pm you would turn it off so that the power meter ran as normal.  The amount of electricity you stole is estimated at $12,000.

[8]      In explanation for your offending, you told the police that you were paid

$3,000 a month to grow the cannabis and to build the rooms and the bypass switch.

[9]      I turn now to your personal circumstances.  You are 39 years old and you are a Malaysian national. You have been in custody since your arrest on 15 August 2012 and have no friends and family in New Zealand.  Before you came to New Zealand in February 2012, you had been living in Malaysia with your wife and two teenage children.  You had developed a chronic gambling addiction and accumulated a large debt which you could not repay.   An associate in Malaysia advised you to leave Malaysia quickly and travel to New Zealand.  You claim that you fled from Malaysia to escape debts and that, on arrival in New Zealand, you were instructed to tend the cannabis cultivation operation. You claim you were paid $3,000 per month for doing so and did not otherwise profit from the operation.

[10]     You knew what you were doing was illegal but say that you were “hooked in”.  You told the report writer you were sorry for your actions but that you “had no choice”.  You know you are likely to be deported and are concerned about returning to Malaysia.

[11]     I must set a starting point for the cannabis offending, in accordance with R v Terewi.[4]     I adopt the approach which both counsel urged of treating as the lead charge that of cultivation of cannabis.

[4] R v Terewi [1999] 3 NZLR 62 (CA).

[12]     Counsel for the Crown submits that your cannabis cultivation offending falls at the upper end of category two or the lower end of category three and that an appropriate starting point on a totality basis is around four years imprisonment.  She submits that this starting point reflects the amount of cannabis involved, the “undoubtedly commercial” nature of the operation and the high degree of sophistication.  She refers to the cases of R v Broughton and Vernon v R, which are cases that she says involved offenders who played integral roles in the management

of sophisticated indoor cultivation operations, similar to your role.[5]

[5] Vernon v R [2010] NZCA 308; R v Broughton CA18/05, 9 June 2005.

[13]     Your counsel submits that your offending falls at the middle to upper end of category two and that a starting point of three to three and a half years would be appropriate to reflect the reasonably high level of sophistication of the operation, the number of plants and the fact that you pleaded guilty.   But she submits that the starting point should be reduced from that which would otherwise be appropriate to reflect your lesser role in the enterprise.   She says that your position within the enterprise was effectively that of an “employee” who did not stand to profit from the offending other than being paid what could be described as a wage.  She relies on the Court of Appeal decision in R v Daley where the sentencing judge reduced the starting point for one of the offenders to reflect that person’s role as an “employee”

of the principal offenders.[6]

[6] R v Daley (1999) 17 CRNZ 388 (CA).

[14]     In determining what should be an appropriate starting point,  I have  also considered a number of other cases.  They will be listed in the written sentencing

notes.[7]

[7] R v Millington HC Auckland CRI-2010-004-452, 20 August 2010; Larking v R [2011] NZCA

401; R v Delamore HC Auckland CRI-2010-004-1934, 5 October 2010; R v Seymour HC Whangarei CRI-2009-027-1356, 3 February 2010; R v Butler CA221/04, 4 October 2004; R v Reti HC Wellington CRI-2004-091-2330, 15 October 2004.

[15]     I take into account, as reducing the level of your culpability for the offending, the matters which are urged on me by your counsel.  You were not the instigator of the offending, and did not stand to make the level of profit which it was capable of generating.   I accept that you may have been under some pressure to become involved.  Those factors lead me to a starting point lower than would otherwise be appropriate for the scale of the operation.  However, I do not think that your role can be diminished too greatly.  You were effectively the sole operator of this operation and in complete control of what was going on.  So the discount that I can make on account of your lesser role must reflect that.   Taking these factors into account, I adopt a starting point of three and a half years for the cannabis offending.  An uplift is required to reflect the theft charge. You were responsible for and had the expertise which enabled you to bypass the meter.  I suspect that the motive for that may well have been one of avoiding detection rather than one of monetary gain from the theft of the electricity.  But nonetheless it was a substantial theft and an uplift is required to reflect that.   I uplift the starting point by six months to reflect the theft charge. That leads to a total for your offending of four years.

[16]     I turn now to the factors personal to you.   There are no personal factors requiring an uplift.  Personal factors can carry little weight as mitigating factors in serious  drug  offending  such  as  this.    The  need  for  deterrence  is  an  important principle of sentencing in this case.   I consider, having considered your personal circumstances carefully, that there is nothing in them which justifies a reduction. You are a first offender in New Zealand, but have not been here for long.   You cooperated with the police, but the credit for that is reflected in the credit for your guilty plea.  You have shown some remorse and your letter to me confirms that.  But again, the credit for that is reflected in your guilty plea.

[17]     So the only mitigating factor is your guilty plea, which you entered at the first reasonable opportunity.   And, as I have said, it also indicates a degree of initial acceptance of responsibility and a degree of remorse.  Both Crown and your counsel submit that a discount of 25 per cent would be appropriate in accordance with the Supreme Court decision in Hessell v R, and I allow that discount notwithstanding the

strength of the prosecution case which might otherwise justify some reduction in the discount.8   So I discount your sentence by 25 per cent, or one year.

[18]     So the sentence is that on the charge of cultivation of cannabis  you are sentenced to three years imprisonment.   On each of the other charges you are sentenced to one year. All terms are to be served concurrently.

[19]    The question of reparation arises.   Reparation of $12,000 would be the appropriate figure to reflect the theft of the electricity.  In your circumstances, and bearing in mind the likely consequence that you would be deported at the conclusion of your sentence, I do not think that an order for reparation would be meaningful and I do not order reparation.

[20]     Stand down.

“A D MacKenzie J”

8      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.