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.

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 R v Lim

Details

AGLC: R v Lim [2013] NZHC 190
Case: [2013] NZHC 190
Decision Date: 12 February 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the defendant, Tow Liang Lim, appeared for sentencing following his guilty plea to charges of cultivating cannabis, possessing cannabis for sale, and stealing electricity. The case was heard on 12 February 2013, with Mackenzie J presiding. The Crown was represented by A M Boberg, and the defendant by I M Stewart. The court was required to determine an appropriate sentence, considering the nature and extent of the offending, as well as the defendant’s personal circumstances.

The legal issues involved setting a starting point for the cannabis cultivation charge, determining any appropriate uplifts or discounts for the other charges, and weighing personal mitigating factors against the need for deterrence. The Crown argued for a starting point of around four years imprisonment, reflecting the sophistication and scale of the operation. The defence submitted for a starting point of three to three and a half years, reduced to account for the defendant’s role as an “employee” within the operation. The court also considered the theft charge, which required an uplift of six months.

Mackenzie J determined that a starting point of three and a half years was appropriate for the cannabis cultivation, with an additional six months for the theft charge, resulting in a total of four years. The only mitigating factor considered was the defendant’s early guilty plea, warranting a 25% discount, reducing the sentence to three years for the cultivation charge and one year for each of the other charges, to be served concurrently. The court decided against ordering reparation due to the defendant’s likely deportation at the conclusion of his sentence.

Orders