R v Lyall - [2012] NZHC 3245

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-027-0998 [2012] NZHC 3245

THE QUEEN

v

DEAN CHRISTOPHER LYALL

Hearing: 3 December 2012

Counsel: C A Anderson for Crown
D R James for Prisoner

Judgment: 3 December 2012

SENTENCING NOTES OF HEATH J

Solicitors:
Crown Solicitor, PO Box 146, Whangarei
Palmer Macauley, PO Box 576, Kerikeri

R V LYALL HC WHA CRI 2012-027-0998 [3 December 2012]

Introduction

[1] Dean Christopher Lyall, you appear for sentence today having pleaded guilty to one charge of cultivating the Class C controlled drug cannabis and one of possession of cannabis. The cultivation charge carries a maximum penalty of seven years imprisonment.

Facts

[2] The Police executed a search warrant at your home on 4 April 2012. On arrival, a strong smell of cannabis coming from the garage was apparent. A search of the property located a cannabis cultivation operation inside the garage. This was behind a wooden wall that had been purpose-built to conceal the growing room from public view.

[3] On entering the growing room, the police officers heard the noise of extraction fans operating inside the room. 320 cannabis plants were located which you confirmed were approximately two to three weeks from harvest.

[4] The cultivation operation involved a relatively sophisticated structure. There were 11 white metal covers, containing fluorescent lights hanging above the plants;
12 ballest boxes; 6 switch boards and a number of power cables leading from a power to switch boards onto ballast boxes and then to the lights hanging above the plants. There were purpose-built large wooden planter boxes filled with soil containing the plants. There were also thermostats, extraction units and white and black plastic sheets covering the walls and ceiling. A calendar was found which indicated the time at which the harvesting would be optimal.

[5] The search identified other items relating to the growing of cannabis but what

I have said is sufficient to summarise the essence of the operation.

[6] Your explanation was that the plants were grown for the personal use of yourself and your partner. You have said that your partner suffers back problems and

the cannabis is used for medicinal purposes to ease the pain. You also accepted that you would trade some cannabis for car parts.

[7] I indicated during the sentencing that I was not prepared to accept, on the face of the summary, that this was other than a commercial operation. You elected to give evidence.

[8] I accept your evidence that the growing was carried out primarily for your partner, but partly for yourself. I accept that the reference to five to seven pounds of cannabis that you made to a police officer was to wet cannabis which would yield somewhat less once dried. I also accept that when you said that you would use some cannabis to make ends meet that you were referring to the possible trade of cannabis for car parts.

[9] I am also satisfied that you are remorseful. Again, the…

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 Lyall

Details

AGLC: R v Lyall [2012] NZHC 3245
Case: [2012] NZHC 3245
Decision Date: 3 December 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the case of R v Lyall involved Dean Christopher Lyall who appeared for sentencing after pleading guilty to cultivating cannabis and possessing the same. The maximum penalty for cultivating cannabis is seven years imprisonment. The case was heard by Heath J on 3 December 2012.

The primary legal issue before the court was determining the appropriate sentence for Lyall, given his guilty plea to cultivating and possessing cannabis. The court needed to weigh various factors including the nature of the offense, the extent of Lyall's involvement, his remorse, and the potential for rehabilitation.

Heath J started the sentencing by acknowledging Lyall's guilty plea and accepted that the primary motivation for cultivating cannabis was for personal use by Lyall and his partner, who suffers from back pain and uses cannabis for medicinal purposes. The court did not accept that this was a commercial operation despite the sophistication of the setup. Heath J also accepted that Lyall expressed remorse and a genuine intention to avoid further criminal activity. The court decided that a sentence designed to facilitate rehabilitation was preferable over imprisonment, while emphasizing that any future possession of cannabis would likely result in imprisonment.

The final orders included a term of community detention for four months, a term of intensive supervision for 18 months with specific conditions, and 100 hours of community work. Lyall was also ordered to complete certain rehabilitation programs. Additionally, the court ordered the destruction of all drugs and drug paraphernalia found during the search.

Orders