COTTON v R [2018] NZHC 2686

COTTON v R [2018] NZHC 2686 [17 October 2018]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2018-441-26[2018] NZHC 2686BETWEEN BRENT RODNEY COTTONAppellantAND THE QUEENRespondentHearing: 9 October 2018Counsel: E J Forster for AppellantC C Gullidge for RespondentJudgment: 17 October 2018JUDGMENT OF THOMAS J[1] The appellant, Mr Cotton, was sentenced by Judge Rea in the District Court totwo years and three months' imprisonment following a guilty plea to one charge ofpossessing methamphetamine for supply.1 Mr Cotton now appeals that sentence onthe basis that the Judge erred in failing to consider the absence of commerciality inadopting the starting point for the sentence.Factual background[2] In early 2018, Mr Cotton had allowed his friend to use his car. Some time later,Mr Cotton's friend reported that the car had been forcibly taken from him. On 2 March2018, Mr Cotton was spoken to by the Napier police about that report. Mr Cotton toldthe police he was not convinced of the truth of his friend's report. Mr Cotton explainedhis friends battled bad methamphetamine addictions. When the police asked if1 R v Cotton [2018] NZDC 13421; and Misuse of Drugs Act 1975, s 6(1)(f) and (2), maximumpenalty life imprisonment.Mr Cotton had any methamphetamine on him, he replied, "Obviously I do". Thepolice found a small quantity of methamphetamine in a backpack, and a larger quantityin another bag, totalling 47 grams. Mr Cotton stated he had found the drugs inAuckland, having arrived from there earlier that morning.[3] Mr Cotton is 57 years old. Other than the conviction relating to this appeal, hehas no criminal history. Prior to being charged, he had been in long-term employmentas a flight attendant. His mother died 12 months before the offending.[4] The presentence report found Mr Cotton had a low likelihood of reoffendingbased on his lack of prior offences and the significant impact the conviction wouldhave on him. Mr Cotton had told the presentence report writer that he did not considerhimself a supplier or drug dealer but said he shared his methamphetamine with a groupof his friends. He did not accept he had harmed the community and was described asbeing somewhat naive about the dangers of drug use. Mr Cotton reported that hehimself used methamphetamine recreationally and did not consider he was dependenton it.District Court decision[5] In assessing the offending, the sentencing Judge described 47 grams as a"considerable quantity", the greater portion of which was intended for supply with thepotential to do "significant harm in the community". Having considered the need forspecific and general deterrence, he adopted a starting point of four years'imprisonment.[6] The Judge recognised a lack of commerciality and lack of previous convictionsby way of a 25 per cent discount, taking the sentence to three years. He then applieda further 25 per cent discount for Mr Cotton's early guilty plea, resulting in the finalsentence of two years and three months' imprisonment.Law[7] This appeal falls to be considered under s 250 of the Criminal Procedure Act2011, whereby an appellate court must allow an appeal if it first finds an error in thesentence and is then satisfied that a different sentence ought to be imposed. The Courtof Appeal in Tutakangahau v R confirmed that s 250 does not change the errorprinciple approach:2 an appellate court must find a vitiating error, material to thedecision, before exercising the discretion to vary a sentence. The Court also confirmedthat, despite s 250 making no express reference to "manifestly excessive", the test maystill be applied to sentence appeals.3[8] The guideline judgment for Class A drug offending is R v Fatu.4 The Court ofAppeal made the following general comments:[31] Our sentencing ranges overlap between categories. Where anoffender fits within any particular band will depend not just on the quantityand purity of the drugs involved but also the role played by the offender.Those who are primary offenders can expect starting point sentences towardsthe higher end of the relevant band, with the converse applying to those whoserole is less significant. Obviously the sentencing Judge will also need to takeinto account the principles of sentencing referred to in s 8 of the SentencingAct 2002. Further, the aggravating and mitigating factors relevant to theoffending (as opposed to the offender), as set out in s 9 of the Sentencing Act,will also be highly relevant in fixing the starting point within a particular band.[32] In cases involving importation and supply, considerations ofcommerciality may be significant. Indeed, as will become apparent, we thinkthat in importation cases involving only small quantities of the drug forpersonal consumption, the appropriate sentencing response may lie outside(that is, beneath) the bands postulated (see para [34]). In cases involvingsupply, there is an obvious culpability difference between those who supplyfor gain and those who give small quantities of drugs to friends for theirpersonal consumption (or, perhaps, buy small quantities of drugs for theirfriends). Where there is a complete absence of commerciality and an absenceof aggravating features (for example, an aggravating feature such as the supplyof drugs to schoolchildren or other young people) sentencing Judges maysentence beneath the bands postulated in para [34].[9] Specifically in relation to offending involving supply, the Court said:[33] We have referred to the sentencing bands proposed in Arthur (see para[8]). With one modification, we are content to adopt those bands for offendinginvolving the supply of methamphetamine. The Court in Arthur indicated thatthe "large commercial quantity" category may well require further subdivision(at para [23]). After consideration, we think it desirable to ensure a gradationin sentencing response which is broadly referable to the quantity ofmethamphetamine involved in the offending. Where the quantity concernedis in excess of 500 g, we would see the appropriate starting range as being ten2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 [26]–[31].3 At [33] and [35].4 R v Fatu [2006] 2 NZLR 72 (CA).years' imprisonment or more. Longer sentences will be appropriate where thequantities are appreciably larger, to reflect the fact that dealing inmethamphetamine now potentially attracts a life sentence.[34] The result is that we adopt the following sentencing bands in casesinvolving the sale or supply of methamphetamine:(a) Band one – low-level supply (less than 5 g) – two years' to fouryears' imprisonment.(b) Band two – supplying commercial quantities (5 g to 250 g) – threeyears' to nine years' imprisonment.(c) Band three – supplying large commercial quantities (250 g to500 g) – eight years' to 11 years' imprisonment.(d) Band four – supplying very large commercial quantities (500 g ormore) – ten years' to life imprisonment.We emphasise that these are starting points, before taking into accountaggravating and mitigating factors relating to the offender (as opposed to theoffending). We also note that supply in small quantities where there is nocommerciality and no other aggravating features may call for starting pointsless than those indicated as appropriate for band one.Analysis[10] Mr Forster, for the appellant, submitted the Judge erred in his approach tonon-commerciality by applying the sentencing bands at [34] of Fatu without properreference to the Court of Appeal's comments at [32]. He conceded the Judgerecognised the lack of commerciality by way of a discount to the starting point.However, he submitted that discount does not reflect the way in which such an absenceof commerciality ought to be addressed.[11] Mr Forster identified the following factors as relevant to setting the startingpoint:(a) the non-commercial nature of the offending;(b) a proportion of the 47 grams would be for personal use, reducing theamount that could be considered for supply;(c) the nature of the supply would be sharing amongst friends; and(d) the absence of other aggravating factors.[12] Mr Forster submitted the starting point should have been in the vicinity of twoyears and six months' imprisonment. He suggested a further four months could bededucted for previous good character, along with the guilty plea 25 per cent discount.That approach would bring the sentence to 19.5 months' imprisonment, at which pointhome detention could be considered.[13] Mr Gullidge, for the respondent, submitted the Court of Appeal in Faturequired both non-commerciality and small amounts in order to benefit from a lowerstarting point than the bands suggested in that judgment. He pointed out that 47 gramsis almost 10 times the threshold amount for band two and would have a retail value ofover $20,000. He referred to the comments in the presentence report which suggestMr Cotton has less of an addiction than his friends, meaning the majority would be forsupply rather than personal use. He suggested it is implausible that Mr Cotton wasgiving the methamphetamine away for free. He referred to Nauleo v R and Williamsv R, where there were little indicia of commerciality and starting points of four and3.5 years were adopted, respectively.5 He noted the amount found in Mr Cotton's bagswas in excess of that found in those cases. On that basis, he submitted the startingpoint was well within range.[14] Whilst he acknowledged the Judge's approach to non-commerciality wasunorthodox, Mr Gullidge submitted the combined discount for that, assistance to thepolice and lack of previous convictions was generous. He suggested, because thestarting point was appropriate, any discount for lack of commerciality wasunnecessary. He submitted a 10 per cent discount would have been appropriate torecognise assistance to the police and five per cent to recognise the lack of previousconvictions. The end sentence was not manifestly excessive, in his submission.[15] In cases involving possession of methamphetamine for supply where weightsranged between 33 and 55 grams and where the offending included indicia of5 Nauleo v R [2017] NZHC 2149; and Williams v R [2017] NZHC 1859.commerciality, starting points ranging from four to five and a half years' imprisonmentare commonly taken.6[16] I have also considered cases where the sentence specifically recognised anabsence of commerciality. In R v MacPherson, the defendant was charged with avariety of offences relating to aiding a person to evade the police.7 This includedsupplying the person with methamphetamine. The defendant was caught by police inpossession of 14 grams of methamphetamine for this purpose. Ellen France J stated:[36] Turning then to the possession of methamphetamine for supply. Thiswas an unusual example of this sort of offending. It was simply for Mr Smith'suse. There was no commercial element, therefore, it does not particularly fallwithin the Fatu analysis. It is appropriate to add a 1 year cumulative term forthis offending. In reaching that figure I take into account factors I now discuss.[17] In R v Hart, the defendant pleaded guilty to four charges of supplyingmethamphetamine to her terminally ill ex-partner to assist with side effects of his painrelief medication.8 Duffy J set a starting point of three years, saying:[45] Under normal circumstances where there is an element ofcommerciality, offending which involved 33 grams of methamphetaminewould attract a starting point of between four and five years' imprisonment.However, as you were only supplying to your former husband, there is themitigating factor of a lack of commerciality being present. This places youroffending at the very bottom of band 2, or indeed, in terms of the principle inMacPherson, it may remove it from band 2 altogether. I consider that howeverit is formulated, the appropriate starting point here is one of three years'imprisonment. I find the case of Reti particularly helpful, as that case involved30 grams of methamphetamine, and there there was a starting point of threeyears.[46] It should be emphasised that your case, Ms Hart, has unique facts,which means that a strict application of the bands in Fatu is not justified and,as I have said in this regard, the approach suggested in MacPherson, where adeparture from the bands in Fatu may be warranted is relevant.[18] With that context, I then turn to consider the sentence imposed in the DistrictCourt and whether it was manifestly excessive. At sentencing, the defence submittedfor a starting point of four years. The Crown submitted a starting point of four years6 Reid v R [2013] NZCA 89; Nauleo v R, above n 5; R v Fonotia [2007] NZCA 188, [2007] 3 NZLR338; R v Allan HC Auckland CRI-2008-044-4178, 2 September 2008; and R v Xia HC AucklandCRI-2006-092-9456, 12 August 2008.7 R v MacPherson HC Hamilton CRI-2006- 019-1950, 11 May 2006.8 R v Hart HC Auckland CRI-2009-043-1288, 4 February 2010.six months' imprisonment was appropriate, recognising there was no indicia ofcommerciality. The Judge took a starting point of four years on an orthodox Fatuanalysis, prior to considering the lack of commerciality.9 In my view, the four yearstarting point for possession of 47 grams was within range, arguably at the lower end,even when factoring in possession for personal use.[19] There was some debate between Mr Forster and Mr Gullidge as to whether theCourt of Appeal's comments at [32] of Fatu could apply only to band one, given theCourt of Appeal said in [32] that cases involving only small quantities of the drug forpersonal consumption may result in a sentence beneath the bands set out in [34].Mr Gullidge relied on the fact [34] makes particular mention that small quantitieswhere there is no commerciality and no other aggravating features may call for startingpoints less than those indicated as appropriate for band one.[20] I do not doubt there is flexibility for a sentencing judge to temper theapplication of the Fatu bands to reflect the circumstances of the case and, in particular,a lack of commerciality. The fact that band two begins with quantities of five grams,the presumptive quantity for supply, would seem to demonstrate the point.[21] Forty-seven grams of methamphetamine is, however, a reasonably substantialamount. The Judge was correct, in my view, to emphasise the potential of themethamphetamine to do serious harm. Indeed, Mr Cotton's own comments to thepolice recognised that. He told the police that his friends were all battling "bad"methamphetamine addictions. Therefore, while there might not have been anyoutright commerciality in Mr Cotton's supply of drugs to his friends, the damagecaused by the supply was something he himself recognised. I regard that as anaggravating factor.[22] I recognise that Mr Cotton himself used methamphetamine. He is 57 years oldwith no prior convictions. With that in mind, there is some force to the submissionquestioning the utility of a sentence of imprisonment. As against that is the statutory9 R v Fatu, above n 4.presumption of imprisonment for any person convicted of supplying or possessing forsupply, a class A controlled drug.10[23] Standing back, I am not satisfied that an amended starting point, prior to aguilty plea discount, of three years' imprisonment for possessing 47 grams ofmethamphetamine, some for personal use but what could be fairly be said to be themajority to supply to friends addicted to methamphetamine, where the defendant hasno prior convictions and gave assistance to the police, is overall manifestly excessive.Mr Cotton then received the full 25 per cent discount for a guilty plea where theevidence was extremely strong.[24] In the circumstances, I am not satisfied the sentence was manifestly excessive.The appeal is dismissed.Thomas JSolicitors:Crown Solicitor's Office, Napier10 Misuse of Drugs Act 1975, s 6(4).