COSSEY v R [2021] NZCA 677

COSSEY v R [2021] NZCA 677 [13 December 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA398/2021[2021] NZCA 677BETWEEN ROMAN JOHN COSSEYAppellantAND THE QUEENRespondentHearing: 1 November 2021Court: Kós P, Simon France and Katz JJCounsel: N P Chisnall and L A Elborough for Appellant G Kayes and L Sullivan for RespondentJudgment: 13 December 2021 at 9 amJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of two years and four months' imprisonment is quashed.C A sentence of one year and eight months' imprisonment is substituted.____________________________________________________________________REASONS OF THE COURT(Given by Simon France J)Introduction[1] This sentence appeal involves a claim that a total existing discount of 60 per cent (including guilty plea credit) is insufficient, and a claim that the sentencing Judge erred both in implementing the identified discounts and in omitting credit fortime served as a recalled prisoner. The judgment first considers the issue of existing discounts and then addresses the other claimed errors.[2] Mx Cossey was sentenced by Jagose J to a final term of two years and four months' imprisonment for methamphetamine charges — supplying, offering to supply and possessing for supply; and a charge of breaching parole conditions. 1 They had been released from prison on a drug sentence about four months prior to commencing the current offending. Mx Cossey was recalled to prison on that earlier sentence once arrested, and a final recall order was operative at the time of sentencing.[3] It is helpful by way of background to note that Mx Cossey identifies as non-binary. They have masculine physiology but identify as female in their thoughts and feelings. 2 While on custodial remand for the current offending, Mx Cossey started taking testosterone blockers, apparently being the first person to receive this medication in prison. The reports available to the sentencing Court disclose Mx Cossey has had a damaged and traumatic upbringing involving both physical and sexual abuse, as well as dealing with internal confusion over their gender identity.Current and past offending[4] Between 1 December 2019 and 30 April 2020 Mx Cossey supplied methamphetamine in and around the wider Coromandel and Hauraki area. The summary of facts details an expanded criminal trafficking group, with four levels identified. Mx Cossey was part of the lowest level, and was a street-level dealer. The charges involved:(a) supplying methamphetamine — 13 occasions totalling 12.25 grams;(b) offering to supply methamphetamine — 23 occasions totalling 102.5 grams; and(c) possessing methamphetamine for supply, involving 20.74 grams located on arrest, with $18,848 cash.1 R v Cossey [2021] NZHC 1333.2 Taken from the Alcohol and Drug Assessment Report, written by Roger Brooking.[5] Mx Cossey had previously been sentenced on 25 July 2017 to a total term of seven years' imprisonment on similar charges, involving between 110–320 grams of methamphetamine. They were released from prison on parole on 30 July 2019, so the current offending as charged started four months after release. As noted Mx Cossey has been recalled to prison on the previous sentence.Sentencing[6] The Judge took a starting point of four years and six months' imprisonment. Because of Mx Cossey's "unsupported vulnerability on parole", which appears to be a reference to a lack of support from the Probation Service in relation to the difficulties Mx Cossey was experiencing because of their transgender orientation, there was no uplift for the offence of breaching parole conditions, which had been committed by virtue of possessing methamphetamine. 3[7] The structure of the sentencing was first to describe the various reports available to the Court in a way which identified the primary mitigation factors relevant to the sentencing exercise.4 This meant that when the actual sentencing figures were identified, the Judge did so briefly and in a global fashion. The relevant paragraphs can be cited:[27] I must take into account as aggravating the fact your offending was while subject to a sentence, also for methamphetamine offending. Your methamphetamine addiction, your background circumstances as I have outlined them, and your remorse and preparation for rehabilitation all qualify as mitigating. So too is the disproportionately severe nature of your imprisonment as a transitioning transgender prisoner in a men's prison, which may be viewed analogously with credit given for medical conditions with comparable effect. And, given the complexities and delays in obtaining disclosure and pursuing resolution of charges, you are entitled to something approaching a full discount for your guilty pleas.[28] All considered, I would uplift the starting point I have identified by 15 per cent, then to discount it by 60 per cent. That would bring a sentence for your present offending to two years and ten months' imprisonment.(Footnotes omitted.)3 R v Cossey, above n 1, at [25].4 See at [9]–[18].[8] The Judge next considered the sentence should be made cumulative on the recalled sentence, which led to an analysis of an appropriate notional sentence for all the offending. 5 Adding together the seven-year sentence on which Mx Cossey was now recalled and the identified two-year-and-ten-month present sentence led to a total sentence that would be "too high", so a further six months was deducted. 6[9] This meant the end sentence was two years and four months' imprisonment. 7Submissions[10] There is a dispute between the parties as to whether the guilty plea discount should be seen as 20 per cent or 25 per cent, the relevance being that the size of the global discount for the other mitigating factors is affected (35 per cent or 40 per cent). Having considered the competing submissions we accept the Crown submission that the guilty plea discount was 20 per cent, a conclusion consistent with the Judge's comment that the discount was "something approaching a full discount".8 A discount of 20 per cent is also consistent with that given to co-offenders who pleaded guilty at a comparable time. 9[11] On Mx Cossey's behalf, while acknowledging 40 per cent for other mitigating factors and 60 per cent overall are significant discounts, Mr Chisnall contends that more was required. A figure of 50 per cent is suggested. Emphasis is placed on the matters that constitute an "impoverished and dysfunctional upbringing" and on the difficulties Mx Cossey's non-binary status cause them both in prison and the community. We note the material on appeal supports counsel's overview and do not consider it necessary to detail more than what we have the basis for the submissions.[12] Mx Cossey has significant addiction issues, and has previously completed an intensive alcohol and drug programme. Higher Ground, a drug rehabilitation trust, has indicated Mx Cossey's suitability for placement within its programme. Mx Cossey5 At [29]–[32].6 At [31]–[32].7 At [32].8 At [27].9 R v Paki [2021] NZHC 908 at [34]; R v Savage [2021] NZHC 914 at [34]; R v Paul [2021] NZHC 1627 at [11]; and R v Henderson [2021] NZHC 1624 at [31].appears to be committed to tackling their addiction issue. All this leads Mr Chisnall to submit that in fixing the final sentence the Court should have had, and this Court should now have, regard to remand and parole considerations, to facilitate earlier access to Higher Ground.[13] In terms of how it is submitted 50 per cent might be allocated, it is suggested the upbringing factors, and the link between addiction and offending, support a separate 40 per cent discount. Then a further 10 per cent is appropriate for the difficulties Mx Cossey experiences as a transgender prisoner.Analysis on mitigating factors[14] We are not persuaded the Judge erred in allocating 40 per cent to these factors. When an offender presents with the complex and challenging circumstances Mx Cossey has confronted and continues to do so, allocating discrete amounts can be difficult. There is inevitably an overlap and a global figure is one reasonable response. The size of the discount is very much a matter of judicial assessment and not capable of extensive analysis. Here, 40 per cent is a significant recognition of Mx Cossey's personal circumstances and we are not satisfied more was required.[15] Because of the view we take, we do not need to analyse this further, but do note that all the purposes and principles of sentencing must be considered.10Mitigating factors cannot just be accumulated without regard to whether the final sentence adequately serves other sentencing principles such as accountability. Here a total discount of more than 60 per cent would at least engage the inquiry.[16] We also note that we are not persuaded there are factors that justify a court entering into the domain of parole eligibility and remand implications. The issues here are far from unusual and an orthodox approach to sentencing is suitable.[17] The aspect of the appeal concerning mitigating factors is dismissed.10 Sentencing Act 2002, ss 7–8.Other issues[18] It is submitted an arithmetical error occurred. Returning to the analysis earlier cited, the Judge:(a) identified a starting point of four years and six months (54 months); 11(b) applied an uplift of 15 per cent; 12 and(c) applied a discount of 60 per cent. 13[19] Both parties reach the same figure of 29.7 months. This is achieved by applying 15 per cent and 60 per cent both to the starting point of four years and six months (54 months). Following the methodology of Moses v R and applying both the uplift and discount at the second step, this results in a net reduction of 45 per cent (24.3 months) from the starting point and leaves a figure of 29.7 months, not the 34 months identified by the Judge. 14[20] The miscalculation is, however, irrelevant here since the Judge adjusted the (incorrect) sentence of two years and 10 months down for totality reasons, thereby more than compensating for the error. 15 Had two years and six months been correctly identified, it may be that no totality adjustment would have been undertaken.[21] The second alleged error is the fact that no credit was given for time spent on recall. At the time of sentencing Mx Cossey had spent 12 months further serving the recalled sentence. Here a 15 per cent uplift was applied to recognise the fact of offending while subject to the previous sentence, and the authorities point to recognition then being given to the time served as a recalled prisoner. 16 Counsel are again agreed that the authorities suggest eight months is appropriate and we are content11 R v Cossey, above n 1, at [25].12 At [28].13 At [28].14 Moses v R [2020] NZCA 296; [2020] 3 NZLR 583 at [46]–[47]. Compare R v Cossey, above n 1, at [28].15 R v Cossey, above n 1, at [32].16 Thomas v R [2020] NZCA 257 at [16]; Sililoto v R [2016] NZCA 328 at [35] and [37]; Oliver v R[2014] NZCA 285 at [9]; Te Aho v R [2008] NZCA 47 at [26]; and R v Paul CA409/05, 25 April 2006.to apply that figure. It will be deducted from the current sentence, being the equivalent of time served.Result[22] The appeal against sentence is allowed.[23] The sentence of two years and four months' imprisonment is quashed.[24] A sentence of one year and eight months' imprisonment is substituted.Solicitors:Crown Solicitor, Manukau for Respondent