R v COLE [2022] NZHC 1064

R v COLE [2022] NZHC 1064 [13 May 2022]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2020-019-6031[2022] NZHC 1064THE QUEENvYOICHI MARTIN COLEHearing: 13 May 2022Appearances: K Whyte for the CrownG D Prentice on instructions from W N Dollimore for theDefendantJudgment: 13 May 2022(REDACTED) SENTENCING NOTES OF GORDON JThis judgment is delivered by me on 13 May 2022 at 1pm......................................................Registrar / Deputy RegistrarSolicitors/Counsel:Kaleb Whyte, Crown Solicitor, HamiltonGlen Prentice, Barrister, HamiltonIntroduction[1] Mr Cole, you appear for sentencing on the following charges:1(a) Supplying a Class A drug (methamphetamine);2(b) Supplying a Class A drug (gamma-butyrolactone aka GBL);3(c) Offering to supply a Class A drug (GBL).4[2] The maximum penalty for dealing methamphetamine is life imprisonment.[3] The facts of your offending are set out in my sentence indication.5 I will notrepeat them here. My sentence indication will be attached to these remarks and formpart of them. In brief, you acted as a street level dealer and supplied 0.5 of a gram ofmethamphetamine on one occasion, and unspecified amounts on two occasions. Youalso supplied GBL on three occasions and offered to supply GBL on three furtheroccasions.[4] On 24 March 2022 I gave a sentence indication of eight months' imprisonment,with the possibility of Home Detention or a community-based sentence. You acceptedthis indication on 1 April 2022 and pleaded guilty to all charges.Approach to Sentencing[5] Mr Cole, in sentencing you today, I am required to take into account thepurposes and principles of sentencing as contained in the Sentencing Act 2002 (theAct).6 In particular, I must impose a sentence which: holds you accountable for theharm methamphetamine offending does to the community; promotes in you a sense ofresponsibility and acknowledgement of that harm; denounces your conduct; and deters1 The defendant was charged with two charges of supplying methamphetamine. The two chargeshave been amalgamated for sentencing purposes.2 Misuse of Drugs Act 1975, s 6(1)(c) and (2): maximum penalty life imprisonment.3 Misuse of Drugs Act, s 6(1)(c) and (2): maximum penalty 14 years' imprisonment.4 Misuse of Drugs Act, s 6(1)(c) and (2): maximum penalty 14 years' imprisonment.5 R v Cole [2022] NZHC 557.6 Sections 7 and 8.you and any other person from committing similar offences in future. The sentence Iimpose must also reflect the gravity of your offending, the seriousness of this type ofoffending and the desirability of consistency with appropriate sentencing levels.7[6] On the other hand, I must be mindful of the need to assist in your rehabilitationand reintegration into the community. Accordingly, I must impose the least restrictiveoutcome that is appropriate in the circumstances.8Personal circumstancesPAC report[7] I have been provided with a Provision of Advice to the Court (PAC report),dated 27 April 2022. This a report prepared by the Department of Corrections. It wasnot available to me at the sentence indication.[8] I note that the report is generally favourable and recommends a sentence ofHome Detention but also considers Community Detention, Intensive Supervision orSupervision as other options. The report emphasises that you have shown remorseand taken steps towards rehabilitation while on bail.[9] I understand from the report that you live with your sister and her partner inPukekohe, South Auckland. You say they are your main support in the community, asyour parents are both deceased. You have regular contact with your seven-year-olddaughter, who lives in Gulf Harbour, north of Auckland.[10] You are 44 years old. You are a design engineer by trade, and you are currentlyemployed as a labourer by a civil engineering company, completing water and stormwater network replacement.[11] The PAC report states that you have conveyed a genuine sense of remorse withregard to your offending and that you have apologised for any harm you may havecaused. The report-writer says that you convey a good level of self-awareness and7 Section 7(1) (a),(b),(e) and (f).8 Sections 7(1)(h) and 8(g).understand the significant negative impact your choices have had on yourself andthose around you.[12] You have acknowledged the harm that your offending caused and have takenresponsibility for the damage methamphetamine use and dealing does, both to yourselfand the people close to you. You told the report-writer that your life began to "fallapart" during lock down in March 2020, when you lost your driver's licence and yourjob. You say you initially "dabbled" in the drug, but your addiction became "worseand worse and [you] fell deep into that world".[13] The PAC report confirms my finding in the sentence indication that you werea low level, street supplier who did not profit from your dealing.[14] You now have a new driver's licence, a bank account and a solid supportnetwork and you appear to be moving forward in a much more positive direction. Youtold the report-writer that you now have "the cornerstones of life in place".[15] The report identifies drug-use as the only relevant offending-related factor.You self-report that you have not used methamphetamine since you were arrested onthe current charges in December 2020.[16] The report recommends that you attend and complete an alcohol and drugtreatment programme with an approved agency to enable you to continue living inyour current situation and to support you to cope with the stresses and triggers ofeveryday life. You present as motivated to complete addiction recovery treatment.Discussion[17] The Court of Appeal in its decision Zhang v R held that the impact of addictionas a trigger for drug offending should be carefully considered as a mitigating factor atsentencing.9 I accept – based on the contents of the PAC report – that your addictionto methamphetamine and GBL was causative of your offending. You told the PACreport-writer "I didn't touch any money. I never profited. It supplemented my own9 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [139] – [150].supply. I was helping friends out to make a connection [to a supplier], in thatworld, it is normal behaviour". As I noted in your sentence indication, you had a lesserrole in the offending and dealt in small quantities at street level. You offended tofacilitate your own drug use and there is no evidence that you expected or achievedany financial gain from your dealing.[18] You have provided the Court with an assessment prepared by an addictioncounsellor, Poovanthran Naidu. He reports that you started using class A drugs(methamphetamine and GBL) six years ago. You started dealing small amounts tomaintain your habit and addiction. You told Mr Naidu that you have been drug-freewhile on bail and you are willing to undergo drug testing to prove it. The assessmentis generally positive and indicates that you show insight into the harm caused by youroffending and you are motivated to change your behaviour and engage with addictiontreatment programmes. Mr Naidu recommends that you attend self-help groups in thecommunity, such as Narcotics Anonymous, as well as individual addiction counsellingto maintain your current abstinence.[19] The Court of Appeal in Zhang held that "addiction may logically give rise to adiscount of up to 30 per cent of the sentence depending on the extent to which itmitigates moral culpability for the offending", and commented that this figure was notnecessarily to be regarded as an upper limit.10[20] In Zhang, the Court allowed a discount of 30 per cent for personalcircumstances in relation to the lowest level offender in the group, Ms Crighton. Thisdiscount reflected a combination of factors which the Court found wereinterconnected: childhood trauma and abuse; intimate partner violence; mental healthissues, including depression, anxiety and PTSD,11 and methamphetamine addiction.[21] In your case, Mr Cole, addiction is the only relevant factor. Mr Naidu reportsthat you had a stable childhood, without any experience of alcohol or drug abuse bythe adults in your life. You have had good job opportunities and travelled abroad. In10 At [149].11 Post-Traumatic Stress Disorder.these circumstances, I consider that a discount of 15 per cent is appropriate to reflectthe extent to which addiction was a causative factor in your offending.Restrictive bail conditions[22] Mr Dollimore on your behalf in his written submissions submitted you shouldalso receive a discount for time spent on restrictive bail conditions. I do not acceptthat submission. Your bail was subject to relatively standard conditions: residential;not to possess or consume drugs (other than prescribed or legal drugs); non-association; and not to go to a particular address. Today Mr Prentice appearing oninstructions from Mr Dollimore properly recognised that your bail conditions do notattract a discount and the submission was not pursued today.Sentencing calculation[23] At the sentence indication I adopted a starting point of 10 months'imprisonment for your offending, and allowed a discount of 20 per cent for a guiltyplea. As you pleaded guilty to all charges following the indication, this discount willbe allowed as indicated.[24] Given the information now before the Court, I am able to consider and applyfurther discounts for the following factors:a) Addiction: 15 per cent; andb) Rehabilitative steps taken (including relocation, full-time employment,driver's licence) and prospects of rehabilitation (strong family supportand full-time employment): 10 per cent.[25] If I were to impose a sentence of imprisonment, the length of the term wouldbe calculated in this way. The starting point of 10 months' imprisonment would beadjusted as follows to take into account matters personal to you: 20 per cent discountfor your guilty plea; 15 per cent discount for addiction; and 10 per cent for yourrehabilitative efforts and prospects of rehabilitation. This is an overall discount of45 per cent. When that discount is applied to the starting point of 10 months'imprisonment the end sentence would be five-and-a-half months' imprisonment.[26] I next need to decide whether the purposes and principles of sentencing can bemet by a sentence other than a sentence of imprisonment.Type of sentence[27] The PAC report recommends a sentence of Home Detention.[28] You are assessed by Corrections as having a low risk of reoffending and amedium risk of harm to others. The risk of harm to others reflects the very significantharm which methamphetamine is known to cause in the community. You havepreviously been subject to four community-based sentences and you are currentlysubject to a sentence of community work. Your ability to comply with conditionsassociated with a community-based sentence is assessed as medium, on account ofthree historic breaches of periodic detention.[29] Your sister's address is assessed as suitable for an electronically monitoredsentence. The occupants of the address have consented to supporting your compliancewith this type of sentence. You have already complied with bail conditions at theproposed address and you are fortunate to have family support.[30] Mr Prentice submits that a short sentence of Community Detention combinedwith a period of either Supervision or Intensive Supervision would be appropriate. Heobserves that a sentence of Home Detention may cause difficulties with your currentemployment. He tells me that you are very proud of your work and you wish to remainin your role. I accept Mr Prentice's submission that employment retention is animportant consideration.[31] Mr Whyte for the Crown submits that Home Detention is the appropriatesentence and he notes that steps you have taken with a counsellor were relatively latein the piece. I acknowledge the latter point made by Mr Whyte but this step hasnevertheless been taken by you and you are to be commended for that.[32] The Court must impose the least restrictive sentence which is appropriate in allthe circumstances. I consider that a sentence of Community Detention of threemonths, together with a period of 12 months of Intensive Supervision, would enableyou to continue the progress that you have made towards addiction recovery, while onbail.Result[33] Mr Cole would you please stand.[34] I sentence you to three months' Community Detention which will be subject tothe standard conditions in the Act. During the three month period of your CommunityDetention the following further conditions apply:(a) You are to live at [redacted] for the duration of the sentence ofCommunity Detention;(b) You are to be present at [redacted] between 8 pm and 5 am Monday toSunday inclusive for the duration of Community Detention; and(c) The first day of your curfew is today, 13 May 2022.[35] I further sentence you to 12 months of Intensive Supervision which will besubject to the standard conditions in the Act as well as the following special conditions:(a) You are not to possess, consume or use any alcohol or drugs notprescribed to you;(b) You are to attend and complete an appropriate Alcohol and Drugprogramme to the satisfaction of a Probation Officer. The specificdetails of the appropriate programme shall be determined by aProbation Officer; and(c) You are to submit to drug testing from time to time at intervalsdetermined by a Probation Officer.[36] The Crown offers no evidence against you on charge 7 (but that charge remainson foot in relation to other defendants). You are accordingly discharged on charge 7(which was one of the two supply charges amalgamated into one charge).[37] Stand down please Mr Cole._____________________________Gordon JR v COLE [2022] NZHC 557 [24 March 2022]NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FORA SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THEINTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE ISPROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGEDISMISSED. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3865734.htmlIN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2020-019-6031[2022] NZHC 557THE QUEENvYOICHI MARTIN COLEHearing: 24 March 2022Appearances: K Whyte for the CrownW N Dollimore for the DefendantJudgment: 24 March 2022JUDGMENT OF GORDON J[Sentence Indication]Solicitors: Crown Solicitor, HamiltonCounsel: Wayne Dollimore, Barrister, HamiltonIntroduction[1] Mr Cole, you appear for a sentence indication on the following charges:(a) Supplying a Class A drug (methamphetamine) (x 2);1(b) Supplying a Class A drug (gamma-butyrolactone aka GBL);2(c) Offering to supply a Class A drug (GBL).3[2] All charges are representative. This means that the offending occurred on morethan one occasion. You have been charged as a party to the three supply charges.4 Thismeans that you acted with others in pursuit of a common unlawful purpose.[3] Today in submissions Mr Whyte for the Crown, indicated that the Crown willamalgamate the two methamphetamine supply charges. Two further charges relatingto methamphetamine dealing were withdrawn by the Crown on 12 November 2021.5Alleged offending[4] For the purposes of this sentence indication, I rely on the Police summary offacts and the amended Crown Charge Notice dated 12 November 2021. You acceptthe summary for the purposes of this sentence indication. The summary states thatyou are one of a number of "street level suppliers" identified by a large-scale Policeinvestigation into the manufacture and supply of methamphetamine in the Waikatoregion.[5] Police intercepted 116 coded communications (59 text messages and 57 voicecalls) between you and two co-defendants concerning the supply of methamphetamineand money owed.1 Misuse of Drugs Act 1975, s 6(1)(c) and (2): maximum penalty life imprisonment.2 Misuse of Drugs Act, s 6(1)(c) and (2): maximum penalty 14 years' imprisonment.3 Misuse of Drugs Act, s 6(1)(c) and (2): maximum penalty 14 years' imprisonment.4 Crimes Act, s 66(2).5 See amended Crown Charge Notice, 12 November 2021: Sell/supply/administermethamphetamine; conspire to deal methamphetamine.[6] The specific charges arise out of the following incidents:(a) Supplying methamphetamine: Between 17 August and 28 September2020, you supplied methamphetamine on a total of three occasions.Quantity was specified on only one occasion, being 0.5 of a gram ofmethamphetamine.(b) Supplying GBL: Between 30 October 2020 and 4 November 2020, yousupplied an unspecified amount of GBL on one occasion.(c) Offering to supply GBL: Between 4 November 2020 and 15 November2020, you offered to supply an unspecified amount of GBL on threeseparate occasions. You advised customers that you had "drinks","waze" and "GBL" for $5 per millilitre.[7] When questioned by Police, you admitted to supplying a friend of a friend anunknown quantity on one occasion only.[8] You are 43 years old and you have previously appeared before the Court.Approach to sentence indication[9] Mr Cole, a sentence indication is not the same as a sentencing. It simplyindicates the type, range and/or quantum of the sentence a Court would likely imposeif you were to plead guilty.6[10] This indication will not reflect potential uplifts and discounts for relevantpersonal factors because this information has not yet been provided to the Court. Inparticular, a Provision of Advice to the Court report (PAC report) will provideinformation about your personal circumstances and background which are relevant toa court's assessment of your culpability, remorse and rehabilitative prospects. Thisinformation is only provided once you have either pleaded guilty or been convicted attrial.6 Criminal Procedure Act 2011, s 60.[11] In determining an appropriate sentence indication, I must take into accountcertain purposes and principles of sentencing. In your case, the need to denounce yourconduct, deter you and others from committing similar offending, and hold youaccountable for the harm done to the community by methamphetamine dealing, areparticularly relevant. The seriousness of the offending, indicated by the maximumpenalty of life imprisonment for the methamphetamine charges, is also relevant. Theharm caused to individuals, families and communities by methamphetamine dealingis well known. On the other hand, I also keep in mind the purpose of assisting yourrehabilitation and reintegration into society, and the need to impose the least restrictiveoutcome that is appropriate in the circumstances.Approach to sentencing for methamphetamine supply[12] The Courts are assisted in sentencing for methamphetamine offending by theCourt of Appeal guideline judgment Zhang v R.7 The Court of Appeal stated that thereis no longer a need to subdivide the guideline between supply, importation andmanufacturing of methamphetamine, as the harm caused is identical regardless. TheCourt of Appeal noted that the quantity of methamphetamine dealt with by the offenderremains a "reasonable proxy for both the social harm done by the drug and the illicitgains made from making, importing and selling it".8 The bands of offending set out bythe Court of Appeal indicate the appropriate sentence range in relation to the quantityinvolved:9Band one: < 5 grams Community to 4 yearsBand two: < 250 grams 2 – 9 yearsBand three: < 500 grams 6 – 12 yearsBand four: < 2 kilograms 8 – 16 yearsBand five: > 2 kilograms 10 years to life7 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.8 At [10(b)].9 At [125].[13] The role played by the offender nevertheless remains an importantconsideration when addressing the starting point.10 The Court of Appeal identified anoffender's role as falling into one of three categories:11First (and attracting a more substantial scale) there is the "leading role". Thisapplies where the offender is directing or organising and selling in acommercial scale and/or is closely connected to the source and/or has anexpectation of substantial financial gain. The second is the "significant role".That is where the offender has an operational or management function withina chain, and subordinates (who may have been recruited or intimidated by theoffender) and/or is motivated by financial or other advantage. The third tieris the "lesser role". Here the offender will probably have performed a limitedfunction under direction and/or may have been engaged by duress, naivety orother vulnerability.DiscussionAggravating and mitigating features of the offendingStarting point[14] The lead offence in your case, Mr Cole, is the supply of methamphetamine.The maximum penalty for this offending is life imprisonment. You have also beencharged with supplying and offering to supply GBL. The maximum penalty for thisoffending is 14 years' imprisonment.[15] The standard sentencing approach in cases involving multiple charges forsimilar offending is to set a starting point for the lead offence and then uplift for theother offending. Here, the lead offences would be the two methamphetamine chargesnow amalgamated into one charge. However, in your case, the Crown suggests that itwould be appropriate to set a global starting point for all the drug offending. On yourbehalf, Mr Dollimore agrees with that. I accept that is an available approach in yourcase.[16] I accept the Crown submission that the relevant aggravating features of theoffending in your case are as follows:10 At [118].11 At [115].(a) Variety of drugs: you supplied two types of Class A controlled drugs:methamphetamine and GBL.(b) Premeditation and planning: you actively sourced and supplied drugsusing guarded or coded language in an attempt to avoid detection bypolice.(c) Social harm: it is well established that methamphetamine causes harmwithin the community. The implications of commercial dealing are farreaching, and include addiction, violence, mental illness and poverty.[17] On your behalf, Mr Dollimore says that you supplied to a very limited numberof people and suggests this was "social supply".[18] The total identifiable quantity of methamphetamine attracts a starting pointwithin the lower region of band one of Zhang. This band indicates appropriate startingpoints range from community sentences to four years' imprisonment.[19] I am satisfied you had a lesser role in the offending. The quantity ofmethamphetamine which you allegedly supplied, the low number of transactions, andthe street-level activity place you in the lesser role category identified in Zhang.[20] The Crown submits that, having regard to both quantity and role, a globalstarting point in the region of eight months' imprisonment would be appropriate.[21] On your behalf, Mr Dollimore submits that a global starting point of sixmonths' imprisonment would be sufficient to reflect all the offending.[22] Neither the Crown nor Mr Dollimore has provided the Court with case law tosupport their submissions regarding the appropriate starting point for the offending.But I consider that both counsel have set the starting point too low.[23] In Aitcheson v R,12 Lang J on appeal considered a starting point of 15 months'imprisonment was appropriate. In that case, Ms Aitcheson had been convicted ofvarious charges relating to the supply of methamphetamine. The total identifiablequantity was 0.7 of a gram. The offending occurred while she was serving a sentenceof home detention.[24] Ms Aitcheson was sentenced in the District Court under R v Fatu,13 which wasthe guideline sentencing decision which preceded Zhang. In R v Fatu, the Court ofAppeal indicated that a starting point in the range of two to four years was appropriatefor offending involving less than 5 grams. That suggested that a minimum of twoyears' imprisonment was appropriate even for the lowest level of offending. In Zhang,the Court of Appeal changed the range for band 1 offending to include the possibilityof a community sentence and imposed a starting point of two years on one offenderwho had supplied a total of 3.75 grams. Returning to Aitcheson, Lang J found thatMs Aitcheson's offending was "commercial dealing at the very lowest level", whichwas significantly aggravated by the fact it occurred while she was serving a sentenceof home detention.14[25] Mr Cole, the quantity involved in your offending is extremely low, and similarto that supplied by Ms Aitcheson. But your offending did not occur while you wereon bail or subject to a sentence of any kind. In other words, that aggravating featurepresent in Aitcheson is not present in your case. A starting point at the lower end ofband 1 is appropriate.[26] In my view, a global starting point of 10 months' imprisonment is appropriateto reflect all the charges and is consistent with the sentencing decision in Aitcheson.Aggravating and mitigating features personal to the offender[27] As I have already said, a sentence indication is given without the benefit of aPAC report and other information. The Court of Appeal in Zhang identified certainmitigating considerations which are particularly relevant to methamphetamine12 Aitcheson v R [2019] NZHC 2858.13 R v Fatu [2006] 2 NZLR 72 (CA).14 Aitcheson v R above n 12 at, [8]-[9].offending: addiction, mental health, duress or undue influence; and social, cultural andeconomic deprivation.15 Insofar as any of these considerations are relevant to you,Mr Cole, they may warrant a discount at your formal sentencing if you were to pleadguilty.[28] Mr Dollimore indicates that he is likely at sentencing to put before the courtmaterials indicating:(a) your genuine commitment to rehabilitation;(b) your current employment situation;(c) your efforts to address your drug addiction issues; and(d) time you have spent on restrictive bail.Prior convictions[29] One personal factor which I am able to address today, and which can aggravateoffending is prior convictions. Your criminal and bail history is before me. Themajority of your convictions are for property offences and various breaches of courtorders between 1996 and 1999. Your most recent conviction is for burglary (over$5000) for which you received a sentence of 80 hours of community work.Mr Dollimore tells the court that this involved the theft of frozen food items from acool store. Because your prior offending is unrelated to the current charges and islargely historic, no uplift is required to reflect this history.[30] However, the Crown submits that your prior convictions preclude thepossibility of a discount for previous good character. I agree.Guilty plea[31] As for a guilty plea discount, if you accept this indication and plead guilty toall charges, you will be entitled to a significant discount. As determined by the15 At [137].Supreme Court in Hessell v R, the credit given must reflect all the circumstances inwhich the plea is entered, including the stage of the proceeding and the strength of theprosecution case.16[32] The Crown submits that, given the strong evidential basis for the Crown's caseagainst you, the discount should be within the range of 15 to 20 per cent.[33] On your behalf, Mr Dollimore submits that the discount should be in the rangeof 20 to 25 per cent. He says that this discount would reflect the prevailing challengesassociated with COVID which he says have made it more difficult to progress yourfile.[34] There is still considerable time until the scheduled trial but I do not considerthe guilty plea was made at the earliest of stages and there is also the context of astrong Crown case. In all the circumstances, I consider that a discount of 20 per centfor a guilty plea would be appropriate in this case.End sentence[35] If the starting point is 10 months' imprisonment and a discount of 20 per centfor guilty pleas is applied, that would result in an end sentence of eight months'imprisonment.Home detention[36] Mr Cole, I have indicated that your sentence will be a short-term sentence.17Although such a sentence means a non-custodial sentence may be available, I make itclear that the court, at this stage, is not in a position to address the suitability orotherwise of home detention or any other electronically-monitored sentence or acommunity-based sentence.16 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.17 Within the definition provided by the Parole Act 2002, s 4(1).[37] In the absence of a PAC report, I am not in a position to decide whether yourparticular circumstances would mean that a sentence of home detention or acommunity-based sentence would be appropriate.[38] However, in that regard I note that the Crown takes the position that, in yourcase, the end sentence will likely be within a range for the court to consider analternative to a sentence of imprisonment. On your behalf, Mr Dollimore says that acombination of community work and supervision would be most appropriate in yourcase.Result[39] Mr Cole, my indication to you at this stage is that I would sentence you to aperiod of imprisonment in the vicinity of eight months, with the possibility of homedetention, or a community-based sentence depending on the contents of the PAC reportand any other personal matters raised at your sentencing.[40] This sentence indication will remain open until 12 noon on Thursday, 31 March2022._____________________________Gordon J