THE QUEEN v MARK DAVID CORONNO [2001] NZCA 369 (6 December 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 366/01

THE QUEEN

V

MARK DAVID CORONNO

Hearing:	6 December 2001
Coram:	Blanchard J Robertson J Hammond J
Appearances:	B Davidson for Appellant F E Guy for Crown
Judgment:	6 December 2001

judgment of the court DELIVERED BY ROBERTSON J

[1] Mark Coronno appeals against a sentence of two and a half years imprisonment imposed in the High Court at Wellington on 19 October 2001 after he and a co-accused Geoffrey George Ridout pleaded guilty to a joint charge of being in possession of cannabis for supply.

[2] Mr Coronno was the driver of a motor vehicle which was stopped by the police on State Highway 1 near Marton on the evening of the 29^th of March 2001 for a minor traffic infringement.After the police officer noted a strong smell of cannabis coming from the vehicle a search was conducted.In the car they found six clean sacks of wet cannabis which had an estimated wet weight of 75 kilograms, an estimated dry weight of 12.4 kilograms and a value which was not disputed at between $70,000 and $80,000.

[3] The sentencing Judge described the circumstances of the two men as follows:

You, Mr Coronno, have explained that Mr Ridout asked you to assist him to recover his cannabis and transport it to Wellington as a one-off event for $5,000.If that were so, you had to know you were lending yourself to serious criminality.You say you agreed to enable you to finance debts mostly resulting from your gambling problems.However, you were certainly prepared to lend yourself to, and play a substantial part in, the offending.You point to the fact that despite numerous previous offences you have no previous drug offences.You are 38 years of age.To your credit you have voluntarily sought help for your gambling problems since this offending.You have excellent references, despite the extent of your offending, most of which is over 10 years ago.

You Mr Ridout, are 47 years of age.You say you have an addiction to cannabis and were growing it for that reason and to relieve alleged arthritic pain. There is some substantial support for that suggestion.You say you stumbled upon the particular cannabis in your joint possession by chance when yours was not ready for harvesting.Mr Coronno supports that.Unlike Mr Coronno, you do have prior drug offending, although it is of no great relevance for present purposes as the more serious of the two offences was the conviction for possessing cocaine for supply, and that was as long ago as 1989, with the offence of simple possession of cannabis last year.To your credit you express a willingness to address your cannabis addiction.

[4] The Judge identified the offending as falling within the upper end of category two as identified by this Court in R v Terewi [1999] 3 NZLR 62 and took as a starting point for the offending a sentence of three and a half years imprisonment.

[5] The heart of the appeal is encompassed by counsel in written submissions when he said:

The real complaint relates to insufficient credit for the Appellant's plea of guilty and for the Appellant's lesser role in the offending.Ultimately the submission is that had sufficient credit been given for those factors that a sentence of 2 years imprisonment or less could have been justifiably reached and if so then an issue arose as to leave to apply for home detention or possible suspension of the sentence.A reduction by at least six months would not be tinkering with the sentence; but even if that was considered to be the case it would be as a result of the application of a legitimate sentencing principle as to the sufficient and proper allowance for a plea of guilty and lesser involvement.

[6] The sentencing Judge having concluded that they were "both in it together" and on the basis that it was not possible to differentiate between them in respect of the starting point, dealt with each man separately and said:

Mr Ridout, you were obviously the primary offender, even on your own version of events, and you do have the prior drug offending; so you were on notice as to the consequences of coming before the courts for drug offending.An allowance for the guilty plea will be made of six months.That results in your being sentenced to three years' imprisonment.

Mr Coronno, you are undoubtedly the secondary offender and you have no previous drug offending.It is appropriate, therefore, that there be some additional allowance for those circumstances in addition to the plea of guilty. You are therefore sentenced to two and a half years' imprisonment.

[7] The first issue is whether six months was sufficient recognition of the plea of guilty.It was less than 15 percent.

[8] The question of discount was recently considered by this Court in R v Woolley CA02/01, 23 July 2001 where it was noted:

A plea of guilty has long been recognised by this Court as ordinarily mitigating culpability and justifying a reduced sentence.In R v Taylor [1968] NZLR 981, 987 this Court quoted with approval the statement of Edmund Davies LJ in R v de Haan [1968] 2 QB 108, 111 when he said that:

[a] confession of guilty should tell in favour of an accused person, for that is clearly in the public interest.

This Court confirmed that recognition of the discount for a plea of guilty in R v Ripia [1985] 1 NZLR 122, 128 where R v Roberts [1982] 1 WLR 133 (CA) and R v Fraser (1982) 4 Cr App R (S) 254 are also cited.

Three reasons for the reduction were expressed in R v Strickland [1989] 3 NZLR 47, 51 by Richardson J (as he then was) as:

[I]t spares the victim the ordeal of giving evidence; it saves the State the time and expense of a defended hearing; and it may be evidence of the offender's acceptance of responsibility for wrongdoing and contrition.

What that allowance will be will depend on the particular circumstances including the nature of the offences, the strength of the Police case, the likely length of the trial which is obviated, the stage at which the guilty plea is entered and whether the plea is considered by the Court to reflect genuine remorse.In R v Mako [2000] 2 NZLR 170, 176 this Court said that "pleading guilty should attract a meaningful discount" but noted that the Court:

Has resisted laying down any specific quantum or proportion for such discount because of the widely varying circumstances in which it might be entered. Generally, however, it is accepted that the earlier the plea the more the discount.

[9] In the present instance the appellant was arrested on the night of the offending.He made a request on 20 August under Section 153A of the Summary Proceedings Act 1957 which was prior to depositions.There was delay occasioned by disputes about the weight and value which mainly affected the co-accused.Although as the Crown has noted there was always a strong case, in terms of the principles and authorities it appears that the percentage reduction was less than generous.This reduction is arguably outside the accepted range.There is the potential consequence that the message sent to persons who are receiving advice as to whether to plead guilty will be that there is nothing of significance to be gained by pleading guilty.

[10] The second issue raised was the appellant's lesser involvement in the offending.Mr Coronno swore an affidavit which was available to the sentencing Judge as to his degree of involvement in the offending.It said:

My involvement arose a few weeks before my actual apprehension on 29 March 2001.I was asked by my co-prisoner Mr J Ridout to assist with the removal of some cannabis from the bush near Taupo and with its transportation to Wellington.

This was not in dispute and as reflected in the Judge's notes on sentencing was the rationale for a further reduction of six months.Ms Guy for the Crown submitted that because he entered a plea of guilty he necessarily accepted the summary of facts.That is not the case in every instance particularly when as in this matter there was a clear and unchallenged assertion of a lesser involvement although still a factual situation which encompassed all elements of the offence charged.

[11] Counsel on his behalf argued:

His affidavit plainly showed that he had a lesser involvement in the offending, essentially to assist in the harvesting and transport to Wellington of the cannabis.He was to have no role whatsoever in its further distribution in Wellington.Although the Judge accepted that the Appellant had a lesser role in the offending, it is submitted that the credit of 6 months given for that lesser role is insufficient.In practical terms the difference in sentence between that of the Appellant and the principal offender Ridout is marginal and insufficient, it is submitted, to properly reflect the differing degrees of involvement.

Absolutely no evidence of any greater degree of involvement beyond that deposed to by affidavit:

* no prior drug convictions

* nothing located at house

* no proceeds.

[12] Section 66 of the Crimes Act 1961 provides that everybody that actively and knowingly assists, commits an offence.This was undoubtedly the case with Mr Coronno.It is not disputed that he had only a defined and finite involvement in this criminal offending.We are persuaded there is substance in the complaint that in those circumstances the reduction of merely six months as compared with the principal offender is an insufficient recognition of their different roles.

[13] The third ground of appeal was that there was no identifiable allowance given for this man's personal circumstances which were said to include that he had:

* no prior drug offending

* excellent references

* stable family relationship

* voluntarily sought assistance for gambling addiction which was seen as the reason for his involvement in the offending

[14] It has been said by this Court on many occasions that particularly in the area of drug peddling, personal circumstances can have little effect.The position of Mr Coronno was unusual in that although he had some previous offending, at 38 he appeared for the first time on a drug related matter.This adds substance to his claim that this was opportunistic involvement as an easy way to get funds to deal with his overall personal and domestic circumstances. None of that makes it excusable but it highlights the different involvements and culpabilities which can emerge.

[15] While none of these factors are capable of precise analysis and determination we are satisfied that when they are taken in combination the overall reduction from the proper starting point of three and a half years imprisonment was insufficient.This man's actual criminality, culpability and response could adequately be dealt with by a sentence of two years imprisonment.

[16] That requires us to consider issues which arise in respect of all sentences of not more than two years imprisonment.

[17] The first is whether we should suspend the sentence.We consider that suspension would not be appropriate in light of the applicable principles.

[18] This was a willing involvement in an important aspect of a commercial cannabis operation.Even accepting that he was only to act as driver cum assistant for the journey between Wellington and the growing plantation, it was offending where the need for condemnation and deterrence was high.People who are prepared to become involved in any aspect of drug distribution for monetary gain forfeit the right to be in the community.A suspended sentence would send quite the wrong messages and we decline to order suspension.

[19] The issue of home detention is different.There is nothing additional advanced by the Crown or in the circumstances of the offence which should preclude this man making an application in the normal way for home detention. In terms of the Criminal Justice Act 1985 leave is granted for an application to be made.

[20] The appeal is accordingly allowed.The sentence of two and a half years imprisonment is quashed.In its place Mr Coronno is sentenced to two years imprisonment.Leave is granted pursuant to Section 21D of the Criminal Justice Act 1985 for him to apply for home detention.

Solicitors

Crown Law Office, Wellington