R v Cook [2017] NZDC 12412 (12 June 2017)

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Hearing:	12 June 2017
Appearances:	T Needham for the Crown Sergeant L McMaster for the Prosecutor New Zealand Police A Murphy for the Prosecutor Department of Corrections M Sturm for the Defendant
_Judgment:	_{12 June 2017}

[1] Ross William Cook, you are for sentence and re-sentence on a number of matters.

[2] First, I sentenced you on 13 March 2017 to nine months’ home detention (judicially monitored) and 200 hours’ community work on representative charges of supplying and offering to supply methamphetamine and a specific charge of offering to supply cannabis. There were also police charges: possession of cannabis, possession of methamphetamine, possession of a pipe and possession of a knife.

28 November 2016 and I indicated that because of your professed commitment to rehabilitation from your methamphetamine addiction and noting that you had self- referred to the Cambridge Community House for counselling, I was not prepared to rule out a sentence short of imprisonment. I reached an end sentence of 16 months' imprisonment having regard to the totality of the offending before me on

13 March 2017. I then imposed a sentence of home detention and community work to reflect your commitment to your rehabilitation. That was in line with the recommendation of the probation officer for home detention and community work and I said then that this was because you had impressed Probation with your commitment to your rehabilitation. I also explained to you that the sentence would be judicially monitored so that the Probation would report to me. I said that if you slipped up again, if I did not like what I read in the reports, if I do not consider that you were committing yourself to the treatment programmes, that you were annoying your probation officer because of your attitude, you would be back before me and you could expect to go to prison. That you would get no second chance. That this was your last chance and that you needed to understand that “very, very carefully”.

[4] What happened then was that almost immediately you abused the opportunity and went straight back to dealing.

[5] On 27 March, just two weeks after I had sentenced you, the police executed a search warrant at your home where you were serving the sentence of home detention. You were with another person at that time. The police found some 2.8 grams of methamphetamine, a large number of zip lock bags, a satchel containing two large zip lock bags with 98 grams of cannabis, $1220 in cash, a glass methamphetamine pipe, a .22 rifle that had been cut down so that it became a pistol, ammunition for

that rifle, and an improvised explosive device consisting of a CO2 canister and a

wick. Your explanation to the police at the time was that you had to fund your own drug habit. In short, what happened was that you just carried on operating as a street-level drug dealer with methamphetamine and cannabis primarily to fund your own habit, the habit that has seen you in the position you now find yourself.

[6] One of the difficulties that we have when sentencing people such as yourself who say that they are an addict, and that the only reason that they offended was to get cash to fund their habit, is that you are creating more people who are addicted to the drug and so the methamphetamine problem that we have in this community explodes exponentially if the Courts take a soft approach to people who have to fund their habit by dealing in the drug. The fact that you did it within two weeks of being given the opportunity to stay out of prison, of course, tells me that you thought you were too smart. You thought that you had managed to put one over the Court. You thought that you were too smart to be caught and so you continued dealing in this pernicious trade of methamphetamine as well as cannabis.

[7] What I am appalled about is the fact that this continued at the home at which you were serving home detention. Now I recall the earlier pre-sentence report indicated that this was the home of your parents and that they would not be present at the home during the day. You clearly sought to take advantage of that.

[8] It is important that the sentence that I impose upon you today not only sends the message to you but also sends the general message out that those who deal in drugs can expect to go to prison unless there are exceptional circumstances. There were on the last occasion. There was your commitment to rehabilitation. Indeed the Crown contends and argues for the re-sentencing on those earlier charges to ignore the six months discount that I gave you last time because of your then stated commitment to your rehabilitation. In the end, there seems to be still some hope that you will be able to beat this addiction and turn yourself around but that is going to require you to examine your life very, very carefully while you are in prison and make the determined decision that when you come out that you are not going to go back to this lifestyle. Certainly, with the record that you have now acquired, you will be looking at very lengthy sentences of imprisonment and indeed of course the maximum sentence for possession of methamphetamine for supply is life imprisonment. That is what you are getting yourself into but more importantly you are destroying your life and you are causing havoc with the lives of your family and this all at the age of 26.

[9] What I propose to do to mark the seriousness of this offending is to impose the sentence at the same level as the sentence that I was going to impose last time except for the fact that I went to home detention. This means that I am not going to adopt the approach sought by the Crown but it will certainly mean that I will not give you any credit for what I think is still the possibility of some hope of recovery for you because I have already taken account of that.

[10] So, on the application to cancel the sentences of home detention and community work, you do not oppose that application and both of those sentences are cancelled. In their place, 16 months' imprisonment. The sentence did not have an opportunity to even get started before you re-offended so the full sentence will be imposed on that. On the charge of breaching the sentence of home detention, because you failed to comply with a special condition of that sentence, namely that you possessed cannabis and methamphetamine, two months' imprisonment.

[11] I then turn to the offending relating to 27 March which arguably of course should include the sentence of breaching the sentence of intensive supervision. I am going to take the same starting point as I did with the earlier offending for the possession of methamphetamine for supply of 28 months' imprisonment. That is at the lower end of the scale for a street dealer, which is between two years and four years’ imprisonment, but there are some aggravating features here that need to be taken account of.

[12] The firearm is a matter of particular concern, primarily because it was clearly not used for any other purpose than for protection. A cut down .22 with ammunition for it is a frightening weapon, easily concealed and clearly you had that to protect your stock and trade and the cash that you were making. For the possession of the firearm, the ammunition and this curious CO2 cylinder with a wick attached, I lift that sentence by six months. For the cannabis dealing, a sizeable quantity of cannabis and of course you have a previous conviction for cannabis dealing, a further uplift of nine months. The fact that you were on an existing sentence must be

brought into account as well and I lift that by a further three months. That brings me to 46 months or three years, 10 months' imprisonment for that. You are of course

entitled to credit for your guilty pleas and that I will apply at the full 25 percent, notwithstanding that you were caught red handed.

[13] So the sentencing relating to 27 March 2017, a sentence calculation comes out to 33 months' imprisonment for that.

[14] Rather than provide cumulative sentences, what I will do is simply impose one sentence that covers all the offending and that will be for a sentence of four years and one month. That is of course reached by adding the 16 months to the 33 months.

(b) On the new charge of possession of methamphetamine for supply, taking that as the lead charge for all matters, you are sentenced to four years one month’s imprisonment. In my view, that is the shortest sentence I can impose upon someone who has been such a persistent offender.

(e) Possession of the firearms on each of those three charges, six months' imprisonment.

(f) There is an order for destruction of all of the drug paraphernalia, the firearm, ammunition and the explosive device.

(g) There is also an order that you do not oppose for the forfeiture of the cash amounting to $1220. That forfeiture is under the Misuse of Drugs Act 1975.

[16] So the all-up sentence is one of four years one month’s imprisonment. All I can hope is that when you come out you will realise that there are other ways to live your life than being a drug dealer.

District Court of New Zealand

R v Cook [2017] NZDC 12412 (12 June 2017)