R v Cossey [2017] NZDC 16228 (25 July 2017)

Last Updated: 23 January 2018

IN THE DISTRICT COURT AT HAMILTON

CRI-2016-075-000634 [2017] NZDC 16228

THE QUEEN

NEW ZEALAND POLICE

v

_{ROMAN JOHN COSSEY}

Hearing:	25 July 2017
Appearances:	T Needham for the Crown Sergeant M Frost for the New Zealand Police R Barnsdale for the Defendant
Judgment:	25 July 2017

_{NOTES OF JUDGE P R CONNELL ON SENTENCING}

[1] Mr Cossey you know you are for sentence today in relation to three charges that reflect periods of selling of methamphetamine by yourself and one charge of being in possession of a pipe for the purpose of using methamphetamine. There is also from the police point of view a charge that you drove while your licence was suspended.

[2] The way things have occurred is that your offending came to light as a result of production orders against your mobile phone. You were supplying methamphetamine in the Coromandel area between 1 December 2015 and

14 November 2016. They were offences that were investigated by enquiry through

Facebook. There then was a further period of offending between 20 August 2016 and

_{16 September. The estimated supply was somewhere between 56 to 112 grams.}

THE QUEEN v ROMAN JOHN COSSEY [2017] NZDC 16228 [25 July 2017]

[3] Then post you being arrested, you continued to then sell methamphetamine between 15 November 2016 and 28 February 2017. This was all at Kerepehi, because what you did once you were on bail for the first lot of offending you ended up carrying on sales by people turning up at your home. You were effectively selling methamphetamine through the bedroom window and in terms of the range that has been estimated that you sold by carefully looking at your transactions, carefully considering the duration over which they occurred and your culpability, your responsibility for the sales, the range estimated is somewhere between 56 to

112 grams.

[4] If you look at the total of the methamphetamine sales it can be said with some confidence, given the very conservative estimates by the police, that you were somewhere between 108.5 grams to 322 grams of the drug. As I have said to counsel in terms of determining just where the sentencing should sit whilst having regard to that very wide band, I have come to a conclusion that it is somewhere in the higher of band 2 or the lower end of band 3 of the Court of Appeal decision R v Fatu1. That is a sentence guide to this Court as to how these matters should be dealt with. That was a case where for low level supply a term of two to four years’ imprisonment was warranted. You are not in that level. You are much higher than that. Band 2 in Fatu suggested that supplying commercial quantities of methamphetamine between five to 250 grams was somewhere between three to nine years’ imprisonment and then band 3 was supplying large commercial quantities,

250 grams to 500 grams, that was eight to 11 years’ imprisonment. You have to appreciate that I have to follow the guidelines set by that higher Court than this one and that is the way the system works.

[5] I consider you are somewhere between that band 2 and band 3, in other words certainly upper level of band 2. No question of it because of the total quantity sold and that is taking a very conservative estimate of all of this. The approach to sentencing in effect has to be pretty much a concurrent one and if I am taking a

_{concurrent approach then I have to consider that you are somewhere in that higher}

1 R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA)

range between 108 grams up to the level that has been submitted to the Court by the

Crown.

[6] There is a need to look at some case summaries and that is again looking for some guide from higher Courts as to what the approach should be. R v Phillip2. It was an unsuccessful appeal against a sentence of nine years and six months’ imprisonment for two charges of supplying methamphetamine and a charge of possession of methamphetamine for supply. That involved the supply of at least 336 grams of methamphetamine and the offender on that occasion was said to occupy a high position in the supply chain. The sentencing Judge noted that it fell within the low to middle range of band 3 and the starting point was a nine year term. As I say the Court of Appeal did not consider there was anything out of line or out of range with that starting point. The other decision I have looked at is Wire v Police3 and again that was an unsuccessful appeal of a sentence of three years’ imprisonment for charges of supplying class A methamphetamine and it gives simply a case where it is somewhat lower than your own. The communications picked up on a cellphone were over a period of about five weeks. The police were able to say there were 48 instances where there was an offer to supply methamphetamine in that case. The amount was 42 grams and approximately 70 grams of methamphetamine given all the consideration to that case that was given to it selling through text messages there was no ability by the Court to interfere with a four and a half year starting point in that case and I am simply looking at it to look at the extremes and range of sentences imposed in other cases.

[7] In this case you know that the Crown submission is that there were aggravating features of premeditation, the scale of the offending and the Crown submit that the offending falls within band 3 of Fatu. With reference to case law they suggest a starting point in the range of nine to 10 years’ imprisonment would be appropriate. In this case they seek an uplift to take account of your repeated offending particularly while you were subject to bail. That is always going to be an aggravated feature of any sentence. They accept that you are entitled to a full 25 percent credit under the

_{law as R v Hessell}4 _{has decreed it and that is because of your early guilty plea, you get}

2 R v Phillip [2017] NZCA 129

3 Wire v Police [2013] NZHC 2202

4 _{R v Hessell [2010] NZSC 135}

something of a discount and you have saved the cost of trial and that is another important aspect of that discount. They are seeking a minimum term of imprisonment of 66 percent.

[8] Mr Barnsdale on your behalf has raised the point that it is not really for the Court to have a guess at just where the amount that you sold actually sits. We have spoken at some length between counsel over this issue because quite clearly in terms of the ranges of amounts sold by you the Court is in a difficult position, because it is a decision to be made as to whether this is in band 2 or band 3. I have come to the conclusion it is somewhere sitting in the middle of those, the top of band 2 through lower end band 3 and I will impose a starting point of imprisonment having that in mind. It is a difficult situation for the Crown. The case is one where they say do not just look at the volume of drugs sold, they say look at the time over which the selling took place and I have to have regard to that especially as I look at the three charges, so really an extension of time over a lengthy period, the commerciality of it was high. You cannot get away from that. There was a large volume sold no matter which range you might want to put it in. We know there is a minimum of 108 over that period in total. That is a substantial quantity and to sell that in the way that you did is certainly commercial. There is no question of it and I see you as the principal offender. There was no one else assisting with all of this. You were someone who was selling a high level for a long period of time and you have to accept the consequences of that unfortunately for you.

[9] Mr Barnsdale’s submission at the end of the day is that this is somewhere in the upper range of band 2. He says somewhere between six to eight years. The Crown are saying nine to 10 and that summarises in effect the position of both parties. A concurrent approach is desirable I have considered and the lowest range is 108.5 grams and that to me would be wrong to simply say that should be the figure fixed by the Court because the highest range the police say, this was in terms of weight sold was

322, and that had a starting point of eight to nine years.

[10] There is something of a mid-point in the approach that I take so what I am going to do is on the offending between 15 November 2016 and 28 February 2017, (that is the lead charge for the purposes of this sentencing) and in my view there should be a starting point of eight years’ imprisonment. There will be an uplift to take account of the other offending between the other two periods that are in the charges. That is an uplift of one year and there equally should be an uplift in my view for the fact you were offending on bail and that would be six months. You are looking at a starting total of nine years and six months. You are entitled to a discount of 25 percent for your plea of guilty on that and I will make that a discount of two years and six months. You will appreciate taking that off the nine and a half years takes you to a seven year term of imprisonment.

[11] I do not intend in this case to impose a minimum term of imprisonment and I do not because I accept that this is a case where I made an allowance for an uplift on the offending whilst on bail. I have to consider the principle of totality in all of this and I think it is enough to say that it is a seven year term imposed without any minimum term of imprisonment.

[12] There is an order for the destruction of all methamphetamine and equipment and monies found in respect of your sales by the police. Other than the terms of imprisonment imposed on the other matters and for 1 December through to

14 November, in my view there should be a six year term less the discount, so that will be an 18 month discount, so that is a four and a half year term and on the selling between 20 August 2016 and 16 September 2016 the same term, four and a half year term. That is what will go against those charges but the total is one of seven years, taking into account all of that offending.

[13] There will be a conviction and discharge in respect of the charge of being in possession of a pipe. On the driving while suspended, given what has happened here, I am going to convict you and you will be disqualified for a period of six months. No further penalty.

P R Connell

District Court Judge