R v Cook [2017] NZDC 16701 (28 July 2017)

Last Updated: 13 December 2017

IN THE DISTRICT COURT AT HAMILTON

CRI-2016-019-004480

CRI-2017-019-001229 [2017] NZDC 16701

THE QUEEN

v

_{CASEY JAMES COOK}

Hearing:	28 July 2017
Appearances:	T Needham for the Crown W Dollimore for the Defendant
Judgment:	28 July 2017

_{NOTES OF JUDGE A S MENZIES ON SENTENCING}

[1] Mr Cook, you are appearing for sentence today in relation to a total of nine charges which as outlined in the latest Crown charge list dated 21 June 2017 are charges 2, 3, 4, 5, 6, 9, 10, 11 and 12.

[2] The other charges 1, 7 and 8, I am invited to dismiss as the Crown offers no evidence and I do so in respect of those three charges. Charges 1, 7 and 8 under s 147

Criminal Procedure Act 2011 are therefore dismissed. There are also two police charges that are associated with these matters. Again, in respect of those matters no evidence is offered and they are also dismissed under s 147. They are the charges in

_{CRNs numbers ending 1795 and 1794.}

R v CASEY JAMES COOK [2017] NZDC 16701 [28 July 2017]

[3] The charges that then remain in terms of the most serious with maximum penalties are charges 11 and 12 which are charges of offering to supply methamphetamine and supplying methamphetamine both of which have maximum penalties of life imprisonment. Thereafter there are a range of drug related charges, including possession of utensils and cannabis. There is a charge of possession of explosives, possession of a knife and two receiving charges. Pleas of guilty were entered to the nine charges for which you appear for sentence in May of this year.

[4] Your previous history comprises some 10 previous convictions. Of those relevant to today there were two in 2016 which were comparatively speaking more minor charges. They attracted a penalty of community work and there were two further matters in 2006 that attracted a fine only.

[5] The summary of facts that has been provided is a detailed document. I considered the entirety for the purposes of today but I do not propose to go through all of the contents, the details of which will be known to you as well. The background to the charge of receiving, possession of utensils and possession of a knife followed a burglary in July 2016. There was a significant amount of jewellery stolen. On the same day your vehicle was stopped and a police check was undertaken in relation to the registration and ownership of the vehicle. You were pulled over as a consequence. In speaking to you the police observed a glass pipe used for the consumption of methamphetamine. You were removed from the vehicle and a search was then undertaken.

[6] As a result a number of items relating to methamphetamine were located. There was also a bag found which had a zip lock bag with 1.5 grams of methamphetamine, black digital scales, multiple clear zip lock bags and a cut down straw often used to load methamphetamine. Also in the vehicle there was a police radio scanner, radar detector, empty zip lock bags, mobile phones, a butane torch, two glass pipes and a folding knife in the driver’s door. A large amount of jewellery was found in the back of the vehicle and that was identified as having come from that earlier burglary.

[7] The second receiving charge describes events on September 2016. An associate of yours met with you and with your vehicle was located nearby. A considerable volume of items were loaded from the associate’s vehicle into yours. This was captured on CCTV footage. The items involved had been stolen and they were tools taken from a burglary valued at some $12,000.

[8] Later in September last year you were found driving your vehicle. Again, you were stopped by police on an unrelated enquiry. A search was undertaken and the police located 0.6 grams of methamphetamine, various quantities in three separate zip lock bags. Also found was a pipe used for smoking methamphetamine, two straws, a small set of digital scales, two cellphones and some cash in the driver’s door. A further $564 in cash was found on your person. Your property was then searched and there was located 0.7 grams of methamphetamine in zip lock bags, an air rifle, more snap lock bags, a tick book, six cannabis seeds and six grams of cannabis leaf and a

0.270 bullet. Also located there were tools identified as having been taken from an earlier burglary.

[9] The charges of offering to supply and supplying methamphetamine follow events between 26 July and 29 August when there was an analysis undertaken of text message data from a cellphone of yours. This illustrated that you offered to supply methamphetamine on eight occasions to four associates, the total being 31.25 grams of methamphetamine. This included a one-off transaction of 28 grams of methamphetamine for $14,000 which I will comment upon subsequently.

[10] There are various other offers identified. The text data demonstrated that you were offering to supply and supplying methamphetamine during the period in question. You sold various amounts ranging from 0.1 grams to 1 gram. There were records showing you occasionally allowed customers to tick up which would mean obtaining the drugs on credit. Text data revealed an attempt to supply methamphetamine on one occasion to a customer. The quantity was 0.25 grams. It could not be shown that that transaction proceeded.

[11] The analysis shows that between 21 January 2017 and 21 February 2017 you supplied methamphetamine on 13 occasions to six different customers. The amounts

involved ranged from 0.1 gram through to 1 gram. The known amount supplied totalled 4.4 grams.

[12] I have received a pre-sentence report for today’s purposes. There does seem to be a small inaccuracy in that report in that it suggests that your only previous conviction for drug related matters was in 2006. There in fact are the matters in 2016 that I mentioned. There is a description as to why you became involved in the drug scene. The report suggests that drug abuse has been the primary contributing factor to your offending and you conceded to the report writer that you had developed an addiction and need rehabilitative intervention. The report certainly indicates that you take ownership of your offending which is associated with your own addiction, that you want help, that you are motivated to rehabilitative measures. The recommendation in the pre-sentence report is one of home detention. That sentence would obviously come into play if there were a sentence of two years’ imprisonment or less as the end result and I have to say to you Mr Cook, that is not going to happen.

[13] I have received detailed submissions from the Crown. Those submissions address the required principles of s 7 and s 8 Sentencing Act 2002 and suggest that a concurrent approach to sentencing is appropriate. Aggravating features are identified as being the scale and duration of the offending and the commerciality. It is suggested in the submissions that the text data demonstrates that you were supplying or offering to supply on 25 occasions to 13 associates with amounts ranging from 0.1 gram through to 1 ounce or 28 grams. It is submitted that the other paraphernalia that has been found variously suggests that you were a busy street level commercial enterprise. The paraphernalia located included a tick list, multiple cellphones, police scanner, scales, point bags, $600 in cash as well as a total 3.2 grams of methamphetamine.

[14] In respect of the receiving, the aggravating features advanced by the Crown are the value of the goods. The jewellery shop suffered a loss of $10,000 worth of goods and a similar value of tools. You were found in very close proximity to these burglaries, six hours after the jewellery shop.

[15] Turning to the relevant case law, the Crown points to the Court of Appeal decision in R v Fatu1 which describes the various bands by way of guidance. Band 1 is low level, less than 5 grams, two years to four years’ imprisonment. Band 2, supplying commercial quantities, 5 grams to 25 grams, three years to nine years’ imprisonment. Bands 3 and 4 obviously apply to more large scale enterprises again. The Crown has also referred me to a number of cases, all of which I have considered. I note for the record R v Haushan, Mohamed v R, Vesy v Police, R v Young and R v Tua. Of those cases the Crown points to the R v Vesy decision which involved 20 identified text transactions over a three month period, supply of 4.3 grams of methamphetamine and a starting point of four years was considered appropriate in that case.

[16] The Crown argues that your circumstances are at the bottom end of band 2 in R v Fatu and warrants a starting point of four years to four years and three months’ imprisonment. The Crown argues that there is commerciality evident. That is with regard to the quantity of the methamphetamine supplied. In respect of the receiving charge the Crown argues that on its own it would attract a penalty of at least two years’ imprisonment. However in the interests of totality it is submitted an uplift of nine months would be warranted which would produce an overall starting point of four years, nine months to five years’ imprisonment.

[17] In terms of aggravating features, the Crown points to your past record, the fact that you offended whilst on bail and argued those two features warrant a further uplift which the Crown puts at four months. Acknowledgement for the guilty plea is recognised by the Crown. The submissions detail the sequence of events, including your first appearance in July of last year through to the pleas in May of this year. The Crown argues a 15 percent discount would be appropriate. Orders are then sought for forfeiture of the cash and destruction of the drugs, ammunition and drug related paraphernalia.

[18] Submissions by Mr Dollimore on your behalf take issue with certain aspects of the Crown’s submissions. One item in particular is reference to the 28 grams of

_{methamphetamine which the Crown says was offered to be supplied for $14,000. Your}

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

instructions to Mr Dollimore evidently are that the transaction suggested there was in jest and that was confirmed by the language such as the emoji, “LOL” at the end of the comment. That matter was discussed briefly prior to submissions. Your instructions to Mr Dollimore are that sentencing should proceed today and you do not want matters deferred to contest on a disputed facts basis those issues.

[19] I am therefore proceeding as I indicated to Mr Dollimore today on the basis that that information forms part of the relevant background to the offending. I would not be prepared to take out of consideration the reference to such a significant amount without evidence. It may be that the end result is not dramatically different as a consequence of that issue in any event.

[20] The Crown’s approach is a broader one in terms of the overall assessment as to where the starting point should be. Mr Dollimore on your behalf suggests that your circumstances are better characterised by describing you as supplying small quantities of drugs to friends for their personal consumption. That is to distinguish your circumstances from the greater degree of commerciality argued by the Crown.

[21] Mr Dollimore submits in the written submissions that you fall within band 1 of R v Fatu. Today he indicated some difficulty in the precise placement and at the end there may be no difference there being an overlap between the top end of band 1 and the bottom end of band 2. In any event it is submitted than an end result should be arrived at that would bring home detention into consideration, there being an address available with your father. Mr Dollimore has noted that your mother is here, you have family support.

[22] Mr Dollimore argues that the PAC report is a positive one, that you are a candidate for rehabilitative measures and you have established that by the steps you have taken while on remand. You have undertaken a range of courses. You have been proactive in what you have undertaken in prison and you say in your own letter which I have read that there has been a 180 degree turn about in your attitude and your life. You are keen to get out and get clear of drug involvement and to return to your family and lead a more positive life. As Mr Dollimore says, Courts hear those sorts of comments on a fairly regular basis. I have however read your letters and I note the

steps that you have taken which do confirm that there is some substance to what has been said. I therefore accept that there is justification for recognising In the overall assessment the fact that you are remorseful and that you have taken some steps yourself to start the rehabilitation process.

[23] I largely accept the analysis that has been advanced by the Crown although the actual figures are to be adjusted on my assessment. I do not accept that your offending can be downplayed to the extent that is suggested by Mr Dollimore in terms of how it is to be characterised. Realistically it is probably somewhere between his description of your offending and the commerciality argued by the Crown. Whether or not it was addiction driven, clearly there were commercial aspects to it including the tick bags, the radios, the multiple mobile telephones and various other characteristics that have been described in the submissions which elevate it beyond some simple, low key dealing with your friends.

[24] I need to determine an appropriate starting point in relation to these matters. I accept the Crown submission that this is a matter that is at the lower end of band 2 and I consider the appropriate starting point is one of four years’ imprisonment and that is where I propose to start. I agree that an uplift is warranted for the receiving and I would set that at eight months and I provide a further uplift in relation to your past record and the fact that this offending occurred whilst on bail. I set that at four months which produces an end total of 60 months or five years’ imprisonment.

[25] I accept that it is appropriate to reflect the remorse that has been shown and I therefore deduct six months which leaves an end result of 54 months’ imprisonment. For the guilty pleas that have been entered I deduct a further 12 months. That leaves an end sentence of 42 months or three years and six months’ imprisonment. That is accordingly the sentence that will be imposed on the two most serious matters charges

11 and 12, offering to supply methamphetamine and supplying methamphetamine, three years and six months’ imprisonment.

[26] The structure in terms of the balance of the charges starting with charge 2 is three months’ imprisonment, charge 3 one year, charge 4 one month, charge 5 one year, charge six three months, charge 9 one month, charge 10 six months.

[27] I also make an order for the destruction of the drugs, the ammunition and the drug related paraphernalia and forfeiture of the cash that has been found.

A S Menzies

District Court Judge

ADDENDUM

All sentences are concurrent.