R v Cochrane HC Whangarei CRI-2010-027-143 [2011] NZHC 1844 (7 November 2011)

Last Updated: 17 January 2012

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

_{CRI-2010-027-143}

THE QUEEN

v

BRIAN COCHRANE

PAMELA JOYCE COCHRANE

Hearing: 7 November 2011

Appearances: M B Smith for Crown

L J Postlewaight for B Cochrane

G R Anson for P J Cochrane

Judgment: 7 November 2011

_{SENTENCING NOTES OF PETERS J}

Solicitors: Marsden Woods Inskip & Smith , Crown Solicitor, PO Box 146, Whangarei email: [e-mail]

L J Postlewaight, P O Box 1394, Whangarei 0140 email: [e-mail]

Counsel: G R Anson, P O Box 248, Kerikeri 0245 email: [e-mail]

R V COCHRANE HC WHA CRI-2010-027-143 7 November 2011

[1] Mr and Mrs Cochrane, I am going to sentence you together, as much as what

I have to say applies to both of you.

[2] Mr Cochrane you appear for sentence having pleaded guilty to the following charges:

(a) two charges of conspiracy to supply methamphetamine, the maximum penalty for which is 14 years’ imprisonment;

(b) one charge of cultivation of cannabis, the maximum penalty for which is 7 years’ imprisonment;

(c) one charge of possession of a restricted weapon, the maximum penalty for which is 4 years’ imprisonment and/or a fine not exceeding $5,000; and

(d) one charge of possession of explosives, the maximum penalty for

which is 4 years’ imprisonment and/or a fine not exceeding $5,000.

[3] Mrs Cochrane, you appear for sentence having pleaded guilty to 12 charges of conspiring to supply methamphetamine. Each charge carries a maximum sentence of 14 years’ imprisonment.

Facts

[4] The charges you each face arise out of a Police operation in Northland in which the Police targeted persons they believed were involved in burglaries. Having obtained warrants to intercept telephone conversations and text messages, the Police discovered that the people whom they suspected of the burglaries were also involved in supplying methamphetamine. From the evidence the Police gathered, it became apparent that each of you had conspired with others, including your daughter Nicole, to supply methamphetamine, a class A controlled drug.

[5] In December 2009, the Police executed search warrants at the property you occupied. There they located, Mr Cochrane, several of the items which account for the charges against you. These included:

(a) A fully functional stun gun which you had next to your bed. That stun gun is a restricted weapon and apparently gives off a powerful electric charge when it is activated.

(b) A box containing six live shotgun cartridges. Mr Cochrane, your counsel has told me that those were left over from a period in which you held a firearms licence. I accept that explanation but it does not excuse the offending.

(c) Four cannabis seedlings and some cannabis seeds.

(d) Items related to drug use and drug dealing. The Police found sealable plastic bags which are commonly used for packaging cannabis and methamphetamine; a set of electronic scales disguised as a video cassette; and in the garden a roll of fresh “point” sized plastic sealable bags, which again are commonly used to package methamphetamine.

[6] It is common ground, however, that the Police did not find any methamphetamine at the property.

[7] In your case, Mr Cochrane the indictment states that the conspiracy to supply methamphetamine charges result from activities in March 2009 and then again in June 2009. The total quantity involved was 0.35 grams.

[8] In your case, Mrs Cochrane the indictment states that the charges result from activities between March and August 2009, with you conspiring to supply a range of people, either directly or indirectly, through your daughter Nicole. Counsel has informed me that there is agreement that I should proceed on the basis of a total weight of between 3.5 and 4.9 grams.

[9] In preparing for today I have considered:

(a) The summary of facts which apply to each of you. (b) The comprehensive pre-sentence reports.

(c) The many references from a range of people including Mr McKechnie, the Putts, Mr Bell, Mr Robertson, Mr Poutsma and Mrs Goodrick.

(d) The evidence as to the attempts that you have made of your own initiative to become drug free. In your case Mr Cochrane, that includes the letter from the Mid North Mental Health and Addiction Service, to which you went on your own initiative in August and September 2010 and it also includes the letter from Salvation Army Bridge Programme dated 13 October 2011, which states that you completed the eight week group intensive programme.

(e) In your case, Mrs Cochrane it is clear you have undertaken a range of treatments from different suppliers of addiction services. I have read the letter from Northland District Health Board dated 7 September

2010 which states an assessment of you in August 2010 revealed no dependence or abuse; a letter dated 16 May 2011 from Ngati Hine Health Trust which acknowledges your self-referral; a letter from the Bridge Programme which says that you completed that eight week intensive programme in May 2011 and had also completed the aftercare programme by 1 September 2011; you have undertaken clinical hypnotherapy, have had various drug tests all of which indicate negative results, and there is also a relevant letter from Dr Bronwyn Price of the Bay View Medical Centre dated 28 February

2011.

(f) There is also your own letter Mrs Cochrane which acknowledges that, although you cannot turn back the clock, you acknowledge your guilt and have changed your life for the better.

(g) I have also of course had the benefit of the written and oral submissions that have been made by the Crown and your own counsel.

[10] I want to come back to those references for a moment because they are a credit to you both. Each of them refers to the aptitude you have for hard work and your loyalty as employees; to your commitment to your community; to your efforts, which have been successful, apparently, to establish your own business; and the tragedy your entire family suffered with the long illness and then the death of your son David in 2007. As I understand it he was unwell for seven years and it was the stress and anxiety caused by his illness that got you started on this drug in the first place.

[11] Mrs Cochrane, in addition to that you have not previously appeared before the Court which is a factor which counts in your favour.

[12] Mr Cochrane, you have previously appeared before the Court. As far as I am concerned, the only one of your previous charges which would be at all relevant is the cultivation of cannabis one in April 2008 and I will come back to that.

Approach to sentencing

[13] What I have to do as regards each of you is a two stage process. The first stage is to identify a “starting point” which needs to reflect the inherent culpability and wrongdoing in your offending. The second stage of the exercise is to consider whether there are matters which relate to you personally which make it appropriate to increase or reduce that starting point, so as to arrive at the final sentence.

[14] To start, the first part of the process I need to bear in mind is the purpose of

_{sentencing you and in this particular case it is:}

to hold you accountable for harm done to the community by your

_offending;

to make it clear to you that you are responsible for that harm;

to denounce your conduct; and to deter others.

[15] Those who are involved in the methamphetamine trade, no matter on how small a scale, are committing serious crime. No one should be under any illusions on that score. This is because anyone who distributes the drug, whether in large or small quantities, whether for profit or not, is responsible for causing a great deal of misery in our community. You may not have turned your minds to this at the time of course, but you need to do so now. The misery which addiction to methamphetamine brings affects not only those who become addicted to the drug but their families and friends. Addiction to methamphetamine leads to crime and to loss of jobs; it ruins future opportunities and prospects and causes a loss of self respect and so on. It imposes a great deal of cost, financial and otherwise, on our communities. The consequences of even small amounts can be far reaching.

[16] I am also required to impose a sentence that has the least restrictive outcome possible, having regard to all the circumstances and to impose a sentence that reflects the gravity of your offending, and is broadly consistent with sentences imposed in other similar cases.

[17] In your case Mrs Cochrane, because you are facing 12 charges for the same offence, determining the “starting point” is relatively straightforward.

[18] Mr Cochrane, for you it is not so straightforward because you have pleaded guilty to several different types of charge. I have to identify a “lead offence” which

is most serious offending with which you are charged, and then to adjust that for the other offending. In your case the lead offences are the two charges of conspiring to supply methamphetamine.

[19] The starting point in relation to sentencing in any case involving dealing in methamphetamine is the Court of Appeal decision in R v Fatu.[1] In that case the Court of Appeal identified different bands of offending for manufacturing, importing and supplying methamphetamine.

[20] Although the weight of methamphetamine involved in any given case is an important factor, I still must have regard to all the circumstances of the case and not be guided solely by weight.

Mr Cochrane

[21] Mr Cochrane, counsel agree that your offending would fall within the lowest Fatu band and the starting point, if this were a case of supply, would have been about two years’ imprisonment.

[22] You have, however, been charged with conspiracy to supply methamphetamine. There is a difference between supplying and conspiracy to supply because supplying methamphetamine carries a maximum sentence of life imprisonment, whereas conspiracy to supply methamphetamine carries a maximum sentence of 14 years’ imprisonment. I have to have regard to the fact that Parliament has seen fit to prescribe a lower maximum sentence for a charge of conspiracy than for a charge of actual supply.

[23] There is no automatic discount to any particular level when an offender is sentenced on a conspiracy charge rather than a charge of actual supply. In some cases, there will be very little distinction between the culpability of someone who is

_{a conspirator and someone who is an actual supplier.}

[24] Because you are charged with conspiracy Mr Cochrane, I propose to reduce by 15 per cent the starting point on the two charges of conspiracy to supply methamphetamine. This is the same discount which your daughter received.

[25] Taking into account the discount of 15 per cent, the Crown has submitted a starting point of 15 months’ imprisonment is appropriate. I accept that submission.

[26] I then take into account your other offending, namely the cannabis charge, the possession of the shotgun ammunition and possession of the stun gun.

[27] The Crown submits that an uplift of seven months would be appropriate. I have come to the view that is too much in the circumstances. That is for these reasons.

[28] There was no element of commerciality in the cultivation of cannabis, and usually such offending would be punished by a fine or other non-custodial sentence.

[29] As for the stun gun, it seems to be common ground that you had that because you wished to protect yourself from a Mr Turton who had previously been to your home and threatened violence and who has been convicted of assaulting you. I take that into account and I also take into account the fact shotgun cartridges were leftover from a prior time. That is not to excuse that offending of course, but it does provide some relevant background.

[30] Taking those matters into account, I consider that an uplift of 4 months would be appropriate. Accordingly, the starting point in your case, before I get to stage two, is one year seven months’ imprisonment.

[31] There are no other aggravating or mitigating factors relating to the offending which I need to take into account.

[32] I must then consider whether a starting point of one year seven months’ imprisonment is a fair reflection of the inherent culpability of your offending. I am satisfied that it is.

Mrs Cochrane

[33] Mrs Cochrane, you also would fall within the lowest Fatu band. That band is between two and four years’ imprisonment for quantities of up to five grams. Weight is, however, only one matter to take into account. Your counsel urges me to proceed on the basis the weight I should rely on is 3.5 grams and no more, even though there seems to have been an agreed range. I am willing to proceed on the basis it was up to four grams.

[34] The Crown has referred me to a case of R v Tawhiri,[2] which also appears to have involved about four grams. In that case, the Judge adopted a starting point of three years nine months, although that was for supply.

[35] Your counsel submits that there are substantial differences between the facts of that case and the facts of this one. He submits that the more relevant comparison is what occurred with Jonelle Phillips and your daughter Nicole.

[36] Tawhiri is relevant because, aside from anything else, it makes it clear that anything to do with methamphetamine or any crime associated with it is serious. Even if I took the view that it was strongly relevant, I would need to have regard to the other sentences in this case. Ms Phillips was charged in respect of two grams, and a starting point of two years three months’ imprisonment was adopted. Nicole Cochrane was 10 grams and the starting point adopted was three years six months’ imprisonment.

[37] In those circumstances I consider a starting point of three years to be appropriate. I discount that by 15 per cent for the conspiracy element, giving a final starting point of two years six months’ imprisonment.

Factors relating Mr Cochrane personally

[38] I then turn to consider whether there is anything which should increase those starting points or reduce them. This is stage two of the exercise.

[39] Mr Cochrane, the Crown has referred me to several of your previous convictions. As I said, the only one I consider to be relevant is your offending in

2008, when you were convicted and sentenced to 200 hours community work for cultivation of cannabis. I do not seek to punish you twice for the same offence, but the fact that you were caught cultivating again tells me that you did not learn your lesson from that time. I consider an uplift of two months is appropriate for this prior offence and that takes your sentence to one year, nine months’ imprisonment.

[40] There are, however, several matters of mitigation which apply and which make it appropriate to reduce the sentence.

[41] There is your own effort to rehabilitate yourself. The evidence, such as it is, suggests that you have not used methamphetamine since you were charged. Your counsel tells me that this applies equally to cannabis. I hope that is the case, for your own sake. I note you have referred yourself to a drug and alcohol programme – not immediately, it has to be said but you have done it and you are to be given credit for that.

[42] I also take into account your guilty plea. Your counsel has urged me to allow the maximum discount for this of 25 per cent. The Crown has acknowledged that the final form of indictment was only settled recently, and once it was settled you pleaded guilty. In the circumstances I consider a discount of 20 per cent to be appropriate on account of your guilty plea, your efforts to rehabilitate yourself and the other evidence which as I have said is extensive as to your good character and personal qualities. This leaves me with a sentence of one year five months’ imprisonment.

Home detention – Mr Cochrane

[43] Given the end sentence I have arrived at for Mr Cochrane, I am obliged to consider whether I should impose a sentence of home detention.

[44] It is only in a rare case that a person who is involved in distributing methamphetamine or conspiring to distribute it will not go to prison.

[45] However, the pre-sentence report for Mr Cochrane recommends a sentence of home detention and says that he is at low risk of reoffending. That view from the Probation Service is consistent with the efforts to put all drug taking behind you.

[46] I am also influenced by the fact that, if you are sentenced to home detention, you can possibly resurrect the business that you and your wife established. It is in the community’s interest that you should do so. Most people do not get that opportunity Mr Cochrane and you should count yourself fortunate.

[47] For those reasons, I propose to sentence you to 10 months’ home detention on each charge, to be served concurrently. At the conclusion of this exercise, I will hear submissions on any other conditions which ought to attach to that sentence.

Factors relating to Mrs Cochrane personally

[48] Mrs Cochrane, the matters I have referred to which are mitigating factors relating to your husband apply equally to you. Your efforts to rehabilitate yourself and to become drug free have clearly been extensive. There is also the matter of your guilty plea after the negotiations that have taken place.

[49] I also take into account your evidence of good character and this includes, again, the many references which speak highly of you. Aside from anything else, it is apparent from those references that you did everything you possibly could to assist your son when he was so unwell and that, as I say, was over a very lengthy seven year period. That is not to in any way diminish your efforts, Mr Cochrane, which would also have been considerable.

[50] I also have your expression of remorse, which as I have said is plainly heartfelt. For these matters I am willing to allow a substantial discount of 25 per cent which brings me to a sentence of about one year ten months’ imprisonment.

Home detention – Mrs Cochrane

[51] As I have already said it is only in the most exceptional case that there will not be imprisonment on this type of charge.

[52] Equally, however, probation assesses you Mrs Cochrane at a low risk of reoffending. I am conscious you could assist in continuing to care for your granddaughter, with whom it is clear you have established a strong bond, particularly while her mother, your daughter Nicole, is not able to care for her. In the circumstances, although it is highly unusual, I propose to sentence you to 12 months’ home detention on each charge, to be served concurrently.

Orders and conditions

[53] Pursuant to s 347 Crimes Act 1961 I discharge Mr Cochrane in respect of count five in the indictment and I discharge Mrs Cochrane in respect of count four of the indictment.

[54] Pursuant to s 32 Misuse of Drugs Act 1975 I order forfeiture of $1,390 cash found and referred to in the summary of facts.

[55] I order the destruction of all drugs and drug related items seized during the investigation.

[56] Pursuant to s 69(1) Arms Act 1983 I order forfeiture and destruction of the weapon and ammunition.

[57] In each case, the commencement of the sentence of home detention is deferred and will commence on 8 November 2011. Each of you is to travel directly to the home detention addresses.

[58] Mr Cochrane is to serve his sentence at 333A Puketona Road, Haruru Falls, Paihia. This address has been deemed suitable for completion of the sentence. I also impose the special conditions set out in paragraphs one to six inclusive appearing on page two of the Department of Corrections Home Detention Appendix dated

2 November 2011.

[59] I also impose the Post Detention Conditions set out on page two of the Appendix, which are to undertake and complete the Salvation Army Bridge Alcohol and Drug Counselling Programme to the satisfaction of the Probation Officer and

treatment provider, to the extent they are not already satisfied in that respect, and to undertake and complete any other counselling or treatment to the satisfaction of the Probation Officer and Counsellor, the details of the treatment or counselling to be determined by Mr Cochrane’s Probation Officer.

[60] Mrs Cochrane, you are to serve your sentence of home detention at 857 State Highway 11, Okura. I impose all of the conditions set out on pages two and three of the Department of Corrections Home Detention Appendix dated 26 October 2011. This includes the Post Detention Conditions appearing on page three of the Appendix.

..................................................................

PETERS J

---

[1] R v Fatu [2006] 2 NZLR 72.

[2] R v Tawhiri HC Tauranga CRI-2007-070-1860, 25 July 2008.