R v Coe [2012] NZHC 3242 (3 December 2012)

Last Updated: 11 December 2012

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-021-468 [2012] NZHC 3242

THE QUEEN

v

STEVEN MARK COE

Charges: Possession of cannabis for supply; Unlawful possession of firearm

Plea: Guilty

Counsel: SA Law for Crown

R Rai for Prisoner

Sentenced: 3 December 2012

Cannabis – 1 year 9 months’ imprisonment

Firearm – 4 months’ imprisonment

(terms cumulative)

_{SENTENCING NOTES OF BREWER J}

SOLICITORS

C&M Legal (New Plymouth) for Crown

_{Till Henderson (Stratford) for Prisoner}

R V COE HC NWP CRI-2012-021-468 [3 December 2012]

Introduction

[1] Mr Coe, you are being sentenced today because you have pleaded guilty to one charge of possession of cannabis for the purpose of supply and one charge of unlawful possession of a firearm. Those offences carry maximum penalties of eight years’ imprisonment and four years’ imprisonment respectively.

[2] My job is to see where your case comes within the spectrum of sentences in this area. You are being sentenced here in the High Court because, on 14 August

2012, District Court Judge Roberts refused to sentence you and transferred the case to this Court for sentencing.

[3] I can set out the factual background fairly briefly.

Facts

[4] On 2 May 2012, the Police executed a search warrant at your address in Patea. There they found a .22 rifle, with the bolt, in the wardrobe of a bedroom. There was an empty magazine present and six rounds of ammunition. Located in the kitchen was a plastic bag containing a further 11 rounds of ammunition for the rifle. Of course, you do not hold a current firearms’ licence.

[5] Found in the same wardrobe was a 20 litre bucket which contained four shopping bags full of cannabis head. Also located in the wardrobe were a further three plastic bags containing cannabis head. Further loose cannabis head and some cannabis leaf was located around your house.

[6] The cannabis head together weighed 1295 grams and the cannabis leaf

198 grams. I am not going to consider the cannabis leaf as having any part to play in this sentencing. I am aware that it is called cabbage. It has little or no commercial value and the quantity here is not worth worrying about. However, the cannabis head is conservatively estimated as being worth $7,500.

[7] Your explanation to the Police was that you had grown the cannabis that was found. You said that it was for your personal medicinal use. You did acknowledge that you would give some of it away and that you would swap some of it for food. As to the .22 rifle, you said that that had been left at your address a few weeks earlier by a friend.

Approach to sentencing

[8] Let me just explain how I have to look at these facts in order to come to a final sentence.

[9] Firstly, the cannabis charge and the firearms charge are different kinds of offences and they are not connected by the facts in your case. That means that I have to find a sentence for each of those charges separately. It also means that whatever sentence I hand down for each of those charges has to be served by you consecutively. That means I cannot just bundle the two together under one sentence. They have to be consecutive sentences.[1]

[10] That means that I have to look at each of the sentences separately and for each sentence I have to set a starting point. The starting point relates just to the circumstances of the offending. Once I have done that, I then look at your personal circumstances to see whether the starting point sentence should be adjusted up or down.

Purposes and principles of sentencing

[11] What I have to do at the beginning is set the starting points. I do not do that just by how I feel about the case. The first thing I have to do is look at the Sentencing Act 2002 because that sets out the purposes and the principles of sentencing which Parliament has said I have to take into account.[2] These include the need to hold you accountable for the harm done to the community by your offending,

_{and in this area the Courts have long said that the illegal use of drugs, particularly by}

vulnerable people in our community, does cause harm and that is a factor that I have to take into account. I have to promote in you a sense of acknowledgement and responsibility for that, and I have to denounce and deter your conduct. I also have to do what I can to assist in your rehabilitation, which is the main factor which goes to reducing the length of the sentence of imprisonment as much as possible. I must also consider the seriousness of your offending and I have to ensure that it is consistent with the sentences received by others for similar offending.

[12] You have not heard the lawyers today saying much about the case law that applies to your situation, but their written submissions go into quite some detail, referring me to other cases where people have been sentenced for similar offending. I have read those cases and I have taken them into account in the way that I approach your sentence.

Pre-sentence report

[13] I have had the benefit of reading your pre-sentence reports. I am sorry to say that you have got to this point in your life having accumulated quite an extensive criminal history. You have a number of previous drug related offences, but I see that none of them are for dealing in drugs, and really the main ones that I have to take into account are your 2008 convictions for cultivating cannabis and possessing a firearm without a licence. I really do regard the rest of them as being history and I regard them, therefore, as background. I am looking at you much more for the 2008 convictions.

[14] I also have to take account of the pre-sentence report description of your attitude to your offending. You do have an entrenched pattern of cannabis use and, up until now anyway, the view that you are entitled to grow and to use cannabis particularly for your medicinal purposes. I am glad to hear from Mr Rai that you see that this is an attitude which has got you into trouble and brought you here today and you must know that a repeat of this sort of offending, because you have now moved into the dealing side of drug use, would see you spending a great deal of time in prison indeed.

Submissions

[15] There is a case decided by the Court of Appeal called R v Terewi, and you have heard both of the lawyers talking about that today.[3] The reason why that case is important is because the Court of Appeal sets out a number of bands of seriousness of cultivating and dealing in cannabis and essentially says if the offending fits one of those bands then this is the sort of sentence that should result.

[16] The Crown has submitted that your case falls within the lower end of category 2 of the Terewi bands, and that would mean that there is a range of imprisonment of two to four years. The Crown has submitted that the starting point for the cannabis charge in your case should be two years and three months’ imprisonment, because that is towards the lower end of category 2 and the Crown accepts that there is not the commercial money-making characteristic which would put your case into the upper band of category 2.

[17] The Crown says I should uplift your cannabis sentence by six months to take account of your history of drug offending and accepts that you are entitled to a 25% discount for your early guilty pleas.

[18] In respect of the firearms charge, the Crown says that a starting point of six months’ imprisonment should be taken and I should uplift it by three months because of your previous firearms conviction. Again a 25% discount would be available to you.

[19] On the Crown’s submission, I should be sentencing you to about two years and six months’ imprisonment.

[20] Mr Rai has submitted on your behalf that really your case fits uneasily into Terewi at all and that I should adopt the very lowest point of category 2 as a starting point, which would be two years’ imprisonment, and that because of the historical nature of most of your drug offending an uplift of no more than four months would

be justified. Mr Rai says that I should be taking as a starting point no more than

21 months’ imprisonment on the cannabis charge.

[21] In respect of the firearms charge, Mr Rai has submitted that a starting point of no more than four months should be taken.

Starting point

[22] I have thought about that. I agree with Mr Rai that, for the cannabis charge, I

should be taking it at the very lowest point of category 2. That is because although

1295 grams of cannabis head is a pretty hefty amount when you look at how the other cases have dealt with offending, there is no real evidence of commercialism here. You have admitted that you would supply cannabis to others either by giving it away or swapping it for food, but there is no evidence that you were selling the cannabis for profit and the summary of facts does not allege that.

[23] There is a considerable number of other cases that I can look at to help me set a starting point for the cannabis offence. I have had some help from a case called R v Walters.[4] In that case, the prisoner was being sentenced for one charge of possession of cannabis for supply and one charge of failing to appear at Court. Police located cannabis growing in the prisoner’s garage. There were 180 buds of cannabis weighing 477 grams in total. It was being dried. The dried weight would

have been in the vicinity of 210-240 grams and its value was estimated by the grower at about $2,000.

[24] A starting point of two years and three months was adopted in the case. But in that case the grower of the cannabis had admitted that he intended to sell some of the crop and said that he would get about $300 for a 30 gram bag, and he accepted that part of his motive for growing the cannabis was to sell it for that profit.

[25] I think that even though your quantity was much greater, in the absence of an intention to make money out of the cannabis I am prepared to accept Mr Rai’s submission and set the starting point for you as two years’ imprisonment.

[26] I now have to look at the starting point for the charge of unlawfully possessing a firearm. This was a firearm for which you had ammunition. It was located in the same place as the cannabis head. But there is no allegation in the summary of facts that you had the rifle for an unlawful purpose.

[27] In my view, looking at the cases that I have been referred to – R v Walker,[5] where a starting point of six months’ imprisonment was upheld; and R v Rauhihi,[6] where a starting point of six months’ imprisonment was set – I would be justified in setting a starting point of six months’ imprisonment.

[28] I am not going to do so because your unchallenged explanation is that the rifle had been left in your possession by a friend only a few weeks before. The weapon itself is an unmodified bolt action .22 rifle, which is exactly the sort of weapon that a person might have if he wanted to shoot rabbits or possums; the sort of use that fits the lifestyle that Mr Rai has said that you have.

[29] I am going to give you the benefit of Mr Rai’s submissions and set a starting point of four months’ imprisonment in respect of the firearms charge.

[30] I now have to look to see whether those starting points get adjusted up or down.

Personal circumstances

[31] So far as you, yourself, are concerned, the pre-sentence report makes it clear, and indeed your record makes it clear, that cannabis has been a part of your life for a very long time. Remorse is not a matter that features in your case. You do have an extensive criminal record which, as I have said, I will regard in the main as

background. But I do have to look at the 2008 offending, one being for cultivation of cannabis and the other again being for the unlawful possession of a firearm.

[32] I am going to impose a modest uplift in respect of the drug offending. I fix the uplift as four months. I must also impose an uplift in respect of the firearms charge given your previous conviction, and that uplift is two months.

[33] Now, your guilty plea. Both counsel have submitted to me that a 25% discount is appropriate to account for your guilty plea. That is in line with the Supreme Court’s decision in Hessell v R.[7] I agree with the lawyers. The first call of your case was on 2 May 2012 and your guilty plea came on 12 June 2012, so I am prepared to give you the full discount of 25% in respect of each charge.

[34] In respect of the drugs charge, that is a discount of seven months, taking your sentence on the drugs charge to one year and nine months’ imprisonment. In respect of your firearms charge, the discount is one-and-a-half months, bringing your sentence to four-and-a-half months. That brings your global cumulative sentence to two years and one-and-a-half months’ imprisonment.

Totality

[35] The law now requires me to stand back and look at the total sentence and consider whether it is justified on the overall nature of your offending.

[36] I think it is justified, but I am prepared to round your sentence off to a total of two years and one month’s imprisonment. That means that a sentence of home detention is not available. I will record that had it been available I would have declined to give it. That is because the address is the same address as the one you have been living at the last two times you have been arrested for offending of this sort. You live there alone. The conditions of home detention would not do anything to prevent similar re-offending. Although I am prepared to accept the assurances you

_{have given to Mr Rai about your change of heart when it comes to the cultivation}

and use of cannabis, that is something which is yet to be demonstrated by your behaviour.

Result

[37] Therefore, on the count of possession of cannabis for the purpose of supply, I sentence you to one year and nine months’ imprisonment. On the count of unlawful possession of a firearm, I sentence you to four months’ imprisonment. Those sentences are to be served cumulatively with one another, bringing your effective end sentence to two years and one month’s imprisonment.

[38] The final matter is the application for forfeiture orders by the Crown. They seek destruction of the cannabis material seized, pursuant to s 32(1) of the Misuse of Drugs Act 1975. They also seek destruction of the firearm and ammunition. That power is found under s 69 of the Arms Act 1983. I grant the application.

_{[39] You may stand down.}

Brewer J

---

[1] _{R v Drever [2003] NZCA 17; (2003) 20 CRNZ 96; R v Bunning CA378/04, 6 April 2005.}

[2] Sentencing Act 2002, ss 7 and 8.

[3] R v Terewi [1999] 3 NZLR 62.

[4] R v Walters [2012] NZHC 1750.
[5] R v Walker [2008] NZCA 145.

[6] R v Rauhihi HC Palmerston North CRI-2008-404-031-1438, 1 May 2009.

[7] Hessell v R [2011] 1 NZLR 607.