Codlin v R
[2012] NZCA 71
•7 March 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA493/2011 [2012] NZCA 71 |
| BETWEEN SANDI NESTA CODLIN |
| AND THE QUEEN |
| CA570/2011 |
| AND BETWEEN RODERICK GEORGE LEONARD |
| AND THE QUEEN |
| Hearing: 20 February 2012 |
| Court: Randerson, Potter and Simon France JJ |
| Counsel: N G Cooke for Ms Codlin |
| Judgment: 7 March 2012 at 2.30 pm |
JUDGMENT OF THE COURT
AMr Leonard’s appeal is allowed. The sentence of two years seven months and two weeks imprisonment is quashed. A sentence of two years three months imprisonment is imposed on each offence (selling cannabis and possession of cannabis for supply), to be served concurrently.
B Ms Codlin’s appeal is dismissed.
C The forfeiture orders made by Wylie J are confirmed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Potter J)
Introduction
Roderick Leonard pleaded guilty on 7 March 2011 to charges of selling cannabis and possession of cannabis for supply respectively under s 6(1)(e) and (f) of the Misuse of Drugs Act 1975. Sandi Codlin pleaded guilty on 24 March 2011 to a charge of possession of cannabis for supply under s 6(1)(f). The maximum sentence for each conviction is eight years imprisonment.
The District Court declined sentencing which was transferred to the High Court at Whangarei. On 26 July 2011 Wylie J sentenced Mr Leonard to two years seven months and two weeks imprisonment on each offence to which he had pleaded guilty, the sentences to be served concurrently. The Judge imposed a sentence of one year seven months imprisonment with release conditions on Ms Codlin.[1]
[1] R v Codlin & Leonard HC Whangarei CRI-2011-088-814, 26 July 2011.
The Judge ordered forfeiture of the drugs and drug related paraphernalia found at the property in Hikurangi, near Whangarei where the appellants were living. He also ordered the forfeiture of the sum of $1970 found at the property, having determined on the balance of probabilities that it was derived from the commission of the offences of which the appellants were convicted.
Mr Leonard and Ms Codlin appeal their sentences on the ground that they are manifestly excessive.
Background facts
On 28 February 2011 police executed a search warrant at the address where the appellants were living in Hikurangi, near Whangarei. Both were at home. The search revealed the following items:
(a)A security monitor camera;
(b)A cannabis pipe and a half-used cannabis tinnie;
(c)Two notebooks – which the police described as “tick lists”;
(d)A plastic snap-lock bag containing approximately 2.2 grams of cannabis, found in Ms Codlin’s handbag;
(e)A plastic snap-lock bag containing approximately 8.3 grams of cannabis, found in Ms Codlin’s underwear drawer;
(f)Cash totalling $1,970 in $50 and $20 note denominations;
(g)Electronic scales;
(h)Two plastic snap-lock bags containing two cannabis tinnies (1.6 grams of cannabis), and the other 25 cannabis tinnies (20.2 grams of cannabis). Mr Leonard attempted to throw these snap-lock bags over a neighbour’s fence immediately prior to the police entering the property, but police retrieved them;
(i)A small cannabis seedling planted outside the dwelling on the property.
Approximately 32.3 grams of cannabis were seized pursuant to the search warrant.
Mr Leonard admitted possession of the cannabis but claimed to police that he only ever sold it to friends. He denied the notebooks were tick lists. Ms Codlin admitted that the cannabis found in her handbag was hers but otherwise denied any involvement in the offending.
Sentencing decision
After summarising the factual background, the information contained in the pre-sentence reports for each of the appellants and the submissions of counsel, the Judge turned to the principles of sentencing and noted that deterrence is a primary factor in drug related offending. He identified the aggravating features of the offending as the degree of premeditation involved (he referred to the security camera, the notebooks and the pre-wrapped tinnies). He then identified as a matter “of significant concern” that Ms Codlin’s nine year old daughter was living at the address at the time of the offending.[2] The Judge noted the assurances given in Court that both the appellants endeavoured to keep the offending from her.
[2]There may have been a slight discrepancy as to the age of the daughter referred to but it is immaterial for present purposes.
The Judge then referred to the lead case in relation to cannabis related offending, R v Terewi[3] and said that of the three broad categories of cannabis related offending set out in Terewi, category 2 was relevant in this case, relating to small-scale cultivation, or sale or possession for supply of cannabis for a commercial purpose. He noted that the general starting point is in the region of two to four years imprisonment but it may be lower if the sales are infrequent or of limited extent.
[3] R v Terewi [1999] 3 NZLR 62.
He said the offending in which the appellants were involved clearly fell within category 2, toward the bottom end. He based that conclusion on the amount of cannabis found, the amount of cash found and the other items seized from the address.
The Judge identified Mr Leonard as the main offender and noted that Mr Leonard accepted this was so in a letter he had made available to the Judge. The Judge said the operation was “reasonably sophisticated” and had been generating significant amounts of cash, referring to the $1970 found in the house. In that context he noted Mr Leonard’s assertion that the money came from the sale of a Harley Davidson motor and gearbox (an explanation the Judge declined to accept when later considering forfeiture of the cash as sought by the Crown). He referred to the presence of Ms Codlin’s nine year old daughter as an aggravating feature of the offending. Also that this offending occurred while Mr Leonard was subject to a sentence of community work.
The Judge adopted a starting point of two years and nine months imprisonment. He applied an uplift of nine months to recognise what he described as Mr Leonard’s “appalling criminal history”.
For the early guilty plea he allowed a discount of 25 per cent.
He specifically rejected submissions that there should be a further discount for remorse, noting that while an element of remorse was expressed in Mr Leonard’s letter he had expressed no remorse to the probation officer and seemed intent on justifying his offending and seeking to downplay it.
The end sentence imposed on Mr Leonard was two years seven months and two weeks imprisonment.
For Ms Codlin’s offending the Judge took a starting point of two years and three months imprisonment again referring to Ms Codlin allowing the offending to go on in her home where her daughter resided.
He uplifted the starting point by one month for Ms Codlin’s history of offending and allowed 25 per cent for the early guilty plea and two months for remorse. The Judge considered but rejected, non-custodial sentences recommended by the probation officer, and also considered that home detention was inappropriate in the circumstances. He imposed post-release conditions relevant to Ms Codlin’s admission that she used cannabis on a daily basis.
The Judge ordered that the drug related paraphernalia and cash found at the property when it was searched be forfeited. He rejected submissions for Mr Leonard that the cash was the balance of money he received from the sale of a Harley Davidson motor and gearbox. He said there was nothing to support that assertion and having considered the surrounding circumstances and the other items found, he was satisfied on the balance of probabilities that the money was received by one or both of the appellants as a result of the commission of the offences.
Mr Leonard’s appeal
Mr Leonard filed a notice of appeal against sentence dated 16 August 2011 in which he listed some ten grounds of appeal. A memorandum of amended grounds of appeal dated 25 October 2011 was filed on his behalf by his then counsel, Mr D J Blaikie, but Mr Leonard represented himself at the appeal hearing. He filed a letter addressed to this Court[4] which related his concerns.
[4]Mr Leonard’s letter to this Court, undated but received by facsimile on 13 February 2012.
We shall first consider the two grounds of appeal on which Mr Leonard principally focused in support of his contention that the sentence imposed on him was manifestly excessive. He submitted that the starting point of two years nine months was too high and that the uplift of nine months for his previous offending was excessive.
Starting point
The appellant’s offending involved 32.3 grams of cannabis, and evidence of tick lists, electronic scales, a security monitor camera and $1970 in cash.
Although it was common ground at sentencing that the offending fell within category 2 of Terewi, Mr Leonard contends that he “wasn’t a commercial drug dealer … what I did supply wasn’t for profit, … just to tide a friend over”. He accepts that “… technically I am guilty”.[5]
[5] Mr Leonard’s letter received 13 February 2012.
Mr Leonard provided an explanation for each of the various items found at his home when the search warrant was executed: the cannabis pre-packaged in tinnies was to control his own intake (although it appears from the Caption Summary that he did not provide that explanation to police at the time), the notebooks were “training records”, the cash of $1970 was the balance from the sale of a Harley Davidson motor and gearbox for about $5,000 (Mr Leonard has been unable to provide any receipts or evidence from other parties involved in the alleged sale), the security camera was because of problems with Ms Codlin’s former partner coming to the property to attack him.[6]
[6]If the reference is to Ms Codlin’s former husband, this explanation does not sit comfortably with the claim Mr Kleiman makes in an affidavit dated 25 January 2012 in support of Ms Codlin’s appeal that he has the fulltime care of his and Ms Codlin’s two daughters aged 11 and 8 years and that he is always present with the children when they visit their mother at her house in Hikurangi, once or twice a week for up to an hour.
There is no dispute that all the items referred to in the Caption Summary on the basis of which Mr Leonard entered his guilty pleas, were found at Ms Codlin’s home, where he was residing when police executed the search warrant, as he admitted at the time.
Mr Leonard has not provided any independent evidence in support of his explanations about these items, either for the purposes of sentencing or in relation to this appeal. Nor has he sworn an affidavit or made an affirmation verifying his assertions. He did not seek a disputed facts hearing.
The Judge referred to Mr Leonard’s explanation about the items located, but on the basis of the inferences he drew from all the facts, including the amount of cannabis found at the property, 32.3 grams, the $1970 cash in $50 and $20 notes and the other items found, he concluded that the operation was a “reasonably sophisticated” commercial enterprise. That finding was clearly available on the evidence. The Judge also noted that Mr Leonard was the main offender on his own admission.
On that basis, the starting point of two years nine months imprisonment, which was towards the lower end for category 2 offending, was within the range available to the sentencing Judge.
Uplift for previous offending
Wylie J applied an uplift to the starting point of nine months for what he described as Mr Leonard’s “appalling criminal history” including many drug-related offences between 1977 and 1993.
Mr Leonard emphasised in his submissions to us that he has “stayed out of prison for 20 years”,[7] and has undertaken methadone treatment and regular counselling for his drug addiction. He pointed out that this was the longest sentence he had ever received.[8]
[7]Mr Leonard was last sentenced to a term of imprisonment for offending in June 1992 when he was sentenced to nine months imprisonment for receiving.
[8] Mr Leonard has received 18 separate terms of imprisonment.
The Judge noted that the appellant has 16 convictions for breach of sentence of community work, five convictions for breach of bail and that this offending occurred while he was subject to a sentence of community work. He observed that the sentences imposed in the past have had little or no effect.
While those factors are pertinent, particularly in light of this offending, we consider an uplift of 25 per cent of the starting point was excessive given the absence of any drug offending since a minor conviction in 1993, that none of the appellant’s six drug related convictions have involved an element of supply or dealing, and his comparatively low level of offending over the last 20 years. We consider the uplift should be reduced to three months.
Remorse
Mr Leonard complains that he was given no discount for remorse and that Wylie J “ignored his remorse and regret” in a letter he wrote to the sentencing Judge.
However, the Judge expressly addressed the question of remorse[9] and acknowledged the submissions made on behalf of the appellant by his counsel. Mr Leonard’s expressions of regret continue to be accompanied by his insistence that he was not conducting a commercial drug dealing operation. Given that he has consistently failed to accept the extent and seriousness of his offending, any expressions of remorse and regret do not warrant substantive recognition.
Trial counsel
[9] At [35] of the sentencing notes.
The second ground of appeal stated in the amended grounds of appeal filed for Mr Leonard, is counsel incompetence. In the course of his oral submissions Mr Leonard was critical of the representation provided to him by his former counsel, Mr Day. He asserted that he only entered guilty pleas because he understood that Mr Day had done a “deal” with police in relation to the charges against Ms Codlin,[10] namely that they would be withdrawn or reduced. He claims he was not advised prior to entering his pleas that the police would not accept the deal, and that he would not have pleaded guilty had he known this.
[10] This assertion was referred to by Wylie J in his sentencing notes at [8].
It appears from correspondence exhibited to an affidavit of Christine Betty Treadwell, police constable of Whangarei sworn on 14 February 2012 (she being the police prosecutor when Mr Leonard entered his guilty pleas), that by letter dated 3 July 2011 Mr Day put to the police at Whangarei, proposals relating to guilty pleas for Mr Leonard and Ms Codlin. The proposal for Mr Leonard was that he would plead guilty to both charges, that he accepted responsibility for all cannabis located, acknowledged that the sum of money located was from the proceeds of sale of the drugs, and that he was the instigator and principal player in the enterprise.[11]
[11] Mr Leonard denies that he gave instructions to this effect to Mr Day.
The proposal for Ms Codlin was that both charges would be withdrawn upon Mr Leonard entering his guilty pleas and be substituted with a charge of “permitting premises”. She accepted that she knew what Mr Leonard was doing in her home and condoned it.
Mr Leonard entered guilty pleas to both charges on 7 March 2011. Ms Codlin was remanded until 9 March 2011 to allow police to clarify Mr Day’s proposal. On 8 March 2011 Constable Treadwell advised Mr Day by email that:
… although Constable Cooper has previously given an undertaking of accepting your proposal, it can no longer occur.
On 24 March 2011 Ms Codlin entered a guilty plea to a single charge of possession of cannabis for supply.
The precise circumstances in which Mr Leonard entered guilty pleas on 7 March 2011, while on the same day Ms Codlin was remanded for two days to enable Mr Day’s proposal made on behalf of both her and Mr Leonard to be clarified, are unclear.
However, the following matters are clear:
(a)Mr Leonard has admitted his part in the offending and accepted responsibility for it (notwithstanding that he continues to maintain it was not a commercial operation);
(b)He took no steps to vacate his guilty pleas in the period of nearly five months between entering his guilty pleas and sentencing;
(c)He has not appealed his convictions;
(d)Although he has asserted that he was not competently represented by Mr Day, Mr Leonard has not provided evidence by way of affidavit or affirmation as to the respects in which he alleges Mr Day did not competently represent him;
(e)He has not provided a waiver of privilege to enable Mr Day to respond to the allegations of incompetence.
On 20 December 2011 following the filing by Mr Blaikie of the amended grounds of appeal on behalf of Mr Leonard, Crown Law wrote to Mr Leonard at Ngawha Prison asking him to provide an affidavit, or at least a signed statement, setting out his full concerns relating to the ground of appeal alleging counsel incompetence. He was also asked to provide a waiver of privilege:
… that is, a letter addressed to Mr Day giving him permission to talk to the Crown about the legal advice he gave you … so that Mr Day is able to respond to your concerns about his representation of you.
Mr Leonard accepted before us that he received that letter but took no action. He claimed he did not understand it and said he did not want to have anything to do with Mr Day.
Mr Leonard’s guilty pleas are consistent with the admissions he made to police at the time the search warrant was executed and also in the letters he addressed to the sentencing court and this Court, in which he admitted guilt while maintaining he is “not a drug dealer”. Any benefit that might have followed from the “deal” which he claims he relied on in entering his guilty pleas on 7 March 2011 was for Ms Codlin, not for him. He received a full discount of 25 per cent for his guilty pleas.
Mr Leonard fully understood the merits of his own position when he entered his guilty plea. There has been no miscarriage of justice. Mr Leonard accepted there was no point in now applying to vacate his plea.
Ms Codlin’s sentencing
In his written submissions Mr Cooke accepted that Ms Codlin’s offending falls at the bottom end of the range of two to four years in category 2 in Terewi. He also accepted that there could be no challenge to the 25 per cent discount for her guilty plea and the further discount of two months for remorse, in total a discount of about 32 per cent. He accepted there were no other mitigating factors. Nor did he contest the one month uplift to the starting point for Ms Codlin’s history of offending.
However, Mr Cooke submitted that the starting point taken by the Judge, two years three months imprisonment, was too high because the Judge weighed as an aggravating factor that Ms Codlin’s nine year old daughter was resident at the premises where the cannabis offending occurred. [12] He said this was a fact the Judge “wrongly assumed”.
[12] At [25], [31] and [41] of the sentencing notes.
Ms Codlin sought leave to file fresh evidence on appeal in the form of affidavits by herself and her former husband, Mr Bob Kleiman of Hikurangi. Both say that their two daughters, aged 11 and 8, reside with Mr Kleiman who is their fulltime caregiver. Mr Kleiman says that when the girls visit Ms Codlin for up to an hour once or twice a week, he is always with them. They do not live or stay overnight with her.
The Crown opposed Ms Codlin’s application on the basis that the evidence is not fresh and nor is its admission required in the interests of justice. As a fallback position, the Crown sought admission of an affidavit of Constable Selina Gordon, if the appellants’ affidavits were admitted.
We would agree with the Crown’s submission. The evidence could have been before the sentencing Judge. Further, even absent this aggravating factor, the starting point of two years three months imprisonment for Ms Codlin is clearly not excessive, being near the bottom of the range in category 2 in Terewi.
However, because this factor was noted by the Judge as an aggravating factor of the offending in relation to the starting points for both the appellants, and because Mr Leonard claimed in submissions[13] that the relevance of this matter on sentencing “caught us off guard”, we admit the two affidavits presented by Ms Codlin and also the affidavit of Constable Selina Gordon.
[13] Letter to this Court received by fax on 13 February 2012.
Constable Gordon says that she was present at the Hikurangi address on 28 February 2011 when the search warrant was executed. She spoke with Ms Codlin and recorded the questions and answers in her notebook. Ms Codlin then read the entries in her notebook and signed them. The notebook entries are exhibited to Constable Gordon’s affidavit. In relation to her daughter Ms Codlin states:
2 kids 9 + 4
Only 9 year old lives with me girl – R
[Name of school deleted]Q Do you ever smoke pot in front of R?
A No. They definitely won’t be finding anything in R’s room.
…
QApart from you and Rod and R does anyone else stay here with you?
A Just M my other daughter. She stays here on weekends.
…
I live here I smoke a lot of cannabis and look after my daughter.
…
(Constable Gordon notes): Advised Codlin would organise for her daughter to be picked up from school once returned to police station.
It is abundantly clear that the information about her daughters’ presence at the house given to Constable Gordon and the evidence now presented by Ms Codlin and Mr Kleiman, is in direct conflict. Ms Codlin offers no explanation for this although she says she recalls speaking with Constable Gordon and signing her notebook.
Further, Wylie J in referring to the “significant concern” he had about Ms Codlin’s nine year old daughter living at the address at the time of the offending, noted:[14]
… the assurances you have given in Court this morning that you both endeavoured to keep the offending from her.
[14] At [23] of the sentencing notes.
This suggests that at the sentencing hearing, the appellants accepted that Ms Codlin’s daughter was living at the house and that they took steps to keep their cannabis offending from her.
Finally, we note that in his letter to this Court, which of course is not sworn evidence, Mr Leonard says:
… we had Sandi’s daughter stay over … on the odd occasion.
This is inconsistent with both accounts of Ms Codlin and with the evidence of Mr Kleiman.
The evidence of Ms Codlin and Mr Kleiman as presented in their affidavits is simply not credible. It is inconsistent with the statements of Ms Codlin to Constable Gordon at the time of the search warrant when she responded spontaneously to the questions asked. It is inconsistent with the assurances given to the Judge at sentencing, and on the matter of “staying over” it is inconsistent with Mr Leonard’s letter to the Court. We reject this evidence.
The Judge appropriately weighed as a significantly aggravating factor that the cannabis offending by the appellants occurred at Ms Codlin’s home where her daughter was living.
Result
Mr Leonard’s sentence will be adjusted as follows:
(a)To the starting point of two years nine months imprisonment there will be an uplift of three months.
(b)From the revised starting point of three years there will be a discount of 25 per cent (nine months)[15] to reach an end sentence of two years three months imprisonment.
[15]No issue is taken with the discount applied by the sentencing Judge, which is the maximum for an early guilty plea.
Mr Leonard’s appeal is allowed. The sentence of two years seven months and two weeks imprisonment is quashed. A sentence of two years three months imprisonment is imposed on each offence (selling cannabis and possession of cannabis for supply), to be served concurrently.
Ms Codlin’s appeal is dismissed.
The forfeiture orders made by Wylie J are confirmed.
Solicitors:
Crown Law Office, Wellington for Respondent
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