Coker v Police

[2018] NZHC 918

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE

CRI-2018-463-24

[2018] NZHC 918

BETWEEN

DAVID GARY COKER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

1 and 2 May 2018

Appearances:

D Hall for Appellant

M S Jenkins for Respondent

Judgment:

3 May 2018

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 3 May 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

COKER v NEW ZEALAND POLICE [2018] NZHC 918 [3 May 2018]

[1]    Mr Coker pleaded guilty in the District Court to three charges of cultivating cannabis and three charges of being in possession of cannabis for the purpose of supply. On 16 February 2018, Judge Snell sentenced Mr Coker to ten months home detention.1

[2]    Mr Coker appeals against sentence on the basis that the Judge failed to give him adequate credit for two mitigating factors. These are remorse, and efforts taken to rehabilitate himself in respect of his addiction to cannabis.

Background

[3]    The charges were laid after a police operation resulted in the police examining text messages sent to and from Mr Coker. These revealed that he was engaged in the cultivation of cannabis on a commercial basis. The police executed a search warrant of Mr Coker’s address on 25 July 2017. There they located a specially constructed indoor cannabis cultivation or growing room. No plants were growing at the time of the search but it was evident the room had been used in the past for that purpose.

[4]    The room had been constructed specifically for the purpose of cannabis cultivation. It was sealed and lined with reflectorised plastic. Two large extractor fans fitted with carbon filters had been installed to remove the smell of cannabis from the room. These were ducted to a secondary room within the garage. In addition, two ventilation fans had been fitted to an outside wall to introduce fresh air into the growing room. Heat and light were provided by two large lights and shades that would normally be suspended over the growing plants. At the time of the police search these were sitting on the floor along with the electrical ballast units required to operate the lighting system. The police also found pedestal fans, a digital thermometer and humidity metres in the room.

[5]    In a garage located next to the cannabis room the police found 782 grams (27.5 ounces) of high quality cannabis head material. This was stored in plastic shopping

1      New Zealand Police v Coker [2018] NZDC 3026.

bags placed in two large plastic buckets with lids. The estimated value of the cannabis was between $8,278 and $9,625. A small set of electronic scales was sitting on a desk next to the cannabis.

[6]    When the police spoke to Mr Coker, he told them he had used the room to cultivate cannabis in the past. He admitted he had cultivated three separate crops of cannabis. He said the cannabis was for his own use because he had back problems.

The Judge’s decision

[7]    The Judge considered the offending fell within the lower end of Band 2 in    R v Terewi.2 This was because there was a mix of cannabis used for personal consumption and commercial selling. The Judge also gave Mr Coker credit for the fact that the police only knew about two of the cultivations because Mr Coker had disclosed them voluntarily. The Judge considered the starting point for the offending lay within the range of two years four months and three years imprisonment. He selected a starting point at the bottom end of that range, namely two years four months imprisonment.

[8]    The Judge said he did not see any personal mitigating features other than the guilty pleas. He applied a discount of seven months, or 25 per cent, to reflect that factor. He then observed that he considered Mr Coker to be “an ideal candidate for home detention”. This was because he had no previous convictions and the sentencing purposes of deterrence and denunciation could be adequately met by a sentence of home detention. The Judge therefore converted the sentence of 21 months imprisonment to ten months home detention.

Grounds of appeal

Starting point

[9]    On Mr Coker’s behalf Mr Hall submits, but does not press the argument strongly, that the Judge selected a starting point that was too high. This submission cannot be correct. Mr Coker acknowledged having set up a sophisticated growing

2      R v Terewi [1999] 3 NZLR 62 (CA).

room solely for the purpose of cultivating cannabis under ideal conditions. He acknowledged also that he had successfully cultivated three crops of cannabis within the room. Cannabis having considerable value was also found in the garage nearby. In those circumstances the Judge adopted a starting point that can only be described as lenient. It was influenced no doubt by the fact that two of the charges would not have been laid but for Mr Coker’s admissions.

Remorse

[10]   Next, Mr Hall submits the Judge ought to have provided Mr Coker with a discount to reflect his remorse. He relies for this on the following observation in the pre-sentence report:

Mr Coker expressed his remorse and willingness to abide by any conditions imposed stating that going through the judicial system has been an “eye- opener” and the impact his offending has had on his family and employability lead him to the belief he will never reoffend again.

[11]   Whether or not a discount is given for remorse is ultimately a matter of sentencing discretion. It would depend to a large extent on the nature and extent of the remorse that has been expressed. Although Mr Coker clearly expressed his remorse to the probation officer who prepared the report, I do not consider the Judge was bound to give discrete effect to it. The Judge’s failure to do so does not give rise to an arguable ground of appeal.

Rehabilitation

[12]   The pre-sentence report also recorded that Mr Coker had completed an alcohol and drug programme with the Te Utuhina Manaakitanga Trust, and that this was “considered adequate to address the identified rehabilitative need”. No further details were provided regarding the nature of the rehabilitative steps Mr Coker had undertaken.

[13]   The courts will often give an offender credit to reflect rehabilitative steps taken prior to sentencing. That is particularly so in the case of drug offenders with addiction issues. This reflects the principle that the courts should be seen to encourage steps taken by offenders to ensure they do not re-offend again in the future. The issue of

whether and to what extent such credit should be given is very much a matter of discretion for the sentencing judge. It will depend on a variety of factors including the nature and intensity of the rehabilitative steps that the offender has taken.

[14]   In the present case I adjourned the hearing of the appeal to enable Mr Hall to make enquiries of the Trust regarding the course Mr Coker has undertaken. This reveals that Mr Coker attended an initial assessment on 18 September 2017. This occurred after the charges had been laid, but before he had entered his guilty pleas. The Trust confirms he then attended six weekly sessions of two hours duration. He also attended a one-to-one session with a counsellor.

[15]   If the Judge had had this information before him at sentencing he may have been persuaded to provide a further discount to reflect Mr Coker’s rehabilitative efforts. The value of those efforts may be reduced, however, by the fact the pre- sentence report does not refer to Mr Coker having issues with addiction to cannabis. Rather, he appears to be a person who chooses to use cannabis as a form of medication to alleviate pain. In addition, the certificate that Mr Coker received from the Trust on completion of the course states that the programme he attended was “for the purpose of reducing the harmful effects of Alcohol and Other Drug use”. This suggests the course was not designed to assist Mr Coker to abstain from using cannabis in the future. For those reasons I cannot be certain the Judge would have provided a further discount even if he had been aware of the nature of the rehabilitative steps Mr Coker had undertaken.

[16]   In any event, however, those steps could only justify a reduction of two weeks to one month from the sentence of ten months home detention. The Judge had already selected a starting point at the very lowest end of the available range. In addition, he converted 21 months imprisonment to ten months home detention when the usual approach is that two months imprisonment equates to one month’s home detention. These factors confirm Mr Coker received a lenient end sentence. It certainly cannot be described as manifestly excessive so as to justify this Court interfering on appeal.

Result

[17]The appeal against sentence is dismissed.

Lang J

Solicitors:

Crown Solicitor, Rotorua D Hall, Rotorua