Coker v The Queen

[2017] NZHC 2927

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI 2017-485-53 [2017] NZHC 2927

BETWEEN

KORU MEIHANA COKER

Appellant

AND

THE QUEEN Respondent

Hearing:	28 November 2017
Counsel:	K Preston for Appellant J E Mildenhall for Respondent
Judgment:	28 November 2017

JUDGMENT OF SIMON FRANCE J

[1]      Mr Coker appeals a sentence of two years and eight months’ imprisonment imposed on charges of supplying and offering to supply methamphetamine.1   Search and surveillance in February 2016 and September 2016 disclosed the offending:

(a)      in February Mr Coker’s residence was searched after a number of people were seen visiting it between 3.00 am and 7.00 am.   Cash, scales, and methamphetamine were located; and

(b)in September as the result of a larger surveillance operation, text data relating to Mr Coker’s cell phones was analysed. It showed he had over the preceding months supplied 15 grams, and made offers to supply

another 29 grams.

1      R v Coker [2017] NZDC 20975.

[2]      Mr Coker has numerous previous convictions, of which one is for similar offending.   In 2007 he was sentenced to five years’ imprisonment for possessing methamphetamine for supply.

[3]      The Judge took a starting point of three years and six months’ imprisonment. This was uplifted by six months to reflect past offending, and the fact that the second tranche of offending was committed while on bail.  Despite a relatively late plea a discount of 20 per cent was applied which would be 9.6 months’. This was “rounded up” to 10 months to reflect remorse and expressed commitment to rehabilitation.2

That left a figure of 38 months’ imprisonment.  Six months’ credit was then given for a year on electronically monitored (EM) bail leaving the final sentence of two years and eight months’ imprisonment.

Appeal

[4]      The appeal focuses on the discounts given.   It is submitted remorse and rehabilitation should have been treated separately, more credit was due for rehabilitative efforts, and more credit for time spent on EM bail.

[5]      Concerning bail, Mr Coker was arrested following the February 2016 search and granted bail with a curfew condition.  He was rearrested in September 2016 and spent 18 days in custody before being admitted to EM bail on 27 September.  He was sentenced a year later.   The charges arising from the September surveillance were linked to a period from October 2015 until July 2016, so most of the time he was on bail for the February charges.

[6]      Mr Coker is 36 years of age.  He has four children from two relationships.  In the pre-sentence report he expresses commitment to change and to restoring his relationship with the mother of his two young children.

[7]      On appeal it is noted that the rounding up exercise for rehabilitation and remorse amounted to a two week allowance. This is submitted to be insufficient.  He

is genuinely remorseful and has exhibited commitment to change.  He has abstained

2      Coker, above n 1, at [23]–[24].

since  his  September  arrest  and  has  attended  a  Drug Assessment  interview  with John Duncan an Alcohol and Drug clinician. He was presented with options including a residential course but was unwilling to commit.  It was noted in the report that if sentenced to imprisonment he would be eligible for a place in the Drug Treatment Unit.  Subsequent to that assessment and immediately prior to sentencing Mr Coker interviewed successfully for a place in a residential facility, albeit a vacancy was not immediately available. A credit of six months is sought for rehabilitation and remorse.

[8]      Concerning EM bail, a credit of 12 months is sought. The conditions involved

24 hour curfew. There were 42 approved absences of between one to three hours each.

Decision

[9]      Addressing first remorse and rehabilitation, it is clear that no real credit has been given. The same rounding up exercise would probably have occurred anyway. I accordingly approach the matter from the viewpoint of whether it was an error not to give credit.   In that regard the overall circumstances must be taken into account.

Mr Coker had committed similar offending in 2007 and received a lengthy jail term. He was again arrested in February 2017, obtained bail and then continued to offend while on bail.

[10]     All one has at this point are Mr Coker’s claim to be drug free since his arrest and Mr Coker’s claim about a commitment to change.  The drug assessment report suggests some ambivalence.   However, the pre-sentence report writer interviewed

Mr Coker after his interview with Mr Duncan and assessed Mr Coker’s commitment as genuine.  Home detention was the recommended sentence.

[11]     While it would have been open to a court to give modest recognition or encouragement, it is not the type of compelling case where it is an error not to.  Mr Coker is now at the point where he needs actions to speak for him, and if they occur no doubt the Parole Board will have regard to it.  The six month discount suggested on the appeal is unrealistic and it would have been an error on these facts to give such a significant credit.

[12]     As for EM bail, the submission is contrary to authority. It is plain, and for good reason, that a one for one equivalence of time on EM bail to an equivalent credit off a prison sentence is not correct.3  The size of the discount here accords with what appears to be standard practice.4

[13]     Mr Preston submitted that the difficulty with existing authority is the lack of detail provided with the judgments concerning the EM bail package.  It is noted that even within a 24 hour curfew the arrangements can vary significantly.   Some, for example, may be permitted to work.  Others, as here, need permission even to leave to do shopping.   Whilst I do not disagree that greater identification of the actual circumstances of EM bail would assist with consistent decision making, my clear sense of the authorities is that the greater discounts currently given occur in those cases where the most restrictive situation exists.  In other words, the discounts are already at the top end.  This reflects the point made in Parata and elsewhere that the context is allocating credit towards an imprisonment term.   The conditions of EM bail, however restrictive, are still not the same as imprisonment and should not be treated as such.  Hence the consistent rejection of equivalence.

[14]     The appeal is dismissed.

Simon France J

3      See, for example, R v Parata [2017] NZCA 48 at [11]–[14]; and R v Rangi [2014] NZCA 524 at

[10].

4      R (CA528/16) v R [2017] NZCA 210 at [14] speaks of four to six months for 12 months’ EM bail with restrictive conditions and compliance.