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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Coker v The Queen

Details

AGLC: Coker v The Queen [2017] NZHC 2927
Case: [2017] NZHC 2927
Decision Date: 28 November 2017

CaseChat Overview and Summary

In this case, Koru Meihana Coker appeals against his sentence of two years and eight months' imprisonment for charges of supplying and offering to supply methamphetamine. The case was heard and decided by Justice Simon France in the High Court of New Zealand at Wellington. The appeal focuses on the discounts given by the sentencing judge for remorse, rehabilitation, and time spent on electronically monitored (EM) bail. Coker argues that more credit should have been given for his rehabilitative efforts and time spent on EM bail.

The court considered whether the sentence imposed was appropriate and whether the discounts for remorse, rehabilitation, and EM bail were correctly applied. The court held that no real credit had been given for remorse and rehabilitation, and that the six-month discount suggested on appeal was unrealistic. Regarding the credit for EM bail, the court found that the submission was contrary to authority, and that the size of the discount accorded with standard practice. The court concluded that the conditions of EM bail, however restrictive, are still not the same as imprisonment and should not be treated as such.

The appeal was dismissed, and the original sentence of two years and eight months' imprisonment was upheld. The court found that the sentence imposed was appropriate, and that the discounts for remorse, rehabilitation, and EM bail were correctly applied. The court noted that Coker had a history of similar offending and had continued to offend while on bail, which weighed against giving significant credit for remorse and rehabilitation. The court also found that the discount for EM bail was consistent with standard practice and that the conditions of EM bail were still not the same as imprisonment.

Orders