Cole v The Queen
[2014] NZCA 238
•12 June 2014 at 12.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA662/2013 [2014] NZCA 238 |
| BETWEEN | IAN ALFRED COLE |
| AND | THE QUEEN |
| Hearing: | 19 May 2014 |
Court: | White, Ronald Young and Simon France JJ |
Counsel: | Appellant in person |
Judgment: | 12 June 2014 at 12.00 pm |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe sentence of nine months’ home detention and 150 hours’ community work is quashed.
CA sentence of six and a half months’ home detention is now imposed.
DMr Cole is to be at his home address on Friday 13 June 2014 to await the arrival of the probation officer and the security guard who will install the monitoring equipment. Mr Cole is to be subject to the six and a half months’ home detention from that date at that address and subject to the conditions imposed in the District Court.
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REASONS OF THE COURT
(Given by White J)
The appellant, Mr Cole, was convicted in the Greymouth District Court on three charges: possession of cannabis for supply, possession of a Class A drug, namely LSD, and cultivation of cannabis. He was sentenced by Judge Garland to nine months’ home detention and 150 hours’ community work.[1]
[1]R v Cole DC Greymouth CRI-2011-086-338, 30 August 2013.
Mr Cole appeals against his sentence on a range of grounds, but in essence he must establish that it was manifestly excessive.
The charges followed Police searches of Mr Cole’s car and house where the cannabis and LSD were found. The quantities involved and the nature of Mr Cole’s cannabis growing operation are conveniently described by Judge Garland in his sentencing notes when assessing Mr Cole’s level of criminality:
[20] I assess the level of criminality involved in your offending based on the following factors:
(a)First dealing with the cannabis; In the car there were eight snap lock bags and one plastic supermarket bag all containing good quality cannabis head. The total amount of cannabis head located in the car was 9.1 ounces. On the basis of Detective McLaughlin’s evidence the cannabis in the car, if sold on an ounce basis, would be worth between $2200 and $3600.
(b)In a spare bedroom at your house the police located the grow room. There were 20 cannabis plants at different stages of growth under lights in that room and some had recently been harvested. The detective acknowledged that the operation was not that sophisticated, but it is clear from his evidence that it was an ongoing operation and not just a one-off cultivation. That is further reinforced by the fact that cannabis stalks were found and had had the cannabis leaves stripped from them. The detective’s evidence was, “Because of the greenness of the cannabis stalks it could be inferred that they had recently been harvested.”
(c)In relation to the LSD, there were only three tabs found in your possession.
On the basis of these factors, Judge Garland assessed the offending as falling at the very bottom end of category 2 in the relevant tariff decision, R v Terewi.[2] Taking into account that it was a small scale commercial operation running collaterally with cannabis being grown and used by Mr Cole for personal reasons, namely self-medicating an injury sustained in an earlier motorcycle accident, the Judge fixed the appropriate starting point for sentencing purposes, bearing in mind the totality of the offending, at 18 months’ imprisonment.[3]
[2]R v Terewi [1999] 3 NZLR 62 (CA).
[3]R v Cole, above n 1, at [21].
After deciding that there were no relevant aggravating or mitigating factors personal to Mr Cole, Judge Garland then turned to consider whether a home detention should be imposed instead of imprisonment. The Judge said:
[24] Turning to consider home detention. On the basis that at 58 years of age, you have not appeared before the Court since 1979 and giving you the benefit of the doubt when you say that you have ceased drug use, that is illicit drug use, altogether since this offending, I am prepared to impose home detention instead of imprisonment, provided it is coupled with some community work to underline the need for deterrence.
We agree with Judge Garland for the reasons given that a sentence of nine months’ home detention was entirely appropriate in Mr Cole’s case.
This leaves, however, the question whether the imposition of 150 hours’ community work on top of the sentence of home detention was justified. Once the Judge decided, correctly in our view, that the starting point was 18 months’ imprisonment, we do not consider that it was open to him effectively to uplift the starting point by the addition of the 150 hours’ community work. The starting point provided the necessary deterrence without a further uplift. The imposition of a further uplift made the sentence manifestly excessive.
In deciding what period of home detention should now be imposed on Mr Cole, we need to take into account the following three factors.
First, Mr Cole completed 27 days of his original home detention sentence before it was suspended when he lodged his appeal on 27 September 2013.[4]
[4]Crimes Act 1961, s 399(3), which still applied.
Second, as Mr Lillico accepted, Mr Cole’s original home detention was particularly restrictive because of the location of the monitoring box and metal exterior cladding on his house.
Third, notwithstanding the suspension of the community work sentence when Mr Cole lodged his appeal,[5] he completed his 150 hours’ community work on 12 April 2014. We understand that Mr Cole completed his community work because it was not appreciated that the sentence was suspended pending the outcome of his appeal.
[5]Crimes Act, s 399(4A).
Mr Cole is entitled to credits for each of these factors, including the community work he completed.[6] In the unusual circumstances of this case, we have concluded that the sentence of nine months’ home detention should now be reduced by two and a half months, leaving a sentence of home detention of six and a half months’ to be served by Mr Cole under the same conditions as Judge Garland imposed.[7] As this decision is merely a response to the unusual circumstances of this case, it has no precedent value.
Result
[6]Compare R v Lunjevich [2012] NZCA 454 and Carruth v R [2013] NZCA 296.
[7]R v Cole, above n 1, at [25]–[26].
The appeal is therefore allowed. The sentence of nine months’ home detention and 150 hours’ community work is quashed. A sentence of six and a half months’ home detention is now imposed.
Mr Cole is to be at his home address on Friday 13 June 2014 to await the arrival of the probation officer and the security guard who will install the monitoring equipment. Mr Cole is to be subject to the six and a half months’ home detention from that date at that address and subject to the conditions imposed in the District Court.
Solicitors:
Crown Law Office, Wellington for Respondent
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