Coles v The Queen

[2012] NZHC 1476

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-44 [2012] NZHC 1476

BETWEEN  CHRISTOPHER ALAN COLES Appellant

ANDTHE QUEEN Respondent

Hearing:         26 June 2012

Counsel:         D J H Stringer for Appellant

K Basire for Respondent

Judgment:      26 June 2012

(ORAL) JUDGMENT OF POTTER J

on sentence appeal

Solicitors:           Crown Solicitor, Christchurch – [email protected]

Copy to:            D J H Stringer, Christchurch –  [email protected]

COLES V R HC CHCH CRI-2012-409-44 [26 June 2012]

[1]      Christopher Coles was sentenced by Judge Garland[1]  to two years two months imprisonment, after he had entered guilty pleas prior to committal to indictably laid charges of cultivating cannabis and possession of cannabis for supply.  He appeals against the sentence on the grounds that it is manifestly excessive.  He submits that a sentence of two years or less should have been imposed and that home detention was the appropriate sentence in the circumstances of this case.

Facts

[1] R v Stringer DC Christchurch CRI-2011-009-013071, 27 April 2012.

[2]      The facts of the offending are set out in the sentencing judgment.   On 9

November 2011 police executed a search warrant at the address of Mr Coles, 109

Marshland Road, Christchurch.  They found a bedroom which had been converted for growing cannabis.  This bedroom contained growing lights and an extractor fan for ventilation.  There were ten mature cannabis plants approximately 1.5 metres tall, grown in pots of soil.  In the lounge police located a tray of seedlings, approximately ten centimetres tall.  In the bedroom police found 12 ounce bags of cannabis head packaged for sale.  Six further one ounce bags containing cannabis head were located in the lounge and one ounce bag was located in Mr Coles’ vehicle. All the bags were packaged ready for sale.

[3]      Also located in the house were scales and empty ziplock bags consistent with cannabis dealing.   Police found a significant sum in Mr Coles’ wallet, $2,807.80 (ultimately the Crown accepted that the sum of $1,707.80 should be forfeited).  A further $400 in cash was located in the pocket of Mr Coles’ jeans.

[4]      In the summary of facts, on the basis of which Mr Coles entered his guilty pleas, police gave an assessment of the crop which would be available to harvest from such an indoor cannabis operation.  They calculated that over a period of three years the total amount of income from cannabis sales would be in the vicinity of

$108,000, a figure which the Judge accepted.

District Court sentencing

[5]      The Judge noted that the total sentence available in the District Court dealing with charges summarily, was three years imprisonment, the maximum penalty on the cultivation charge being two years imprisonment and on the possession charge, one year imprisonment.   The Judge did not elect to decline jurisdiction in favour of sentencing in the High Court where the maximum penalties available would have been considerably higher.  He proceeded to sentence on the basis of the maximum penalties to which I have just referred.

[6]      He noted that Mr Coles was 44 years of age and had four previous drug related convictions between 1990 and 2002.  The Judge noted that in 2002 Mr Coles was convicted of offending identical to that for which he was to be sentenced.  On that occasion he was sentenced to one year imprisonment.   He noted offences for dishonesty, firearms and driving offences.  As Ms Basire for the Crown has pointed out in submissions, when Mr Coles was convicted in 2002 for cultivating cannabis and possession for supply, he was also convicted of careless use of a firearm and unlawful possession of a firearm which was associated with the drugs offending on that occasion.  The Judge referred to the fact that in 2002 when Mr Coles was in prison he completed a five months alcohol and drug programme and he had previously undertaken some individual counselling.

[7]      The Judge rejected the recommendation of the probation officer of a sentence of home detention.  He adopted a starting point of two years seven months, referring to the authority of R v Smith.[2]     He said the offending in Smith was slightly less serious  than  the  offending  in  this  case  because  of  the  comprehensive  indoor operation conducted by Mr Coles.[3]

[2] R v Smith HC Palmerston North CRI-2005-015-498, 6 December 2005.

[3] The starting point was not challenged.

[8]      The Judge applied an uplift of three months on account of the previous drug related offending of Mr Coles.  He then allowed a discount of nine months (slightly

more than 25 per cent) to reach an end sentence, he said, of two years two months

imprisonment.[4]   Having approached the sentencing on a totality basis, the Judge then sentenced Mr Coles to 20 months imprisonment on the cultivation charge and six months imprisonment on the possession of cannabis for supply charge, to be served cumulatively.   He noted that given the end sentence there was no jurisdiction to consider a sentence of home detention.

[4] On the Judge’s calculation the end sentence would be two years one month imprisonment but the

sentence imposed was two years two months imprisonment.

Submissions

[9]      Mr Stringer, counsel for Mr Coles, focused his submissions on three points: (a)        He said that recent factors had come to his attention, in particular a

report by the Earthquake Commission in relation to the premises occupied  by  Mr  Coles  at  the  relevant  time  that  suggested  this offending would not have extended over a period of three years consistent with the calculations made by the police and accepted by the Judge, but rather over a period of a maximum of nine months.  He also referred to photographs in the photograph booklet which was an exhibit in the case, showing fish tanks.   He said that Mr Coles had been keeping tropical fish in those tanks which provided an explanation for the high power consumption at the premises.

There was no application before the Court to adduce further evidence on appeal.   There was no affidavit from Mr Coles to support the submissions made.   Mr Stringer made submissions orally from the Bar.

As Ms Basire pointed out, whether the manufacturing operation had been carried on for a period of approximately three years or some lesser period, is unlikely to have a significant outcome on the end sentence.

I further note that Mr Coles entered his guilty pleas on the basis of the

police summary of facts which included the calculations based on such a cannabis operation extending over a period of three years.

I rejected Mr Stringer’s application to adjourn the hearing so that an application could be made to adduce further evidence on appeal. I was not satisfied that such an application had merit.

(b)Mr Stringer submitted that the sentences should have been imposed concurrently under s 84 of the Sentencing Act and the Judge was wrong to impose cumulative sentences.

I do not accept that submission.  The Judge approached the sentencing exercise on a totality basis, considering the offending as a whole.   I accept the Crown’s submission that his approach was orthodox.

The Crown referred to the case of Montgomery v R[5]  where the High Court referred to the Court of Appeal authority[6]  that the imposition of cumulative sentences which when aggregated exceed the maximum available for one offence, will not be inconsistent with the totality principle if the effective sentence is in proportion to the offending as a whole and properly reflects the totality of that offending.

[5] Montgomery v R HC Auckland AP62/99, 23 June 1999.

[6] R v Blackler CA66/91, 20 May 1991.

The  Court  of  Appeal  has  frequently  emphasised  that  on  appeals against sentence the Court will be concerned with the end sentence imposed rather than the manner in which that sentence is reached by the sentencing Judge.   But here there can be no criticism of the approach of Judge Garland in reaching the end sentence on a totality basis and then allocating separate sentences to each of the two offences.

(c)      Mr Stringer submitted that the Judge had given no or insufficient credit for what he described as an “offence-free seven to ten years”,

depending on how the period of the current offending was assessed.

The Judge applied an uplift of three months for Mr Coles’ previous

convictions.   Given his history with cannabis related offending in

1990, 1999 and 2002, that uplift cannot be criticised.  Nor can there be any criticism of the Judge in not allowing a particular or distinct discount for remorse.   There is no evidence to support the type of situation  contemplated  by  the  Supreme  Court  in  Hessell  v  R[7]    to warrant a discount on account of remorse.  The discount of just over

25 per cent for the guilty pleas was entirely appropriate.

Conclusion

[7] Hessell v R [2010] NZSC 40; [2011] 1 NZLR 607 at [64].

[10]     The end sentence, whether two years one month or two years two months, cannot be said to be manifestly excessive.  As the Judge observed, given that end sentence, home detention was not a sentence within the Court’s jurisdiction.

[11]     The appeal is dismissed.