Cook v The Queen
[2013] NZCA 56
•14 March 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA769/2012 [2013] NZCA 56 |
| BETWEEN KORREY TE AATI BRADLEY COOK |
| AND THE QUEEN |
| Hearing: 19 February 2013 |
| Court: Arnold, Simon France and Dobson JJ |
| Counsel: S A Saunderson-Warner for appellant |
| Judgment: 14 March 2013 at 12 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Dobson J)
Introduction
On 14 November 2012, Mr Cook was sentenced by Judge Crosbie in the District Court at Dunedin on four convictions.[1] On two convictions for possession of cannabis for sale, contrary to s 6(1)(f) of the Misuse of Drugs Act 1975, and one of conspiracy to sell cannabis contrary s 6(2A)(c) of that Act, he was sentenced to a term of three years and three months’ imprisonment. On a conviction for criminal breach of trust, contrary to s 229(1) and (2) of the Crimes Act 1961, he was sentenced to a cumulative term of imprisonment of nine months. All the sentences were to be served cumulatively on a sentence already being served of two years and nine months for unrelated violent offending.
[1] R v Cook DC Dunedin CRI-2012-012-5997, 14 November 2012 [sentencing notes].
Mr Cook has appealed against the sentences imposed on 14 November 2012, and Ms Saunderson-Warner on his behalf has raised two discrete criticisms of the components of Judge Crosbie’s sentencing. First, that the starting point nominated for the cannabis offending was too high. Secondly, that a six month uplift for offending whilst on bail was also too high, resulting in a sentence that is now submitted to be manifestly excessive.
Factual circumstances
Between March and May 2012, the Dunedin Police conducted surveillance, including interception of private communications pursuant to warrants obtained, of persons associated with the Dunedin Mongrel Mob. Mr Cook disputed at sentencing the closeness of his association with the Mongrel Mob. However, the analysis undertaken by the police of the results of their surveillance suggested that he took a primary role in arrangements for relatively large‑scale dealing in cannabis that was linked to that gang.
In March 2012, the police monitored Mr Cook’s movements, and those of certain co-offenders, when they travelled to Auckland to purchase cannabis. Whilst the vehicle they were using was unattended on a Cook Strait ferry on their return journey, the police covertly removed a consignment of approximately 3.2 kilograms of cannabis. It appears that those involved in transporting that consignment thought that it had been stolen, rather than confiscated by the police.
Then in April 2012, the police covertly monitored arrangements by Mr Cook to purchase a further consignment of some 2.7 kilograms of cannabis, which was seized when a vehicle being driven by one of Mr Cook’s co-offenders was stopped and searched.
On 1 May 2012, Mr Cook communicated with the man from whom he had arranged to buy the April consignment, to pursue the purchase of a further 2.7 kilograms of cannabis. By then, it appears Mr Cook was somewhat suspicious that his private communications might be intercepted by the police and there was reference in his dealings with the seller that another phone might be used to further the arrangements. When the police operation was terminated on 8 May 2012, there was no evidence to establish what point the proposed May transaction had reached.
These activities led to the three charges Mr Cook faced of contravention of the Misuse of Drugs Act.
Throughout the relevant period, Mr Cook was a trustee of a charitable trust called The We Against Violence Trust. The police summary stated that the trust was being operated by Mr Cook, two of his co-offenders and a fourth man, all connected with the Mongrel Mob. The trust had received grants from Te Puni Kōkiri and the Otago District Health Board of not less than $55,000 to pursue anti-domestic violence initiatives. Mr Cook had misappropriated $20,000 of the grants to fund the purchase of cannabis, and that conduct led to the charge of criminal breach of trust.
The approach on sentencing
By reference to the bands in this Court’s guideline judgment in R v Terewi,[2] the Judge characterised Mr Cook’s cannabis offending as “serious, high-end category 2 or lower‑level category 3 offending”.[3] The Judge distinguished the lower level offending of co-offenders by reference to the Terewi bands on the basis that they played reduced roles whilst Mr Cook was a primary offender. The Judge set a starting point for the cannabis offending at four years six months’ imprisonment. The Judge treated the criminal breach of trust conviction as an aggravating feature for the overall offending, justifying an uplift of nine months, providing an overall starting point for all the sentences which the sentencing notes record incorrectly as amounting to five years and six months’ imprisonment.[4]
[2] R v Terewi [1999] 3 NZLR 62 (CA).
[3] Sentencing notes at [21].
[4]Sentencing notes at [32]. The overstatement by three months is immaterial, and subsequent references to the length of sentences assume an overall starting point of five years and three months.
The Judge took a cynical view of initiatives Mr Cook had pursued for a restorative justice conference, and added discrete uplifts of six months for Mr Cook’s previous drug and dishonesty convictions, and a further six months because the present offending occurred whilst he was on bail, making a total term of six years and three months’ imprisonment.[5] The Judge then granted a discount of 25 per cent for guilty pleas, making an end sentence of four years and eight months’ imprisonment.
[5]Sentencing notes at [40]. This corrected the error commented on in n 4.
Finally, having regard to totality, and what the Judge described as “a sense of proportionality”, he reduced the sentence for the cannabis offending to three years and three months, with a cumulative sentence of nine months for the criminal breach of trust, making a combined sentence of four years to be served cumulatively on the sentence then being served.
Ground for challenge: starting point too high?
We agree with Ms Saunderson-Warner that the amounts of cannabis and the projected street value should not of themselves dictate the starting point. We also agree that the weighting to be given to particular features in each case has to be a case‑specific analysis, so that the starting points in other sentencings can only provide a guide, rather than any arithmetically calculable comparison.
Ms Saunderson-Warner submitted that the offending should not have been rated more highly than the top of band two in Terewi. She argued that the amount involved, which ought to be confined to the first two consignments of 3.2 and 2.7 kilograms, could not place the offending in band three, that the dealings with cannabis were relatively isolated constituting only two trips, first to the North Island and secondly to the West Coast, in circumstances where none of the cannabis reached retail users. Further, Ms Saunderson-Warner argued that the Judge over‑emphasised the extent of resources and commitment to the criminal enterprise when in fact acquiring significant quantities from two wholesale sources was not an indication of sophistication or extensive resources. She pointed out that at the end of the period during which Mr Cook was being monitored, there was evidence that he had insufficient resources to buy more cannabis when it was offered to him.
As against that characterisation seeking to reduce the seriousness of the offending, Mr Cook had got a substantial distance in organising a third consignment of a comparable quantity to the significant amounts acquired in March and April by the time the surveillance operation was terminated in early May. Accordingly, with the conspiracy charge the scale of dealing is appropriately reflected in all three consignments. Mr Cook’s links with the Mongrel Mob are undoubtedly relevant. They are appropriately seen as rendering the offending more serious when gang involvement provides a distribution network and an enforcement facility to the extent that any cannabis was on-sold on credit. Involvement of gangs in drug dealing provides revenue, and is grist to the mill of their criminal activities.
As to the relative sophistication, the sentencing Judge was inclined to treat the pattern and circumstances of the purchases of cannabis as offending with audacity, and we agree with that.[6] The arrangements may have been made, and the activities carried out, in a relatively straightforward manner, but there appears to have been a determination to make money out of the cannabis dealing, despite the setbacks along the way.
[6] Sentencing notes at [43].
An important feature in the offending is the misappropriation of grants funding for a charitable trust. The use of government grants to purchase bulk consignments of cannabis no doubt contributed to the sentencing Judge’s assessment of the audacity of the offending, and we also treat that feature of the offending as making it relatively more serious.
Reflecting on these relevant features, we are not persuaded that the Judge was wrong to rank Mr Cook’s offending as coming at the top of category two, or lower-level category three offending in terms of the bands in Terewi.
To the extent that the starting point can be measured for comparability with other sentencings, the Judge distinguished cases that the Crown had cited as supporting a starting point of five years.[7]
[7]Dixon v R [2011] NZCA 236; R v Jury CA148/02, 31 October 2002; Leather v R [2011] NZCA 59.
Before us, Ms Saunderson-Warner invited analogy with four High Court cases that she submitted made the starting point in the present case of four years and six months’ imprisonment excessive. In R v Brown the offender had pleaded guilty to cultivating cannabis.[8] The police had projected that a successful harvest of all the plants identified would yield approximately 122 pounds of cannabis, with a street value of $390,000. A starting point of four years and two months’ imprisonment was nominated in that case. Mr Brown’s growing activities were treated by the police as part of larger operations and the sentencing Judge noted that those primarily responsible for the operation with significantly larger roles than Mr Brown “should face a starting point of around five years imprisonment”.[9]
[8] R v Brown HC Whangarei CRI-2010-019-2895, 21 October 2010.
[9] At [14].
In R v Ngawaka, the charges were of cultivating cannabis and possession of cannabis for the purpose of sale.[10] If all material seized had been processed and sold, police projections of its value were between $1.3 million and $1.6 million. it was characterised as lower category three of the bands in Terewi, there being a lack of sophistication and no association with a criminal group, attracting a starting point of four years.
[10] R v Ngawaka [2012] NZHC 3047.
In R v Hawes, the offender was apprehended in the process of drying and processing substantial quantities of cannabis that was projected to harvest approximately 16-17 kilograms, with a potential sale value of between $110,000 and $130,000.[11] It was categorised as lower band three of Terewi, attracting a starting point of four years.
[11] R v Hawes HC Tauranga CRI-2009-069-1530, 20 November 2009.
In R v Cross, a police search identified cannabis drying and growing that was projected as having a value of $140,000 and the offender admitted that the activity had been going on for some two years.[12] It was characterised as falling within category three of Terewi, at the lower end, given a degree of complexity in the maintenance of a nursery for initial seedlings and a shed modified for temperature and moisture control for larger plants. A starting point of four years and nine months’ imprisonment was identified.
[12] R v Cross HC Hamilton CRI-2005-079-705, 6 October 2005.
Ms Saunderson-Warner argued that each of those four cases was more serious than Mr Cook’s offending, and that relativity suggested a starting point for him of three years six months’ imprisonment.
The Crown invited comparison with other sentencings, including R v Te Whata, where the offenders were members of the Christchurch Mongrel Mob.[13] The offences involved on‑going cannabis dealing on a relatively substantial scale, projected by the police to involve a turnover of $3,500 per week. On appeal, this Court treated the primary participants as attracting starting points between five and six years’ imprisonment. The Crown accepts that the scale of that offending was larger than Mr Cook was involved in, and there was a track record of the criminal activity having been on‑going for a period.
[13] R v Te Whata CA473/04, 8 April 2005.
The Crown also invited comparison with R v Reese.[14] There, the offender was one of a group charged with conspiracy to supply cannabis and possession of it, the police having located five ounces of cannabis in circumstances indicating commercial dealing. Mr Reese was treated as being at the hub of the operation and attracted a starting point of four years’ imprisonment.
[14] R v Reese HC Christchurch CRI-2005-009-10188, 15 June 2007.
The comparators Ms Saunderson-Warner cited all involved cultivation. This Court has warned of the need for caution in applying Terewi-based sentencings for cultivation of cannabis to offending involving sale or possession of cannabis for sale.[15] In cultivation cases, the scale of the activity is likely to be more easily assessed, with some allowance for the duration of the growing operation, if admissions are made or reliable evidence is available. In cases of possession for supply, absent credible admissions, the scale and duration of the offending may be no more than a snapshot of what occurred at the time of apprehension. We treat comparators involving possession for supply and conspiracy to supply as being more useful than those sentencings for cultivation where the level of sentences have been heavily influenced by the scale of growing operations.
[15] R v Walker CA356/01, 25 July 2002 at [13].
In the present case, the most significant features in rating the relative seriousness of Mr Cook’s offending were:
· the scale and relative frequency of the three actual and proposed purchases of cannabis;
· the resolve demonstrated by persisting with significant commercial scale purchases notwithstanding the confiscation of the March and April consignments;
· the criminal gang context of the offending; and
· the facilitation of the cannabis purchases by a criminal breach of trust in misappropriating $20,000 from a charitable trust.
Given those features, we are satisfied that the sentencing Judge was well within the appropriate range in nominating a starting point of four years and six months’ imprisonment.
One aspect of Ms Saunderson-Warner’s arguments challenging the starting point was that it reflected too great a disparity between Mr Cook and the starting points of three years for two of his co-offenders.[16] However, the sentencing Judges in both those cases were mindful of the lesser roles played by those co-offenders, and the relativity between three years for their lesser roles and four and a half years as the starting point for Mr Cook is well justified.
[16] R v P [2012] NZHC 2051; R v Walker DC Dunedin CRI-2012-012-1593, 11 September 2012.
The next component of the sentencing analysis was to attribute a nine month uplift for a cumulative sentence in relation to the criminal breach of trust. Clearly, had that offending stood on its own, it would have warranted a sentence of substantially more than nine months. Whilst we have reviewed the validity of the way in which a Terewi analysis contributed to the starting point, any error on that, had one existed, would not avail Mr Cook if the overall starting point was sound. Here it certainly was, and on any view the contribution of four years and six months to the overall starting point of five years and three months’ imprisonment meant that the overall starting point was unimpeachable. That is particularly so, given the prospect of reviewing the total sentence under the totality principle.
Excessive uplift for offending whilst on bail?
In assessing factors personal to Mr Cook as the offender, the Judge first took into account his raft of previous drug and dishonesty offending, which was found to justify an uplift of a further six months’ imprisonment. That component was not challenged. However, Ms Saunderson-Warner argued that it was excessive for the Judge to then go on and make a discrete uplift of a further six months for the fact that the drug offending occurred whilst Mr Cook was on bail for unrelated charges. Particularly in light of the uplift for prior offending, she submitted that an uplift of three months would have been more appropriate to reflect the aggravating feature of the offending having occurred whilst on bail.
In terms of the sequence in which events occurred, Mr Cook had been charged in relation to three counts of common assault and one of injuring with intent to injure, alleged to have occurred on 3 January 2011. He initially pleaded not guilty to those charges, and was on bail for them in the March to May 2012 period in which the present cannabis and dishonesty offending occurred. Once apprehended on the current charges, Mr Cook then pleaded guilty to the violence charges from January 2011, and on 14 August 2012 was sentenced to concurrent terms of two years and nine months and six months’ imprisonment.
Mr Cook was accordingly three months into that sentence when sentenced by Judge Crosbie on the current drug and dishonesty charges. That sequence reflects a disregard for the law which tends to aggravate or compound the resolve with which Mr Cook persisted in the present cannabis offending that does make it materially more serious. Viewing the sentencing analysis overall, no error has been made in attributing an uplift of six months to what is a relatively cynical sequence of putting off a resolution for the violent offending, continuing to offend in a concerted way, and then proceeding to a resolution on the violent offending once the latest round of drug and dishonesty offending was before the Court.
Just as there is little advantage in challenging one component of a starting point analysis, so too there is only limited point in criticising the discrete component of the uplift for offending whilst on bail when it is the overall outcome that matters. That is particularly so where the Judge’s subsequent step in the sentencing process was to stand back and weigh the final point reached against the proportionality of all the circumstances of the offending. In that final step of the process, the Judge reduced the final sentence for the cannabis offending to three years and three months’ imprisonment, being mindful that he was imposing a cumulative sentence of nine months for the criminal breach of trust, and that all sentences would not commence until Mr Cook had completed the sentence he was already serving of two years and nine months. No criticism can be made of the contribution to that final outcome of the separate uplift for offending whilst on bail.
In these circumstances, the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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