Legal Research
Cases
Cossey v R

Cossey v R

Case [2021] NZCA 677 13 December 2021

Unconscionable Conduct

Criminal Law

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA398/2021
[2021] NZCA 677

BETWEEN	ROMAN JOHN COSSEY Appellant
AND	THE QUEEN Respondent

Hearing:	1 November 2021
Court:	Kós P, Simon France and Katz JJ
Counsel:	N P Chisnall and L A Elborough for Appellant G Kayes and L Sullivan for Respondent
Judgment:	13 December 2021 at 9 am

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.

B The sentence of two years and four months’ imprisonment is quashed.

C A sentence of one year and eight months’ imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

This sentence appeal involves a claim that a total existing discount of 60 per cent (including guilty plea credit) is insufficient, and a claim that the sentencing Judge erred both in implementing the identified discounts and in omitting credit for time served as a recalled prisoner. The judgment first considers the issue of existing discounts and then addresses the other claimed errors.
Mx Cossey was sentenced by Jagose J to a final term of two years and four months’ imprisonment for methamphetamine charges — supplying, offering to supply and possessing for supply; and a charge of breaching parole conditions.[1] They had been released from prison on a drug sentence about four months prior to commencing the current offending. Mx Cossey was recalled to prison on that earlier sentence once arrested, and a final recall order was operative at the time of sentencing.
[1]R v Cossey [2021] NZHC 1333.
It is helpful by way of background to note that Mx Cossey identifies as non‑binary. They have masculine physiology but identify as female in their thoughts and feelings.[2] While on custodial remand for the current offending, Mx Cossey started taking testosterone blockers, apparently being the first person to receive this medication in prison. The reports available to the sentencing Court disclose Mx Cossey has had a damaged and traumatic upbringing involving both physical and sexual abuse, as well as dealing with internal confusion over their gender identity.

Current and past offending

[2]Taken from the Alcohol and Drug Assessment Report, written by Roger Brooking.

Between 1 December 2019 and 30 April 2020 Mx Cossey supplied methamphetamine in and around the wider Coromandel and Hauraki area. The summary of facts details an expanded criminal trafficking group, with four levels identified. Mx Cossey was part of the lowest level, and was a street-level dealer. The charges involved:
(a)supplying methamphetamine — 13 occasions totalling 12.25 grams;
(b)offering to supply methamphetamine — 23 occasions totalling 102.5 grams; and
(c)possessing methamphetamine for supply, involving 20.74 grams located on arrest, with $18,848 cash.
Mx Cossey had previously been sentenced on 25 July 2017 to a total term of seven years’ imprisonment on similar charges, involving between 110–320 grams of methamphetamine. They were released from prison on parole on 30 July 2019, so the current offending as charged started four months after release. As noted Mx Cossey has been…

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 Cossey v R

Details

AGLC: Cossey v R [2021] NZCA 677
Case: [2021] NZCA 677
Decision Date: 13 December 2021 at 9 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal against the sentence handed down by the High Court in Cossey v R. The appellant, Roman John Cossey, had been sentenced to two years and four months’ imprisonment for methamphetamine-related charges and breaching parole conditions. Cossey’s appeal centred on two main issues: first, that the total discount of 60 per cent (including the guilty plea credit) was insufficient, and second, that the sentencing judge erred by not applying credit for time served as a recalled prisoner. The Court of Appeal allowed the appeal against the sentence, finding that the sentence of two years and four months’ imprisonment was quashed and replaced with a sentence of one year and eight months’ imprisonment.

The Court of Appeal found that the total discount of 60 per cent was appropriate for Cossey’s case, considering his personal circumstances and mitigating factors. The Court was not persuaded that a higher discount was necessary, as the purposes and principles of sentencing had been taken into account. Additionally, the Court of Appeal found that there was an arithmetical error in the sentencing process, as the final sentence did not correctly reflect the applied uplift and discount. However, the Court found that this error was irrelevant, as the sentencing judge adjusted the sentence for totality reasons, more than compensating for the error.

Moreover, the Court of Appeal found that the sentencing judge erred in not applying credit for time served as a recalled prisoner. Cossey had spent 12 months serving the recalled sentence at the time of sentencing, and the Court of Appeal found that eight months was an appropriate credit for this time served. Therefore, the Court of Appeal substituted the original sentence of two years and four months’ imprisonment with a sentence of one year and eight months’ imprisonment, allowing the appeal against the sentence.

Orders