Cotton v The Queen
[2018] NZHC 2686
•17 October 2018
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2018-441-26
[2018] NZHC 2686
BETWEEN BRENT RODNEY COTTON
Appellant
AND
THE QUEEN
Respondent
Hearing: 9 October 2018 Counsel:
E J Forster for Appellant
C C Gullidge for Respondent
Judgment:
17 October 2018
JUDGMENT OF THOMAS J
[1] The appellant, Mr Cotton, was sentenced by Judge Rea in the District Court to two years and three months’ imprisonment following a guilty plea to one charge of possessing methamphetamine for supply.1 Mr Cotton now appeals that sentence on the basis that the Judge erred in failing to consider the absence of commerciality in adopting the starting point for the sentence.
Factual background
[2] In early 2018, Mr Cotton had allowed his friend to use his car. Some time later, Mr Cotton’s friend reported that the car had been forcibly taken from him. On 2 March 2018, Mr Cotton was spoken to by the Napier police about that report. Mr Cotton told the police he was not convinced of the truth of his friend’s report. Mr Cotton explained his friends battled bad methamphetamine addictions. When the police asked if
1 R v Cotton [2018] NZDC 13421; and Misuse of Drugs Act 1975, s 6(1)(f) and (2), maximum penalty life imprisonment.
COTTON v R [2018] NZHC 2686 [17 October 2018]
Mr Cotton had any methamphetamine on him, he replied, “Obviously I do”. The police found a small quantity of methamphetamine in a backpack, and a larger quantity in another bag, totalling 47 grams. Mr Cotton stated he had found the drugs in Auckland, having arrived from there earlier that morning.
[3] Mr Cotton is 57 years old. Other than the conviction relating to this appeal, he has no criminal history. Prior to being charged, he had been in long-term employment as a flight attendant. His mother died 12 months before the offending.
[4] The presentence report found Mr Cotton had a low likelihood of reoffending based on his lack of prior offences and the significant impact the conviction would have on him. Mr Cotton had told the presentence report writer that he did not consider himself a supplier or drug dealer but said he shared his methamphetamine with a group of his friends. He did not accept he had harmed the community and was described as being somewhat naive about the dangers of drug use. Mr Cotton reported that he himself used methamphetamine recreationally and did not consider he was dependent on it.
District Court decision
[5] In assessing the offending, the sentencing Judge described 47 grams as a “considerable quantity”, the greater portion of which was intended for supply with the potential to do “significant harm in the community”. Having considered the need for specific and general deterrence, he adopted a starting point of four years’ imprisonment.
[6] The Judge recognised a lack of commerciality and lack of previous convictions by way of a 25 per cent discount, taking the sentence to three years. He then applied a further 25 per cent discount for Mr Cotton’s early guilty plea, resulting in the final sentence of two years and three months’ imprisonment.
Law
[7] This appeal falls to be considered under s 250 of the Criminal Procedure Act 2011, whereby an appellate court must allow an appeal if it first finds an error in the
sentence and is then satisfied that a different sentence ought to be imposed. The Court of Appeal in Tutakangahau v R confirmed that s 250 does not change the error principle approach:2 an appellate court must find a vitiating error, material to the decision, before exercising the discretion to vary a sentence. The Court also confirmed that, despite s 250 making no express reference to “manifestly excessive”, the test may still be applied to sentence appeals.3
[8] The guideline judgment for Class A drug offending is R v Fatu.4 The Court of Appeal made the following general comments:
[31] Our sentencing ranges overlap between categories. Where an offender fits within any particular band will depend not just on the quantity and purity of the drugs involved but also the role played by the offender. Those who are primary offenders can expect starting point sentences towards the higher end of the relevant band, with the converse applying to those whose role is less significant. Obviously the sentencing Judge will also need to take into account the principles of sentencing referred to in s 8 of the Sentencing Act 2002. Further, the aggravating and mitigating factors relevant to the offending (as opposed to the offender), as set out in s 9 of the Sentencing Act, will also be highly relevant in fixing the starting point within a particular band.
[32] In cases involving importation and supply, considerations of commerciality may be significant. Indeed, as will become apparent, we think that in importation cases involving only small quantities of the drug for personal consumption, the appropriate sentencing response may lie outside (that is, beneath) the bands postulated (see para [34]). In cases involving supply, there is an obvious culpability difference between those who supply for gain and those who give small quantities of drugs to friends for their personal consumption (or, perhaps, buy small quantities of drugs for their friends). Where there is a complete absence of commerciality and an absence of aggravating features (for example, an aggravating feature such as the supply of drugs to schoolchildren or other young people) sentencing Judges may sentence beneath the bands postulated in para [34].
[9]Specifically in relation to offending involving supply, the Court said:
[33] We have referred to the sentencing bands proposed in Arthur (see para [8]). With one modification, we are content to adopt those bands for offending involving the supply of methamphetamine. The Court in Arthur indicated that the “large commercial quantity” category may well require further subdivision (at para [23]). After consideration, we think it desirable to ensure a gradation in sentencing response which is broadly referable to the quantity of methamphetamine involved in the offending. Where the quantity concerned is in excess of 500 g, we would see the appropriate starting range as being ten
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 [26]–[31].
3 At [33] and [35].
4 R v Fatu [2006] 2 NZLR 72 (CA).
years’ imprisonment or more. Longer sentences will be appropriate where the quantities are appreciably larger, to reflect the fact that dealing in methamphetamine now potentially attracts a life sentence.
[34] The result is that we adopt the following sentencing bands in cases involving the sale or supply of methamphetamine:
(a)Band one – low-level supply (less than 5 g) – two years’ to four years’ imprisonment.
(b)Band two – supplying commercial quantities (5 g to 250 g) – three years’ to nine years’ imprisonment.
(c)Band three – supplying large commercial quantities (250 g to 500 g) – eight years’ to 11 years’ imprisonment.
(d)Band four – supplying very large commercial quantities (500 g or more) – ten years’ to life imprisonment.
We emphasise that these are starting points, before taking into account aggravating and mitigating factors relating to the offender (as opposed to the offending). We also note that supply in small quantities where there is no commerciality and no other aggravating features may call for starting points less than those indicated as appropriate for band one.
Analysis
[10] Mr Forster, for the appellant, submitted the Judge erred in his approach to non-commerciality by applying the sentencing bands at [34] of Fatu without proper reference to the Court of Appeal’s comments at [32]. He conceded the Judge recognised the lack of commerciality by way of a discount to the starting point. However, he submitted that discount does not reflect the way in which such an absence of commerciality ought to be addressed.
[11] Mr Forster identified the following factors as relevant to setting the starting point:
(a)the non-commercial nature of the offending;
(b)a proportion of the 47 grams would be for personal use, reducing the amount that could be considered for supply;
(c)the nature of the supply would be sharing amongst friends; and
(d)the absence of other aggravating factors.
[12] Mr Forster submitted the starting point should have been in the vicinity of two years and six months’ imprisonment. He suggested a further four months could be deducted for previous good character, along with the guilty plea 25 per cent discount. That approach would bring the sentence to 19.5 months’ imprisonment, at which point home detention could be considered.
[13] Mr Gullidge, for the respondent, submitted the Court of Appeal in Fatu required both non-commerciality and small amounts in order to benefit from a lower starting point than the bands suggested in that judgment. He pointed out that 47 grams is almost 10 times the threshold amount for band two and would have a retail value of over $20,000. He referred to the comments in the presentence report which suggest Mr Cotton has less of an addiction than his friends, meaning the majority would be for supply rather than personal use. He suggested it is implausible that Mr Cotton was giving the methamphetamine away for free. He referred to Nauleo v R and Williams v R, where there were little indicia of commerciality and starting points of four and
3.5 years were adopted, respectively.5 He noted the amount found in Mr Cotton’s bags
was in excess of that found in those cases. On that basis, he submitted the starting point was well within range.
[14] Whilst he acknowledged the Judge’s approach to non-commerciality was unorthodox, Mr Gullidge submitted the combined discount for that, assistance to the police and lack of previous convictions was generous. He suggested, because the starting point was appropriate, any discount for lack of commerciality was unnecessary. He submitted a 10 per cent discount would have been appropriate to recognise assistance to the police and five per cent to recognise the lack of previous convictions. The end sentence was not manifestly excessive, in his submission.
[15] In cases involving possession of methamphetamine for supply where weights ranged between 33 and 55 grams and where the offending included indicia of
5 Nauleo v R [2017] NZHC 2149; and Williams v R [2017] NZHC 1859.
commerciality, starting points ranging from four to five and a half years’ imprisonment are commonly taken.6
[16] I have also considered cases where the sentence specifically recognised an absence of commerciality. In R v MacPherson, the defendant was charged with a variety of offences relating to aiding a person to evade the police.7 This included supplying the person with methamphetamine. The defendant was caught by police in possession of 14 grams of methamphetamine for this purpose. Ellen France J stated:
[36] Turning then to the possession of methamphetamine for supply. This was an unusual example of this sort of offending. It was simply for Mr Smith’s use. There was no commercial element, therefore, it does not particularly fall within the Fatu analysis. It is appropriate to add a 1 year cumulative term for this offending. In reaching that figure I take into account factors I now discuss.
[17] In R v Hart, the defendant pleaded guilty to four charges of supplying methamphetamine to her terminally ill ex-partner to assist with side effects of his pain relief medication.8 Duffy J set a starting point of three years, saying:
[45] Under normal circumstances where there is an element of commerciality, offending which involved 33 grams of methamphetamine would attract a starting point of between four and five years’ imprisonment. However, as you were only supplying to your former husband, there is the mitigating factor of a lack of commerciality being present. This places your offending at the very bottom of band 2, or indeed, in terms of the principle in MacPherson, it may remove it from band 2 altogether. I consider that however it is formulated, the appropriate starting point here is one of three years’ imprisonment. I find the case of Reti particularly helpful, as that case involved 30 grams of methamphetamine, and there there was a starting point of three years.
[46] It should be emphasised that your case, Ms Hart, has unique facts, which means that a strict application of the bands in Fatu is not justified and, as I have said in this regard, the approach suggested in MacPherson, where a departure from the bands in Fatu may be warranted is relevant.
[18] With that context, I then turn to consider the sentence imposed in the District Court and whether it was manifestly excessive. At sentencing, the defence submitted for a starting point of four years. The Crown submitted a starting point of four years
6 Reid v R [2013] NZCA 89; Nauleo v R, above n 5; R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338; R v Allan HC Auckland CRI-2008-044-4178, 2 September 2008; and R v Xia HC Auckland CRI-2006-092-9456, 12 August 2008.
7 R v MacPherson HC Hamilton CRI-2006- 019-1950, 11 May 2006.
8 R v Hart HC Auckland CRI-2009-043-1288, 4 February 2010.
six months’ imprisonment was appropriate, recognising there was no indicia of commerciality. The Judge took a starting point of four years on an orthodox Fatu analysis, prior to considering the lack of commerciality.9 In my view, the four year starting point for possession of 47 grams was within range, arguably at the lower end, even when factoring in possession for personal use.
[19] There was some debate between Mr Forster and Mr Gullidge as to whether the Court of Appeal’s comments at [32] of Fatu could apply only to band one, given the Court of Appeal said in [32] that cases involving only small quantities of the drug for personal consumption may result in a sentence beneath the bands set out in [34]. Mr Gullidge relied on the fact [34] makes particular mention that small quantities where there is no commerciality and no other aggravating features may call for starting points less than those indicated as appropriate for band one.
[20] I do not doubt there is flexibility for a sentencing judge to temper the application of the Fatu bands to reflect the circumstances of the case and, in particular, a lack of commerciality. The fact that band two begins with quantities of five grams, the presumptive quantity for supply, would seem to demonstrate the point.
[21] Forty-seven grams of methamphetamine is, however, a reasonably substantial amount. The Judge was correct, in my view, to emphasise the potential of the methamphetamine to do serious harm. Indeed, Mr Cotton’s own comments to the police recognised that. He told the police that his friends were all battling “bad” methamphetamine addictions. Therefore, while there might not have been any outright commerciality in Mr Cotton’s supply of drugs to his friends, the damage caused by the supply was something he himself recognised. I regard that as an aggravating factor.
[22] I recognise that Mr Cotton himself used methamphetamine. He is 57 years old with no prior convictions. With that in mind, there is some force to the submission questioning the utility of a sentence of imprisonment. As against that is the statutory
9 R v Fatu, above n 4.
presumption of imprisonment for any person convicted of supplying or possessing for supply, a class A controlled drug.10
[23] Standing back, I am not satisfied that an amended starting point, prior to a guilty plea discount, of three years’ imprisonment for possessing 47 grams of methamphetamine, some for personal use but what could be fairly be said to be the majority to supply to friends addicted to methamphetamine, where the defendant has no prior convictions and gave assistance to the police, is overall manifestly excessive. Mr Cotton then received the full 25 per cent discount for a guilty plea where the evidence was extremely strong.
[24] In the circumstances, I am not satisfied the sentence was manifestly excessive. The appeal is dismissed.
Thomas J
Solicitors:
Crown Solicitor’s Office, Napier
10 Misuse of Drugs Act 1975, s 6(4).
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