Cotton v The Queen - [2018] NZHC 2686

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…

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 Cotton v The Queen

Details

AGLC: Cotton v The Queen [2018] NZHC 2686
Case: [2018] NZHC 2686
Decision Date: 17 October 2018

CaseChat Overview and Summary

In this case, Brent Rodney Cotton appeals his sentence imposed by the District Court for possessing methamphetamine for supply. The appeal concerns the Judge's failure to adequately consider the absence of commerciality when setting the starting point for the sentence. The legal issue at hand was whether the Judge erred in his approach to the absence of commerciality, and whether the sentence imposed was manifestly excessive. The Court of Appeal had previously stated that in cases involving small quantities of drugs for personal consumption and no commerciality, sentences may lie beneath the bands set out in R v Fatu. The appellant argued that the starting point should have been lower, considering the non-commercial nature of the offending and the fact that a proportion of the drugs would be for personal use. The Crown argued that the starting point was appropriate, and any discount for lack of commerciality was unnecessary.

The High Court found that while there was flexibility for a sentencing judge to temper the application of the Fatu bands to reflect the circumstances of the case, the four-year starting point for 47 grams of methamphetamine was within range, arguably at the lower end, even when factoring in possession for personal use. The court considered the potential harm caused by the supply of drugs, the defendant's own recognition of that harm, and the statutory presumption of imprisonment for supplying or possessing a Class A controlled drug. Ultimately, the Court found that the sentence was not manifestly excessive and dismissed the appeal.

No specific orders were made in this case, as the appeal was dismissed.

Orders