R v Cochrane HC Whangarei CRI-2010-027-143

[2011] NZHC 226

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2010-027-143

THE QUEEN

v

NICHOLE COCHRANE

Hearing:         18 March 2011

Appearances: Mr M B Smith for Crown

Mr N Leader for Prisoner

Judgment:      18 March 2011

SENTENCING REMARKS OF LANG J

R V N COCHRANE HC WHA CRI-2010-027-143 18 March 2011

[1]      Ms Cochrane, you appear for sentence today having pleaded guilty following committal for trial in this Court on 13 charges of conspiring to supply methamphetamine.  Each of those charges carries a maximum sentence of 14 years imprisonment.

The facts

[2]      The  charges  arise  out  of  a  police  operation  in  Northland  in  which  they targeted persons they believed to be involved in burglaries in rural areas.  The police obtained warrants authorising them to intercept cellphone conversations and text messages, and they discovered that these people were also involved in drug dealing in a reasonably widespread way.  You quickly became identified as one of the people who was involved in the supply of methamphetamine.  The police obtained a large number of text messages from your cellphone.  In these, you candidly discussed the acquisition and on-sale of methamphetamine on numerous occasions.

[3]      The  13  charges  to  which  you  have  pleaded  guilty  are,  in  a  sense, representative.   Each of them relates to the dealings that you had with a different person, either in relation to the acquisition of drugs or supply of drugs.

[4]      Generally speaking, you dealt in point bag quantities or quantities not much greater than that.  That is evident from the fact that virtually every acquisition or on- sale of methamphetamine was for $100 or $200.   $100 is the commonly adopted street sale sale price of a point bag of methamphetamine.  It is clear, however, that you were dealing on a regular basis.  You acquired methamphetamine from a variety of sources and you on-supplied it to a variety of customers.  You therefore fall to be sentenced as a busy street level dealer.

[5]      I accept, however, that some of the methamphetamine was acquired for your own use because it is clear that you consumed a great deal of methamphetamine at the time of  your offending.   There is,  however,  a  commercial  element  to  your offending.   On one occasion when the police went to your address they found the trappings of a dealer, including a tick book.   In addition, there are numerous references in the text messages to the need to chase up monies owing by your

customers.  Your counsel says that unexplained deposits to your bank account total approximately $780, and you say that that is the extent to which you made monetary profits from your offending.  I do not know whether or not that is the case but even if it is, no doubt other profits were used to acquire more methamphetamine for your own use.

Sentencing Act 2002

[6]      In sentencing you I need to bear in mind the purposes and principles in our Sentencing Act 2002.   In any case of commercial drug dealing at a Class A level, issues of deterrence and denunciation are to the forefront. You must by now know of the menace that methamphetamine has become.  It destroys families, it destroys the fabric  of  our  society  and  leads  people  to  commit  crimes  that  they  would  not otherwise commit.   You yourself are a living example of the problems that methamphetamine causes in our society.  All of this means is that the only way in which  the  courts  can  contribute  to  dealing  with  this  scourge  is  by  imposing significant sentences on drug dealers when they are apprehended.

[7]      Having said that, I am also required to impose a sentence that is the least restrictive outcome that is possible, having regard to all the circumstances.  I am also required to impose a sentence that reflects the gravity of your offending, and is broadly consistent with sentences imposed in other similar cases.

Starting point

[8]      The starting point in relation to the sentence to be  imposed in any case involving dealing in methamphetamine is a decision of our Court of Appeal in R v Fatu[1].   In that case the Court of Appeal identified bands of offending for manufacturing, importing and supplying methamphetamine.

[1] [2006] 2 NZLR 72

[9]      Although the amount of methamphetamine involved in any given case is an important factor, the Court emphasised in Fatu that what a sentencing court must do

is have regard to all of the circumstances when fixing a starting point.  Generally,

however, the Court said that where an offender supplies up to five grams of methamphetamine, the starting point will be between two and four years imprisonment.   In cases involving the supply of between five and 250 grams of methamphetamine, the starting point will be between three and nine years imprisonment.

[10]     Counsel agree that your offending falls towards the lower end of the second band involving supplies of between five and 250 grams.  I agree with that assessment and  have  conducted  a  survey  of  cases  that  counsel  have  supplied  me  before sentencing this morning.[2]     The Crown submits that, had you been charged with supply, the starting point would be around four years imprisonment.  Your counsel submits that it is significantly lower than that, and that I should adopt a starting point in this context of around three years imprisonment.

[2] R v Johnson HC Whangarei CRI-2006-088-1233, 27 September 2006; R v Hayward-Howie HC Hamilton CRI-2007-019-10310, 15 March 2010; R v Lockart-Blundell HC Rotorua CRI-2006-063-4690, 11 March 2008; R v Mikhail HC Wellington CRI-2006-085-5929, 7 July 2008 and R v I’u HC Auckland CRI-2007-004-009815 4 March 2008.

[11]     Having regard to the cases, I take the view that, had you been charged with supply, a starting point of three years six months imprisonment would have been appropriate.  That is not, however, the starting point that I adopt because you have not been charged with supply.  Rather, the Crown has charged you with conspiracy to supply methamphetamine.     There is a difference, because supplying methamphetamine carries a maximum sentence of life imprisonment, whereas conspiracy to supply methamphetamine carries a maximum sentence of 14 years imprisonment.  In selecting a starting point, I am required to have regard to the fact that Parliament has seen fit to prescribe a lower maximum sentence for a charge of conspiracy than it has done for actual supply.

[12]     Having said that, the Supreme Court in R v Jarden[3]and the Court of Appeal in R v Te Rure[4]and R v Williams[5]have made it clear that there is no automatic discount to any particular level when an offender is sentenced on conspiracy charges

rather  than  charges  of  actual  supply.    Both  Courts  have  said  that,  where  the

conspiracy has proceeded to point beyond mere agreement and has been brought to fruition, there may be very little difference in the criminality involved and hence very little difference in the starting point to be selected.   In your case, of course, there is no doubt that actual supplies occurred and to the extent of at least ten grams. That being the case, I consider that there is very little distinction between your culpability as a conspirator and that to be accorded to an actual supplier.

[3] [2008] NZSC 69

[4] [2007] NZCA 305

[5] [2008] NZCA 383

[13]     I therefore propose to reduce the starting point by 15 per cent to reflect that particular factor.  This means that the actual starting point that I select is one of two years 11 months imprisonment.

Aggravating factors

[14]     You have no previous convictions and, on that basis, there is no aggravating factor that needs to be added to the mix to increase that starting point.

Mitigating factors

[15]     I do, however, need to have regard to mitigating factors personal to you. Your counsel submits that there are several of these.  First, he points to the fact that you have pleaded guilty, albeit not at the earliest stage.  The effect to be given to a guilty plea is now governed by the decision of our Supreme Court in R v Hessell[6].  In that case, the Supreme Court acknowledged that an early guilty plea will attract more credit than a later guilty plea.  It said, however, that the timing of a guilty plea is not

the only factor to be taken into account.   Instead, the Court must adopt a holistic approach and look at all the circumstances, including the strength of the Crown case.

[6] [2010] NZSC 135

[16]     It  has  to  be  said,  Ms  Cochrane,  that  had  you  proceeded  to  trial  your conviction was inevitable based on the text messages that you sent and received.  I have some knowledge of these, because I have presided over a number of pre-trial hearings relating to the trial at which you were to be a part.  It is clear from those

that you were reasonably open about the subject matter of your communications.

[17]     You first appeared in December 2009.   You  were committed for trial in August 2010, and you ultimately entered guilty pleas in February 2011.  That is a considerable way down the track of the criminal justice process.

[18]     Having regard to those factors, I propose to give you a discount of 15 per cent for your guilty pleas.  That is against the maximum that is allowable in terms of Hessell of 25 per cent.

[19]     In addition to that, I propose to allow a further five per cent approximately to reflect the fact that you have endeavoured to rehabilitate yourself since the date upon which you were arrested.  You say that this has been a time of reflection.  You have undergone counselling and you say that you are now determined to rid yourself of your reliance on methamphetamine.

[20]     Taking that discount into account, I consider that an end sentence of two years two months imprisonment is appropriate on all charges.

Home detention

[21]     That means that home detention is not an option for you.  It is important that I emphasise, however, that I do not consider that a sentence of home detention would have been an option in your case in any event, even if your sentence had been less than two years.  The scale of your offending was simply too great, Ms Cochrane, to enable  that  to  occur.    Secondly,  although  you  are  now  remorseful  and  have undergone some rehabilitation, that did not occur for some significant period.  All in all, I consider that home detention would have been out of the question even if you qualified for such a sentence.

Sentence

[22]     On each of the charges to which you have pleaded guilty I impose a sentence of two years two months imprisonment.

[23]     Stand down.

Lang J

Solicitors:
Crown Solicitor, Whangarei
Counsel:
Mr N Leader