R v Codlin HC Whangarei CRI 2011-088-000814
[2011] NZHC 877
•26 July 2011
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2011-088-000814
THE QUEEN
v
SANDI NESTA CODLIN RODERICK GEORGE LEONARD
Hearing: 26 July 2011
Counsel: N J Dore for the Crown
J S Day for the Prisoners
Judgment: 26 July 2011
SENTENCING NOTES OF WYLIE J
Distribution:
N J Dore: [email protected]
J S Day: [email protected]
R V S N CODLIN & ANOR HC WHA CRI 2011-088-000814 26 July 2011
[1] Mr Leonard, you appear for sentence today having entered a plea of guilty to selling the Class C controlled drug cannabis. You have also entered a plea of guilty to possessing cannabis for supply. These are respectively offences under s 6(1)(d) and (f) of the Misuse of Drugs Act 1975, and they are both subject to a maximum penalty of eight years’ imprisonment.
[2] Ms Codlin, you appear for sentence today having entered a plea of guilty to the charge of possession of cannabis for supply. That is an offence pursuant to s 6(1)(f) of the Misuse of Drugs Act, again punishable by a maximum penalty of eight years’ imprisonment.
[3] Mr Leonard, your plea was entered on 7 March 2011. Ms Codlin, your plea was entered on 23 March 2011. Both of you were charged with the offences on
28 February 2011, and you both appeared before the District Court on 1 March 2011. The District Court has transferred the matter to this Court for sentencing pursuant to s 6(3) of the Misuse of Drugs Act, and the rule in R v McCleod.[1]
[1] R v McCleod [1998] 2 NZLR 65.
Relevant Facts
[4] On 28 February 2011, the Police executed a search warrant at your address in Hikurangi, near Whangarei. Both of you were home at the time. The Police search revealed the following items:
(a) A security monitor camera;
(b) A cannabis pipe and a half-used cannabis tinnie;
(c) Two notebooks – which the Police describe as “tick lists”;
(d)A plastic snap-lock bag filled with approximately 2.2 grams of cannabis that was found in your handbag, Ms Codlin;
(e) A plastic snap-lock bag filled with approximately 8.3 grams of cannabis. That was found in your underwear drawer Ms Codlin;
(f) Cash totalling $1,970, in $50 and $20 note denominations;
(g)Two plastic snap-lock bags which you, Mr Leonard, attempted to throw over a neighbour’s fence immediately prior to the Police’s entry onto the property. One bag contained two cannabis tinnies (1.6 grams of cannabis), and the other 25 cannabis tinnies (20.2 grams of cannabis), and
(h)A small cannabis seedling which had been planted outside on the property.
[5] Approximately 32.3 grams of cannabis was seized during the raid.
[6] After the Police raid, you, Mr Leonard, admitted possession of the cannabis, but claimed that you only ever sold it to friends. You denied that the notebooks were tick lists. Ms Codlin, you denied any involvement, but admitted to owning the cannabis found in your handbag.
Pre-Sentence Reports
Mr Leonard
[7] Mr Leonard, you are 51 years of age, and you have been on remand in the Northland Region Corrections Facility since 1 March 2011. Before this you lived with Ms Codlin in Hikurangi, and you were in receipt of a benefit. You have five children, and one grandchild. By all accounts, your upbringing was not a happy one. Between the ages of seven and 11, you attended a boarding school for “behavioural issues”. At the age of 15, you left school. At the age of 16, you tried heroin for the first time, and by the age of 17, you were in prison for the possession of heroin. Around the same time, you began associating with gangs. In your early to mid- thirties, you attempted to pull away from the gang culture, and starting receiving
methadone to treat your drug addiction. You remain on methadone as I understand it.
[8] While you have pleaded guilty to the charges of possession for supply and selling cannabis, I am told that you contest the Police summary of facts, and claim that the tinnies of cannabis found were to help you to regulate your own drug use, and that the tick list was an exercise regime record. You further claim that the offending was a victimless crime, and that being remanded in custody was therefore inappropriate. You have asserted that you only entered a guilty plea because you were led to believe that if you did so, the Police would drop the charge against Ms Codlin.
[9] You have a long history of offending and imprisonment. You have received
18 separate terms of imprisonment over the last 35 years and been convicted of 134 offences. The convictions span a wide range of offending including serious violence-related offending, six charges relating to drug offending, illegal possession of weapons, and property crimes. You received your last prison sentence in 1992. You currently have a sentence of 40 hours of community work, and while your past compliance with this sentence has been poor, as at 6 January 2011, you had completed 27.5 hours of the sentence. You have 16 convictions for breach of sentence, and five for breach of bail conditions.
[10] The probation officer assesses your risk of reoffending as moderate, and your motivation to change your behaviour as low. While the report notes that you have expressed a desire to receive any help you can in relation to your drug addiction, the probation officer has cautioned against taking this statement at face value, given that you have never voluntarily taken up offers of counselling previously extended to you.
[11] The probation officer recommends a sentence of imprisonment, with release conditions requiring you to attend a drug assessment course and complete an appropriate drug abuse programme.
Ms Codlin
[12] Ms Codlin, you are 37 years of age. You were born and raised in Whangarei. Since Mr Leonard was incarcerated, you have continued to reside in Hikurangi by yourself. You have two daughters aged 11 and eight. As I understand it, they either live with other family members or have been taken into care by Child, Youth and Family services. You describe your upbringing as being largely affectionless, but you seem to have derived some satisfaction from your schooling. However, at age
14, you left school to work in a supermarket. By the age of 15, you had tried heroin for the first time, and shortly thereafter, you moved in with a 19 year-old male who was involved with drugs. Since the age of 16 you have received a benefit. You have also been on a methadone programme. You were on that programme from 1998 to
2003, and it helped you to stop using heavy drugs. You have stated that your father, sister and a close friend are supportive of you in your endeavours to lead an offence- free lifestyle. Although you report that you do not drink alcohol, you do state that you “self medicate” daily with cannabis. Drug screening tests suggest that you have a harmful pattern of drug use. You acknowledge that you have a drug abuse problem, and you have referred yourself to the Northland District Health Board Addiction Services for the “Making changes” programme.
[13] You agree that the cannabis found in your handbag was yours, but you deny that you have supplied cannabis. Rather, you explained that Mr Leonard was supplying the drug. You state that you did not ask him to leave the property, because he “looked out for you”, and because you felt vulnerable due to problems you were experiencing with your ex-partner at the time. You acknowledge that you used cannabis which Mr Leonard gave to you, but, according to the probation officer’s report, you are genuinely remorseful for your current offending, and more widely for your past life choices and offending.
[14] You have five previous drug-related convictions dating from 1998 to 2004, including four convictions for possession of equipment and one of producing heroin. You also have three shoplifting convictions, three minor driving charges, and one conviction for failing to comply with a probation officer’s requirements.
[15] The probation officer considers that you are motivated to change, and that you have insight into your situation. He feels that it may be beneficial for you to participate in a short rehabilitation programme for women, which will help you examine the causes of your offending and develop specific skills to stop reoffending. You appear motivated and able to attend such a programme. You are assessed as being at a medium risk of further offending, although the probation officer has warned that that risk may increase if your drug abuse is not addressed.
[16] The probation officer has noted that your continued daily use of cannabis may be a barrier to the imposition of a community-based sentence. Nevertheless, the officer recommended a sentence of community detention, community work, and intensive supervision with conditions to attend and complete, if suitable, an alcohol and drug programme, and a Departmental Rehabilitation Programme.
Submissions
[17] Mr Stevens for the Crown submitted that your offending (that is the offending of both of you) falls within what is known as Category 2 in the case of R v Terewi.[2]
He suggested that a starting point of two and a half to three years’ imprisonment was appropriate for your offending Mr Leonard, given what he suggested was your role as the primary instigator of the cannabis operation. He submitted that an uplift was necessary given your previous convictions, in particular for drug-related offending. He acknowledged that a 25 per cent discount is appropriate given your early guilty plea.
[2] R v Terewi [1999] 3 NZLR 62.
[18] In relation to your offending, Ms Codlin, Mr Stevens submitted that a starting point of two to two and a half years’ imprisonment is appropriate, given your lesser role in the operation. Again, he submitted that an uplift for your previous convictions was appropriate and acknowledged that a 25 per cent discount should be allowed for your guilty plea. He submitted that a non-custodial sentence would be inappropriate, given that the dealing to which you have pleaded guilty took place
from your home.
[19] Mr Day, on your behalf Mr Leonard, submitted that your offending falls toward the lower end of Category 2 in Terewi, and that a final sentence of less than two years would be appropriate. He acknowledged that there is no appropriate residential address available for a sentence of home detention or community detention, and accepted that a period of imprisonment is inevitable. He submitted however that there needs to be a focus on drug counselling treatment post-release.
[20] He put it to me that I should not impose an uplift in relation to your prior convictions, given that your prior convictions in relation to drug-related offending were some years ago. Further, he put before me a letter from you dated 28 May
2011, in which you acknowledge responsibility for the offending. He suggested that that letter shows a degree of remorse on your part.
[21] On your behalf Ms Codlin, Mr Day submitted that the final sentence should be less than two years, and that a sentence of community detention coupled with community work and supervision is appropriate. He argued that I should take into account your early guilty plea, your cooperation with the Police, your remorse, and the fact that you have already voluntarily begun to address your drug problem. He also submitted that the fact that you were not a principal in the enterprise needs to be taken into account.
Principles of Sentencing
[22] In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act 2002. In particular, I have had regard to the need to hold both of you accountable for your offending, the need to promote in both of you a sense of responsibility for, and an acknowledgement of your offending, and the need to denounce the conduct in which you were both involved. I am also mindful of the need to deter others from committing the same or similar offences. This is a primary factor in drug-related offending such as this. I have taken into account the gravity of the offending with which you were both involved, including your respective degrees of culpability. I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels with similar
offenders committing similar offences. I am also mindful that I must impose the least restrictive outcome that is appropriate in the circumstances.
[23] I have also considered aggravating features under s 9 of the Act. Clearly, there was a degree of premeditation to your offending. The security camera, the notebooks, and the pre-wrapped tinnies, all suggest that the cannabis operation was organised. Under s 9(4), I am entitled to take into account such other factors as I consider appropriate. There is one matter of significant concern – namely, that Ms Codlin’s nine year-old daughter was living at the address at the time of the offending. I note the assurances you have given in Court this morning that you both endeavoured to keep the offending from her.
Analysis
[24] The lead case in relation to cannabis-related offending is R v Terewi.[3] In that case, the Court of Appeal discussed various guidelines. The discussion was in the context of the cultivation of cannabis, but it has subsequently been extended to apply in cases involving possession for supply, and the sale of cannabis.[4]
[3] [1999] 3 NZLR 62 (CA).
[4] See R v Keefe CA 275/02 28 November 2002
[25] Terewi sets out three broad categories of cannabis-related offending. In the present case, Category 2 is relevant. It relates to small-scale cultivation, or sale or possession for supply, of cannabis, for a commercial purpose. The general starting point is in the region of two to four years’ imprisonment, but it may be lower if the sales are infrequent and of limited extent.
[26] Relevantly, it was also stated in Terewi as follows:[5]
As with any drug offending for the purpose of profit making, the personal circumstances of the offender whose activities fall within Categories 2 and 3 are usually not to be given much significance in the sentencing process. The fundamental requirement is that the sentence imposed should act as a deterrent to other persons minded to engage in similar activity.
[5] [1999] 3 NZLR 62 (CA) at [66].
[27] The offending in which you were both involved clearly falls within band 2. In my view, it is toward the bottom end of band 2 offending. I reach that conclusion based on the amount of cannabis found, the amount of cash found in your possession, and the other items seized at the address.
[28] I have considered the sentences imposed for similar offending. In particular, I have referred to R v Awa, where Asher J adopted a starting point of two years’ imprisonment in relation to an offender who pleaded guilty to possession of cannabis for supply. [6] Twenty six tinnies and 26 grams of cannabis were discovered. I have also referred to R v Packer, where Stevens J adopted a starting point of two years’ imprisonment, for an offender who pleaded guilty to possession of cannabis for supply, and two counts of selling cannabis. [7] The Police found four cannabis tinnies,
[6] R v Awa HC Auckland CRI 2007-035-0021, 17 February 2009.
[7] R v Packer HC Rotorua CRI 2008-063-0444, 5 September 2008.
30 grams of cannabis plant material in the living room area, four blister packs of cannabis resin, 42 cannabis seeds, and cannabis utensils. In R v Breitmeyer, the offender was convicted of five counts of selling cannabis, and a representative charge of supplying cannabis. [8] The offender played a secondary role in the operation of a full-blown tinnie house with her partner, who was the principal organiser of the enterprise. The fact that she had previously been convicted of cannabis offending for which she had been sentenced to two years’ imprisonment was deemed to be a serious aggravating feature. The starting point adopted was
[8] R v Breitmeyer CA 17/04, 6 July 2004.
three and a half years’ imprisonment. In R v Whara Whara, Asher J adopted a starting point of two years and six month’ imprisonment in relation to an offender who was selling cannabis, and who had possession of cannabis for supply. [9] The Police found nearly 100 grams of cannabis divided into small amounts, and $1,290 in cash. In R v Tupaea, Winkelmann J adopted a starting point of two years and four months’ imprisonment in respect of an offender who pleaded guilty to possession of cannabis for supply. [10] The Police found 70 cannabis tinnies, five grams of loose
[9] R v Whara Whara HC Hamilton CRI 2006-019-9951, 28 June 2007.
[10] R v Tupaea HC Auckland CRI 2006-057-2052, 15 May 2007.
seed cannabis, and $420 in cash at the offender’s premises.
Mr Leonard
[29] Mr Leonard, it is clear that you were the main offender. You accept that in the letter which you have made available to me. It is also clear that the operation was reasonably sophisticated. That is shown by the security camera found on the premises. It also appears that the operation had been generating significant amounts of cash. I note that $1,970 was found in the house when the Police raided it. I also note your assertions that that money came from the sale of a Harley Davidson motor and gearbox. I further note that you attempted to throw over the neighbour’s fence a bag containing cannabis tinnies. The amount of cannabis found in your and Ms Codlin’s possession was 32.3 grams.
[30] I bear in mind that cannabis offending is endemic in Northland, and that it causes irreparable harm to the community over a number of levels.
[31] The fact that Ms Codlin’s nine year-old daughter was resident at the premises is also an aggravating feature to the offending. So is the fact that the offending occurred while you were subject to a sentence of community work.
[32] Accordingly, I propose to adopt a starting point of two years and nine
months’ imprisonment.
[33] I now turn to consider aggravating features personal to you.
[34] First, there is your appalling criminal history. A number of those offences, ranging from 1977 through until 1993 are in respect of drug-related offending. I accept that that drug-related offending occurred some time ago, but I note that you also have 16 convictions for breach of conditions of sentence or community work, and that you have five convictions for breach of bail. It is clear that the sentences imposed on you in the past have had little or no effect. In my view, an uplift of nine months is appropriate to recognise your previous criminal history.
[35] There is one mitigating factor, namely your early guilty plea. I accept that a discount of 25 per cent, or 10 and a half months, is appropriate to recognise that plea.
Notwithstanding Mr Day’s submissions on your behalf, I do not consider that any further discount is appropriate. At the time that you were interviewed by the probation officer you did not express remorse. Indeed, at that stage, you seemed intent on justifying your offending, and seeking to down-play it. While I accept that there is an element of remorse expressed in your letter, and that you accept responsibility for the offending, I have some difficulty in accepting the sincerity of the remorse expressed given your attitude at the time that you were interviewed by the probation officer. Accordingly, I do not propose to allow you any further discount for remorse.
[36] Mr Leonard, will you please stand.
[37] In respect of the offences of being in possession for supply and selling cannabis, you are sentenced to a term of imprisonment of two years, seven months and two weeks on each offence. The terms of imprisonment are to be served concurrently.
[38] Mr Leonard, I note that you are also currently subject to a sentence of community work and that there is some time outstanding in relation to that sentence. By consent, I cancel the outstanding hours of community work.
[39] You may sit.
Ms Codlin
[40] Ms Codlin, I now turn to consider your offending.
[41] I accept that your offending was less significant than that of Mr Leonard. Nevertheless, you became involved in the cannabis operation. You allowed the offending to go on in your home where your daughter resided. In my view, the appropriate starting point in relation to your offending is one of two years and three months’ imprisonment.
[42] Turning to factors personal to you, I acknowledge the point made by Mr Day that your drug-related convictions are relatively limited. I accept that the remainder of your convictions are for traffic offences, and shoplifting, and they have no obvious significance for present purposes. In my view, an uplift of one month is appropriate to recognise your earlier criminal history.
[43] I now consider mitigating factors. First, there is your guilty plea. I accept that you are entitled to a 25 per cent, or seven months’ discount, for that plea. I also accept that you have shown remorse, and a degree of insight into your offending, and that you have taken steps to try and rehabilitate yourself. I am prepared to allow you a further discount of two months, or just under 10 per cent, for that remorse.
[44] Ms Codlin, in respect of the offence of being in possession of cannabis for the purpose of supply, you are sentenced to a term of imprisonment of one year and seven months.
[45] I have considered the probation officer’s recommendations, and the submissions made on your behalf by Mr Day relating to community detention, community work, or intensive supervision. I regret that I am not prepared to impose a sentence of that kind.
[46] The offending in respect of which you have pleaded guilty occurred in the home. Were I to sentence you to a community-based sentence, you would be going back into that home. I note the observations of the Court of Appeal in R v Polyanszky.[11] Imposing a sentence of home detention or a similar community-based sentence in cases where the offending has occurred in the home environment is unusual. Such sentences undermine the deterrent effect of sentencing and diminish the public’s perception of judicial authority. Further, in your case, there is the fact that you “self medicate” cannabis on a daily basis. That is another feature which
[11] Polyanszky v R [2011] NZCA 4
suggests that a community-based sentence would be inappropriate.
[47] In my view, the relatively short sentence of imprisonment which I have imposed is the appropriate sentence to impose in your case.
[48] On your release from prison, you are to be subject to the following release conditions:
(a) You are to attend an assessment for alcohol and drug addiction;
(b)You are to attend and complete an appropriate alcohol and drug programme as recommended by that assessment, to the satisfaction of your probation officer and the programme provider. Details of the appropriate programme are to be determined by your probation officer; and
(c) You are to be assessed for and, if found suitable, undertake and complete a Departmental Rehabilitation Programme, and abide by the rules of the programme to the satisfaction of the programme provider and the probation officer.
[49] These conditions are to apply for a period of six months following your release.
Forfeiture
[50] The Crown seeks forfeiture of the drugs, drug-related paraphernalia and cash found in your possession at the time that your property was searched.
[51] There is no objection by Mr Day on your behalf to forfeiture of the drugs and drug-related paraphernalia and I make an order accordingly.
[52] In relation to the cash found on the property, Mr Day on your behalf does object to that sum being forfeited. He asserts that the money came from the sale of a Harley Davidson motor and gearbox. As I understand it, it is asserted that the total amount realised from the proceeds of sale was $5,000. It is said that the sale took place a month or two earlier, and that the cash found in your possession represented the balance of the proceeds of sale.
[53] Section 32(3) of the Misuse of Drugs Act 1975 provides that I can order that the monies found be forfeited to the Crown if I am satisfied that the money was received by you in the course of, or consent upon, the commission of the offences in respect of which you have pleaded guilty.
[54] Having considered the circumstances and the explanation provided, I am so satisfied. First, I note the surrounding circumstances, and the fact that the cannabis was packaged for sale. Secondly, I note that the money was found in $50 and $20 note denominations. Thirdly, I note the presence of other items on the premises which suggest that this was a commercial operation.
[55] There is nothing to support the assertion that the money came from the sale of a Harley Davidson motor and gearbox. I am satisfied on the balance of probabilities that the money was received by one or both of you consequent on the commission of the offences and accordingly, I forfeit the same to the Crown.
[56] You may both stand down.
Wylie J
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