R v Cohen HC Auckland CRI 2006-044-8408
[2007] NZHC 1939
•29 June 2007
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2006-044-8408
THE QUEEN
v
MICHAEL JOHN COHEN
Charge:Offering to supply Class A controlled drug; Selling Class C controlled drug (2)
Plea: Guilty
Appearances: Philip Smith for Crown
Geoffrey Anderson for Prisoner
Sentenced: 29 June 2007
Selling cannabis – 2 years imprisonment on each charge Offering to supply methamphetamine – 1 year imprisonment (all terms concurrent); Leave to apply for home detention
SENTENCING NOTES OF HARRISON J
SOLICITORS
Marsden Woods Inskip & Smith (Whangarei) for Crown
Geoffrey Anderson (Auckland) for Prisoner
R V COHEN HC AK CRI 2006-044-8408 29 June 2007
Introduction
[1] Mr Cohen, you appear for sentence today having entered pleas of guilty to one charge of offering to sell methamphetamine, a Class A drug, and two charges of selling cannabis, a Class C drug. On the first charge the maximum term of imprisonment which I could impose is one of life. On the second two, the maximum term is eight years.
[2] Viewed in that context, the first charge of offering to supply methamphetamine is the most serious. However, in terms of actual offending, the more serious charges here are those of selling cannabis. In terms of your wrongdoing or culpability they are rated more gravely. Accordingly, as you heard me say to Mr Smith, I intend to treat them as the lead or index offences for the purposes of imposing sentence. By that, Mr Cohen, I mean that your sentence will be determined primarily by those two charges, but I will also take into account under what we call the totality principle your methamphetamine offence. In the end the sentences that I impose will be concurrent (that is, side by side) and not cumulative or additional to each other. Within that, though, as I have just said, I will take into account the totality of your offending.
[3] Before dealing with the formal parts of your sentencing, I formally record my appreciation to Mr Smith for the Crown and Mr Anderson for you for their written and oral submissions. Both are fair and balanced.
[4] I acknowledge in Court today the presence of your partner and your father. On many occasions I have the misfortune to sentence a prisoner who is on his own. The presence of supporters who are prepared to provide assistance and affection is a great factor in your favour. It means that the prospects for the future for you are better than they would be for others. Also I acknowledge the numerous letters that have been sent in support of you today. Mr Anderson has given me copies. Again they have operated to your advantage.
Facts
[5] I deal first with the facts. The charge of offering to supply methamphetamine arises from an undercover operation carried out by the police in the Kaitaia area between August and November 2005. On numerous occasions over this period one of the constables communicated with you. The medium was cellphone calls and text messages. You discussed the potential supply of methamphetamine. Somebody else had told the constables that you would be able to sell that drug. On one occasion you informed the constable that it would cost him $800 to $1,000 per gram. It is common ground that nothing eventuated from it. Mr Anderson submits that your participation was more out of puffery or bravado than anything else. He may be correct.
[6] The other two offences are, as I said, more serious. On 16 November 2005, as a result of your association with the police officer, you arranged for a sale through an associate of one pound of cannabis for $4,000. The police officer gave you that money. I accept that you were not the supplier, you were not the source of the drugs, and that you received $200 for your participation. You took an enormous risk for what by any means was a very small reward.
[7] The circumstances of the other offence five days later are identical. On that occasion the police officer purchased half a pound of cannabis from you for $2,000. Using the same measurements as for the previous transaction, your share in the deal was a gift of $100. So out of all of this you made $300 and you stand today exposed to a term of imprisonment.
Starting Point
[8] Against that background I must fix what is called the starting point for your sentence. The starting point is the term of imprisonment which would be appropriate to reflect your culpability or wrongdoing measured solely by reference to the circumstances of the offences before I take into account any adverse or favourable
personal circumstances. I can tell you now, Mr Cohen, that there are favourable circumstances which I will come to later.
[9] As noted before, Mr Smith and Mr Anderson agree that the lead offence here is the selling cannabis. You fall into the well known category of small scale dealers in a drug for the purpose of deriving a profit. There was without doubt a commercial element to your involvement. On the well settled legal authorities, the appropriate starting point for you is between two years and four years imprisonment: R v Terewi [1999] 3 NZLR 62 (CA).
[10] There is, however, one important factor that goes into the mix. Mr Smith very fairly accepts that, while you cannot get a discount as such for this reason, it is relevant that you were a middle-man or go-between when I assess the starting point. It is common ground that you did not stand to make any great profit. As I have said before, your share was $300. That factor on its own would operate to reduce what would otherwise be the appropriate starting point.
[11] Against that, though, as Mr Smith has rightly emphasised, you committed the very serious offence of offering to supply methamphetamine. Your participation may have been borne out of bravado; you may not have had any real prospect of obtaining access to that drug and supplying it to the officers. Nevertheless, again as Mr Smith has emphasised, the mere fact of your involvement in dealing with such an evil drug is enough of itself to justify a term of imprisonment. So I take that into account as well when I fix the starting point overall.
[12] In my judgment the appropriate starting point here is a term of three years imprisonment. I am fortified in that conclusion by the sentences imposed by Potter J in R v Mann HC WHA S06-088-1489 15 June 2006 and R v McNicholl HC WHA S05-4447 8 June 2006. Mr Smith has provided me with copies of both notes.
Personal Circumstances
[13] Against that starting point of three years imprisonment, Mr Cohen, I must take into account favourable circumstances.
[14] First and foremost there is your plea of guilty. In your case I accept that it has a special meaning. It represents a turning point in your life. You have acknowledged your wrongdoing. It is a measure of your contrition and sorrow. It has also meant that the State has not had to commit its resources and time to prosecuting you through a trial. You will obtain a substantial discount on that ground alone.
[15] Then there are your other personal circumstances. I accept that you are a person of otherwise good character. I leave aside the minor convictions in 1995. The probation report paints a sympathetic and favourable picture of you. You are
35 years of age. You are the eldest of three males. You were born and raised in Wellington in a generally stable environment. While your parents have separated recently, both of them have stood by you today. Each has written meaningful letters to me.
[16] There is your own financial situation. You and your father jointly own a home. You contribute to the mortgage outgoings on the property. You have stable employment as a bus driver. Your partner, with whom you have lived for three years, relies on your permanent and constant assistance. She has written in a moving way about how much you have done for her in life.
[17] The probation officer reports you as presenting a low risk of re-offending. My analysis of the circumstances supports that evaluation. I accept Mr Anderson’s submission that you committed these offences at a low point in your life. You know that you must pay a penalty for them.
[18] In all the circumstances, Mr Cohen, I am prepared to allow a discount of one- third against the starting point of three years imprisonment. That means that the ultimate term imposed upon you on the charges of selling cannabis is two years imprisonment on each charge. The term of imprisonment imposed on the charge of offering to supply methamphetamine is one year. All those three sentences are to be served concurrently.
[19] The real effect of your favourable circumstances and my satisfaction that you want to follow a path of rehabilitation is that I accept Mr Anderson’s submission and grant you leave to apply for home detention. Moreover, I accept that there are humanitarian grounds for taking that step. Accordingly, I am prepared to grant you bail for a period until either two months have expired or a decision has been made by the Parole Board on your application for home detention, whichever event occurs the first.
[20] Before you stand down, Mr Cohen, you have committed, as you know, serious offences. For what it is worth, I share the confidence of others that you can get your life back together on the right track as you have lately and make a positive and worthwhile contribution to society. If you take those steps I wish you well.
Please stand down.
Rhys Harrison J
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