R v Coker HC Wellington CRI-2007-091-1213

[2007] NZHC 1782

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2007-091-1213

THE QUEEN

v

KORU MEIHANA COKER

Appearances: J Murdoch for Crown

I M Antunovic for Prisoner

Sentence:       1 June 2007

SENTENCE OF GENDALL J

[1]      Koru Meihana Coker, you appear for sentence having pleaded guilty in the District Court at Porirua for possession of the class A controlled drug methamphetamine for the purpose of supply.  You were remanded to this Court for sentence and the facts upon which I sentence you can be shortly described and are as follows.

[2]      On 10 April 2007 the police executed a search warrant at your property and there they found 59.6 grams of methamphetamine.   The police say based upon a current retail price of $1,000 per gram which is well known, that has a street value of approximately $59,000.   That of course is if it is sold in point bags (and you will know what they are) which are $100 a bag.  If it is sold in larger amounts in the form

of grams or even ounces, then there is discounted amounts so that the other people in

R V COKER HC WN CRI-2007-091-1213  1 June 2007

the chain can make their share of profit.  But in any event the methamphetamine was of a substantial quantity and a substantial value and at least in excess of $40,000.

[3]      In addition cash was found at your property of $41,620 and a set of electronic scales, which are clearly used for weighing methamphetamine.   Much of the methamphetamine that was located was made up into a variety of common dealing bags,  whether  point  bags,  ounce  bags,  was  immaterial.    Examination  of  your cellphone revealed numerous text messages, which are consistent with commercial dealing in methamphetamine.

[4]      The pre-sentence report has described you as being aged 25, unemployed, and a total of 23 previous convictions since 1999.  Two are drug-related but of fairly inconsequential significance, they being possession of cannabis and possession of utensils.  As is unfortunately common in the cases of dealing, you were a daily user of drugs and I accept that much of your dealing was to support your habit.  That is a very common feature.  You become your own best customer.  The Probation Service says there is a moderate risk of re-offending on your part if your drug abuse is untreated.

[5]      Mr Antunovic submitted, and I accept, that this was a commercial enterprise within band 2 of R v Fatu [2006] 2 NZLR 72 (CA) which I will talk about in a moment. But it was not sophisticated in the way that we often see with dealers who have all manner of paraphernalia, including police scanners and gang contacts. Mr Antunovic has submitted that you co-operated with the police and you are a good father. Clearly, you have the support of your family who are here, and credit is to be given to you for the guilty plea, although counsel accepts the proposition that for class A drug dealing personal circumstances are of limited weight. It is clear, as has been accepted, that you fall clearly and squarely within the second band of what is the well known authority of Fatu.  That provides a range of 3-9 years’ imprisonment for this type of commercial dealing in methamphetamine.

[6]      Now a sentencing band simply indicates a starting point which might reflect your  culpability  before  any  allowance  is  given  for  aggravating  and  mitigating factors. It must be remembered, however, that Fatu was concerned with establishing

sentencing bands once an offender has shown to supply a quantity of drugs.  In some instances no drugs at all were found and the Court has to do its best to assess the culpability and the band into which a person fits.  So matters such as paraphernalia, and other factors, may assist the sentencing Judge in determining where within the band an offender might appropriately lie.   This was emphasised by the Court of Appeal in R v Faifua CA287/05 27 March 2006 at [13] where it said this:

“Once the band (that is the Fatu band) has been determined (on the basis of quantity  of  methamphetamine  involved),  the  sentencing  Judge  is  then required to consider a myriad factors in determining where within the band the starting point in that particular case should be fixed.  In that assessment, the precise quantity of drugs is but one factor among many.”

[7]      So, apart from the quantity of drugs, their purity (if that is known), the fact that there is possession for supply, rather than actual supply, the Court of Appeal said there may be other features of the overall offending (the scanner, the scales, the pipe, the large sum of cash and the possession of a firearm) which would suggest that in that  case,  the accused was a serious dealer,  for  whom deterrence  must  be a primary focus of the sentencing.  Those other matters clearly justify a movement of the starting point towards the middle or upper end of the band.  Those comments of the Court of Appeal were made in the context of an appeal against sentence of seven years’ imprisonment, held not to be excessive, after the appellant was convicted by a jury of possession of methamphetamine and cannabis, for the purpose of supply comprising 21.58 grams of methamphetamine.   There were of course, other aggravating features.  So that simply illustrates that the precise quantity of the drugs is but one factor, but the overall offending has to be looked at to determine the culpability of a person and whether they are a serious commercial dealer for whom deterrence must be a primary focus.

[8]      In your case I think the proper starting point is six years’ imprisonment.  You are entitled to the mitigating features of your co-operation with the police, your very prompt plea of guilty, the references that I have seen, and the expressions of support that you have.  You are very fortunate to have a caring and loving family and your life is really just beginning, so all is not lost thankfully.

[9]      The aggravating features, however, include your previous criminal record, and obviously – no – I was going to say, but I am just going to correct myself – I was going to say the paraphernalia and the like are aggravating, but those are matters which I took into account in fixing the starting point of six years.  I will not double count.

[10]     In terms of your guilty plea I think that, plus your co-operation, entitles you a discount from the starting point of six years of 15 months’ imprisonment.  Against that must be factored the aggravating features of your previous convictions.   That requires an uplift of three months.  As a consequence the proper sentence for your crime is a term of imprisonment of five years.  Now you will have heard me recite Fatu where seven years’ imprisonment was upheld by the Court of Appeal for 21.58 grams.  It had other nasty features about it and did not have a guilty plea.  So I hope you will see the sentence of five years’ imprisonment  as being merciful and as lenient as the Court can be when sentencing dealers in the class A drug methamphetamine.

[11]     Accordingly, you are sentenced to a term of five years’ imprisonment.   An order is made forfeiting to the Crown the cash found in your possession, namely

$41,620 pursuant to s32(3) of the Misuse of Drugs Act 1975.  I am very grateful to both counsel for the quality of their submissions.

……………………………….

J W Gendall J

Solicitors:

Crown Solicitor, Wellington

I M Antunovic, Wellington for Prisoner