R v Cole
[2022] NZHC 1064
•13 May 2022
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-019-6031
[2022] NZHC 1064
THE QUEEN v
YOICHI MARTIN COLE
Hearing: 13 May 2022 Appearances:
K Whyte for the Crown
G D Prentice on instructions from W N Dollimore for the Defendant
Judgment:
13 May 2022
(REDACTED) SENTENCING NOTES OF GORDON J
This judgment is delivered by me on 13 May 2022 at 1pm.
.....................................................
Registrar / Deputy Registrar
Solicitors/Counsel:
Kaleb Whyte, Crown Solicitor, Hamilton Glen Prentice, Barrister, Hamilton
R v COLE [2022] NZHC 1064 [13 May 2022]
Introduction
[1]Mr Cole, you appear for sentencing on the following charges:1
(a)Supplying a Class A drug (methamphetamine);2
(b)Supplying a Class A drug (gamma-butyrolactone aka GBL);3
(c)Offering to supply a Class A drug (GBL).4
[2]The maximum penalty for dealing methamphetamine is life imprisonment.
[3] The facts of your offending are set out in my sentence indication.5 I will not repeat them here. My sentence indication will be attached to these remarks and form part of them. In brief, you acted as a street level dealer and supplied 0.5 of a gram of methamphetamine on one occasion, and unspecified amounts on two occasions. You also supplied GBL on three occasions and offered to supply GBL on three further occasions.
[4] On 24 March 2022 I gave a sentence indication of eight months’ imprisonment, with the possibility of Home Detention or a community-based sentence. You accepted this indication on 1 April 2022 and pleaded guilty to all charges.
Approach to Sentencing
[5] Mr Cole, in sentencing you today, I am required to take into account the purposes and principles of sentencing as contained in the Sentencing Act 2002 (the Act).6 In particular, I must impose a sentence which: holds you accountable for the harm methamphetamine offending does to the community; promotes in you a sense of responsibility and acknowledgement of that harm; denounces your conduct; and deters
1 The defendant was charged with two charges of supplying methamphetamine. The two charges have been amalgamated for sentencing purposes.
2 Misuse of Drugs Act 1975, s 6(1)(c) and (2): maximum penalty life imprisonment.
3 Misuse of Drugs Act, s 6(1)(c) and (2): maximum penalty 14 years’ imprisonment.
4 Misuse of Drugs Act, s 6(1)(c) and (2): maximum penalty 14 years’ imprisonment.
5 R v Cole [2022] NZHC 557.
6 Sections 7 and 8.
you and any other person from committing similar offences in future. The sentence I impose must also reflect the gravity of your offending, the seriousness of this type of offending and the desirability of consistency with appropriate sentencing levels.7
[6] On the other hand, I must be mindful of the need to assist in your rehabilitation and reintegration into the community. Accordingly, I must impose the least restrictive outcome that is appropriate in the circumstances.8
Personal circumstances
PAC report
[7] I have been provided with a Provision of Advice to the Court (PAC report), dated 27 April 2022. This a report prepared by the Department of Corrections. It was not available to me at the sentence indication.
[8] I note that the report is generally favourable and recommends a sentence of Home Detention but also considers Community Detention, Intensive Supervision or Supervision as other options. The report emphasises that you have shown remorse and taken steps towards rehabilitation while on bail.
[9] I understand from the report that you live with your sister and her partner in Pukekohe, South Auckland. You say they are your main support in the community, as your parents are both deceased. You have regular contact with your seven-year-old daughter, who lives in Gulf Harbour, north of Auckland.
[10] You are 44 years old. You are a design engineer by trade, and you are currently employed as a labourer by a civil engineering company, completing water and storm water network replacement.
[11] The PAC report states that you have conveyed a genuine sense of remorse with regard to your offending and that you have apologised for any harm you may have caused. The report-writer says that you convey a good level of self-awareness and
7 Section 7(1) (a),(b),(e) and (f).
8 Sections 7(1)(h) and 8(g).
understand the significant negative impact your choices have had on yourself and those around you.
[12] You have acknowledged the harm that your offending caused and have taken responsibility for the damage methamphetamine use and dealing does, both to yourself and the people close to you. You told the report-writer that your life began to "fall apart" during lock down in March 2020, when you lost your driver's licence and your job. You say you initially “dabbled” in the drug, but your addiction became “worse and worse and [you] fell deep into that world”.
[13] The PAC report confirms my finding in the sentence indication that you were a low level, street supplier who did not profit from your dealing.
[14] You now have a new driver's licence, a bank account and a solid support network and you appear to be moving forward in a much more positive direction. You told the report-writer that you now have “the cornerstones of life in place".
[15] The report identifies drug-use as the only relevant offending-related factor. You self-report that you have not used methamphetamine since you were arrested on the current charges in December 2020.
[16] The report recommends that you attend and complete an alcohol and drug treatment programme with an approved agency to enable you to continue living in your current situation and to support you to cope with the stresses and triggers of everyday life. You present as motivated to complete addiction recovery treatment.
Discussion
[17] The Court of Appeal in its decision Zhang v R held that the impact of addiction as a trigger for drug offending should be carefully considered as a mitigating factor at sentencing.9 I accept – based on the contents of the PAC report – that your addiction to methamphetamine and GBL was causative of your offending. You told the PAC report-writer “I didn't touch any money. I never profited. It supplemented my own
9 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [139] – [150].
supply. I was helping friends out to make a connection [to a supplier], … in that world, it is normal behaviour”. As I noted in your sentence indication, you had a lesser role in the offending and dealt in small quantities at street level. You offended to facilitate your own drug use and there is no evidence that you expected or achieved any financial gain from your dealing.
[18] You have provided the Court with an assessment prepared by an addiction counsellor, Poovanthran Naidu. He reports that you started using class A drugs (methamphetamine and GBL) six years ago. You started dealing small amounts to maintain your habit and addiction. You told Mr Naidu that you have been drug-free while on bail and you are willing to undergo drug testing to prove it. The assessment is generally positive and indicates that you show insight into the harm caused by your offending and you are motivated to change your behaviour and engage with addiction treatment programmes. Mr Naidu recommends that you attend self-help groups in the community, such as Narcotics Anonymous, as well as individual addiction counselling to maintain your current abstinence.
[19] The Court of Appeal in Zhang held that “addiction may logically give rise to a discount of up to 30 per cent of the sentence depending on the extent to which it mitigates moral culpability for the offending”, and commented that this figure was not necessarily to be regarded as an upper limit.10
[20] In Zhang, the Court allowed a discount of 30 per cent for personal circumstances in relation to the lowest level offender in the group, Ms Crighton. This discount reflected a combination of factors which the Court found were interconnected: childhood trauma and abuse; intimate partner violence; mental health issues, including depression, anxiety and PTSD,11 and methamphetamine addiction.
[21] In your case, Mr Cole, addiction is the only relevant factor. Mr Naidu reports that you had a stable childhood, without any experience of alcohol or drug abuse by the adults in your life. You have had good job opportunities and travelled abroad. In
10 At [149].
11 Post-Traumatic Stress Disorder.
these circumstances, I consider that a discount of 15 per cent is appropriate to reflect the extent to which addiction was a causative factor in your offending.
Restrictive bail conditions
[22] Mr Dollimore on your behalf in his written submissions submitted you should also receive a discount for time spent on restrictive bail conditions. I do not accept that submission. Your bail was subject to relatively standard conditions: residential; not to possess or consume drugs (other than prescribed or legal drugs); non- association; and not to go to a particular address. Today Mr Prentice appearing on instructions from Mr Dollimore properly recognised that your bail conditions do not attract a discount and the submission was not pursued today.
Sentencing calculation
[23] At the sentence indication I adopted a starting point of 10 months’ imprisonment for your offending, and allowed a discount of 20 per cent for a guilty plea. As you pleaded guilty to all charges following the indication, this discount will be allowed as indicated.
[24] Given the information now before the Court, I am able to consider and apply further discounts for the following factors:
a)Addiction: 15 per cent; and
b)Rehabilitative steps taken (including relocation, full-time employment, driver’s licence) and prospects of rehabilitation (strong family support and full-time employment): 10 per cent.
[25] If I were to impose a sentence of imprisonment, the length of the term would be calculated in this way. The starting point of 10 months’ imprisonment would be adjusted as follows to take into account matters personal to you: 20 per cent discount for your guilty plea; 15 per cent discount for addiction; and 10 per cent for your rehabilitative efforts and prospects of rehabilitation. This is an overall discount of 45 per cent. When that discount is applied to the starting point of 10 months’ imprisonment the end sentence would be five-and-a-half months’ imprisonment.
[26] I next need to decide whether the purposes and principles of sentencing can be met by a sentence other than a sentence of imprisonment.
Type of sentence
[27]The PAC report recommends a sentence of Home Detention.
[28] You are assessed by Corrections as having a low risk of reoffending and a medium risk of harm to others. The risk of harm to others reflects the very significant harm which methamphetamine is known to cause in the community. You have previously been subject to four community-based sentences and you are currently subject to a sentence of community work. Your ability to comply with conditions associated with a community-based sentence is assessed as medium, on account of three historic breaches of periodic detention.
[29] Your sister’s address is assessed as suitable for an electronically monitored sentence. The occupants of the address have consented to supporting your compliance with this type of sentence. You have already complied with bail conditions at the proposed address and you are fortunate to have family support.
[30] Mr Prentice submits that a short sentence of Community Detention combined with a period of either Supervision or Intensive Supervision would be appropriate. He observes that a sentence of Home Detention may cause difficulties with your current employment. He tells me that you are very proud of your work and you wish to remain in your role. I accept Mr Prentice’s submission that employment retention is an important consideration.
[31] Mr Whyte for the Crown submits that Home Detention is the appropriate sentence and he notes that steps you have taken with a counsellor were relatively late in the piece. I acknowledge the latter point made by Mr Whyte but this step has nevertheless been taken by you and you are to be commended for that.
[32] The Court must impose the least restrictive sentence which is appropriate in all the circumstances. I consider that a sentence of Community Detention of three months, together with a period of 12 months of Intensive Supervision, would enable
you to continue the progress that you have made towards addiction recovery, while on bail.
Result
[33]Mr Cole would you please stand.
[34] I sentence you to three months’ Community Detention which will be subject to the standard conditions in the Act. During the three month period of your Community Detention the following further conditions apply:
(a)You are to live at [redacted] for the duration of the sentence of Community Detention;
(b)You are to be present at [redacted] between 8 pm and 5 am Monday to Sunday inclusive for the duration of Community Detention; and
(c)The first day of your curfew is today, 13 May 2022.
[35] I further sentence you to 12 months of Intensive Supervision which will be subject to the standard conditions in the Act as well as the following special conditions:
(a)You are not to possess, consume or use any alcohol or drugs not prescribed to you;
(b)You are to attend and complete an appropriate Alcohol and Drug programme to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer; and
(c)You are to submit to drug testing from time to time at intervals determined by a Probation Officer.
[36] The Crown offers no evidence against you on charge 7 (but that charge remains on foot in relation to other defendants). You are accordingly discharged on charge 7 (which was one of the two supply charges amalgamated into one charge).
[37]Stand down please Mr Cole.
Gordon J