R v Cole - [2012] NZHC 2482

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-085-001856 [2012] NZHC 2482

THE QUEEN

v

KELLY LOUISE COLE

Hearing: 25 September 2012

Counsel: S K Barr for Crown
I M Antunovic for Prisoner

Sentence: 25 September 2012

SENTENCING NOTES OF DOBSON J

[1] For a period of some 19 months between the beginning of July 2009 and mid February 2011, you and your partner were at the centre of a substantial operation dealing in the class A drug methamphetamine. You have pleaded guilty to a single charge each of conspiring to supply methamphetamine, conspiring to supply cannabis, selling cannabis, conspiring to engage in money laundering transactions, participating in an organised criminal group and conspiring to obstruct justice. In addition, you have pleaded guilty to four charges of engaging in money laundering transactions. The conviction for conspiracy to supply methamphetamine is the most serious and it carries a maximum penalty of 14 years’ imprisonment.

[2] Your partner, Paul Rodgers, was sentenced in this Court on 7 September 2012 on a range of similar convictions, but including the somewhat more serious

R v COLE HC WN CRI-2011-085-001856 [25 September 2012]

conviction of supplying methamphetamine, to 15 years’ imprisonment. A number of others involved in the methamphetamine dealing have also been sentenced in this Court. I am mindful of the need for consistent treatment, but because there is a range of distinguishing features, the sentences imposed in those other cases are difficult to use as direct parallels.

[3] As to the nature and extent of the offending, the summary of the position as prepared by the Police is supplemented by the findings of Kós J after the disputed facts hearing requested on behalf of Mr Rodgers. You elected to give evidence at that hearing, and I have had regard to the findings the Judge made in respect of your evidence.

[4] The operation involved Mr Rodgers arranging to buy consignments of methamphetamine being manufactured under the control of a supplier operating from an Auckland prison. Mr Rodgers directed another of the group, Mr A, to get the methamphetamine. Mr Rodgers then supervised Mr A in diluting the pure methamphetamine received by doubling its volume with a cutting agent, and then Mr A would sell the methamphetamine on in smaller quantities. Kós J found that those arrangements involved Mr Rodgers being in possession of at least 60 ounces or
1,680 grams of pure methamphetamine in the relevant period.1

[5] An adult daughter of yours, Niniwa, and her partner were dealing in a relatively small way with cannabis tinnies. In December 2010, when other sources of cannabis were apparently not available to them, you responded to a request from her that Mr Rodgers or associates might source cannabis for Niniwa to package and on-sell. You were able to arrange that. At the end of December 2010, Niniwa and her partner were located with four and a half ounces of cannabis, with the Police inferring that it was to be packaged into tinnies for sale.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cole

Details

AGLC: R v Cole [2012] NZHC 2482
Case: [2012] NZHC 2482
Decision Date: 25 September 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Kelly Louise Cole was sentenced on a variety of drug and criminal charges. The court considered her involvement in a methamphetamine supply operation, her role in money laundering, her conspiracy to obstruct justice, and her participation in an organized criminal group. The central legal issue was determining an appropriate sentence that reflected the seriousness of Cole's offenses, her culpability, and her personal circumstances. The court examined guidelines from previous cases and determined an 11-year and 6-month starting point for the most serious offense, conspiracy to supply methamphetamine. After applying various mitigating factors, including Cole's history of abuse and her guilty plea, the court settled on a final sentence of five years and ten months imprisonment. The court also imposed concurrent sentences on the remaining charges.

Cole was originally charged along with two others, Smith and Whittington, who were dealers at a lower level in the methamphetamine supply chain. The court did not consider comparing Cole's sentence with theirs as it would not be helpful. The court considered imposing a sentence of home detention instead of imprisonment due to Cole's care responsibilities for her youngest son. However, the court found that imprisonment was necessary to appropriately denounce and deter Cole's serious criminal conduct. The court also noted that Cole had outstanding fines of $6,300 which it could not remit but invited her counsel to apply to the District Court for remission.

Orders