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.  Those events have led to your present conviction for conspiracy to supply cannabis.

[6]      Your involvement in the methamphetamine operation included acting as a bookkeeper  or  administrator,  keeping  track  of  the  liabilities  incurred  with  the

supplier and credit given to those to whom methamphetamine was supplied.   It

1      R v Rodgers [2012] NZHC 2054 at [61].

extended to involvement in purchases of motor cycles and motor vehicles, and their modification, for both Mr Rodgers and for the supplier.  Your part in handling the money for such transactions when either cash was paid or a credit card used and then payments off the credit card liability were made, has given rise to four charges of engaging in money laundering transactions, to all of which you have also pleaded guilty.

[7]      In  December  2010,  you  were  aware  that  the  Police  were  looking  for  a member of your group, a Mr John McDonald, who had been an enforcer Mr Rodgers used to collect debts. A confrontation Mr McDonald was involved in had turned into a serious assault involving a stabbing.  To assist him avoiding the Police, you helped him to hide from the Police, including making arrangements to rent a property in Eketahuna where he might “lie low”.   Mr McDonald was arrested on a train from Wellington  to  Masterton,  before  he  could  make  it  to  Eketahuna,  but  your involvement in those matters has led to a charge of conspiracy to obstruct the course of justice, to which you have also pleaded guilty.

[8]      Finally, Mr Rodgers was the head of one part of the Nomads gang and the associates involved in this offending were also members or associates of that gang. You, too, are attributed with an association with the gang, and that led to the last of your charges, namely participating in an organised criminal group.   So, that is the extent of the convictions involved in today’s sentencing.

[9]      In sentencing you, I have to be guided by certain purposes set out in the Sentencing Act 2002.  The important purposes here include holding you accountable for the harm done to victims of the offending and the community, to promote in you a sense of responsibility for that harm, to denounce your conduct and to deter you and others from committing such offences.2

[10]     There are also certain principles of sentencing that I have to have regard to and they include having regard to the relative gravity of the offending in your case and  your  level  of  culpability for  it,  taking  into  account  the  seriousness  of  this

offending in comparison with other types of offending, as reflected in the maximum

2      Sentencing Act 2002, s 7.

penalties  prescribed,  being  mindful  to  relate  the  relative  seriousness  of  your offending to the most serious offending that might arise under the offences you are convicted  of.    I have  also  to  seek  consistency  with  comparable  offending,  and ultimately to  impose  the  least  restrictive  outcome  that  is  appropriate  in  all  the circumstances.  Obviously, I must also have regard to your personal circumstances

and relatively how severely an appropriate sentence will impact on you personally.3

[11]     Mr Antunovic  has  submitted  this  morning  that  the  sentencing  of  your co-offenders is sufficient to reflect the necessary denunciation and deterrence.  Given the nature and the period over which your offending occurred, I cannot accept that and I have to reflect denunciation and deterrence of the offending you have pleaded guilty to separately on this sentencing.

[12]     The process is for me to identify, first, a starting point that is appropriate to reflect the relative seriousness of the offending.  I will then consider factors that are personal to you as the offender that might justify either increasing that starting point or reducing it.

[13]     In the first stage, I am guided by earlier judgments, particularly from the Court of Appeal, that set guidelines for the appropriate starting point for various levels of seriousness within particular offences.  You will have heard counsel refer to earlier cases recognised as providing guidance for offending of this type, and I will take them into account as appropriate.

[14]     Counsel are agreed that I should set a starting point for the most serious offending, namely the conspiracy to supply methamphetamine, on the basis that I would then impose concurrent sentences on the less serious convictions, and at the end then stand back to ensure that any uplift on the starting point that I add to reflect the additional convictions is neither too much nor too little to reflect the totality of

the offending on which you are being sentenced.4

3      Sentencing Act 2002, s 8.

4      Sentencing Act 2002, ss 84 and 85.

[15]     The guideline judgment on supply of methamphetamine is R v Fatu.5    The most serious of four bands in terms of quantities is for over 500 grams or more where the range of starting points proposed is between 10 years and life imprisonment.

[16]     On any view, your involvement as a conspirator related to a lot more of the drug than the lower limit for band four.   In Mr Rodgers’ case, Kós J adopted a starting point of 17 years’ imprisonment.6     Mr Rodgers was also sentenced on a concurrent basis for the additional convictions, which in his case justified an uplift of a further two years’ imprisonment from the starting point.

[17]   However, your offending is different from his convictions because the conviction in your case is for conspiracy to supply, rather than supplying.  There is another Court of Appeal case, Te Rure,7  which recognised that a reduction will be appropriate from what  would have applied if the conviction  was for  supplying, where instead it is for conspiracy to supply.  The extent of that reduction will depend on how close the involvement of a conspirator is to the involvement as a supplier.  In

some cases, conspiracies do not get off the ground, for instance where they are disrupted by Police arrests when they are still in the planning stage.  That is not the case  here.    The  conspiracy  between  you  and  Mr Rodgers  was  on-going  and successful over an extended period in the sense that numerous consignments of large quantities of methamphetamine were sourced and on-sold.

[18]     The part you played in the conspiracy was critical to the on-going nature of the arrangements.   It seems Mr Rodgers could not have kept the books himself so that  your  record-keeping  was  necessary  to  keep  track  of  amounts  owed  to  the supplier and owing by the buyers of methamphetamine.  A “tick list” seized at one point in the operation listed some 42 people owing money for sales amounting to some $377,000.   Kós J found that the operation depended on giving credit quite liberally,  and  his  calculation  was  that  the  total  quantities  that  passed  through Mr Rogers’ control,  once  cut,  may  have  had  a  street  value  up  to  $3.3 million.

Anyone familiar with the horrendous consequences of methamphetamine use, as you

5      R v Fatu [2006] 2 NZLR 72 (CA).

6      R v Rodgers [2012] NZHC 2296 at [39].

7      R v Te Rure [2008] 3 NZLR 627 (CA).

certainly were, has to accept that equates to a very extensive amount of misery and wrecking of the lives of those taking the drug, and those near to them who are affected by it.

[19]     Not only were you the bookkeeper, but Mr Rodgers depended on your texting skills as the person who communicated with the supplier and others involved in the criminal activity.   So, at its most basic, the operation could not have continued without the competent bookkeeper that you were, and it did not carry on except with your involvement in conveying messages to others on behalf of Mr Rodgers.

[20]     The Crown has submitted that on the basis of Fatu, if it was a conviction for supply, then your involvement would justify a starting point of not less than 12 to

13 years’ imprisonment, and that on the Te Rure approach of a discount for it being conspiracy  rather  than  supply,  a  discount  of  10 per cent  would  be  appropriate, leading to a starting point for the methamphetamine conspiracy of between 10 years six months’ and 11 years six months’ imprisonment.

[21]     Mr Antunovic’s written submissions did not address a starting point but it is implicit from the final outcome he contended for that he was arguing for a substantially lower starting point for this lead offence.

[22]     Another  comparator   is   the  starting  point   fixed   for   Mr A,  who   was Mr Rodgers’  “right  hand  man”  in  sourcing  the  methamphetamine,  cutting  and repackaging it, and supplying it.  He travelled at Mr Rodgers’ direction to the upper North Island to source methamphetamine and it appears that it may have been his contacts, rather than those of Mr Rodgers, that provided the bulk of the purchasers of the cut product.   Mr A was sentenced in August 2011, and the Judge in that case adopted a starting point between 13 and 14 years’ imprisonment, with uplifts for the

other offending in Mr A’s case to reach a starting point of 15 years’ imprisonment.8

[23]     Your  starting  point  should  be  less  than  Mr A,  and  I  accept  the  Crown proposition that it is in a range between 10  years six months and 11 years six

months’ imprisonment.

8      R v A HC Wellington CRI-2011-085-1797, 17 August 2011.

[24]     In both Mr Rodgers’ and Mr A’s cases, the additional convictions justified uplifts between one and two years. Although roughly comparable, the uplift required to reflect the totality of your offending is somewhat less.   I set it at nine months, which I absorb within the range of starting points by going to the top of it.  I would therefore identify a final starting point of 11 years and six months’ imprisonment.

[25]     As to your circumstances as the offender, it is very significant that you acted in every respect under the constant demands from Mr Rodgers.  I accept that I could have treated that as one of the circumstances of the offending, which would have brought down the appropriate starting point, but consider that it is preferable to treat the nature of your offending on an objective basis, that is measuring its relative criminality irrespective of whether it was you or a third person who contributed to the offending in the way that your actions did.

[26]     That leaves me free to consider, as a mitigating factor, the impact on your culpability of the protracted history of physical and sexual violence that you suffered from  Mr Rodgers,  and  previously  from  an  uncle  in  your  teenage  years  when tragically you had to develop a series of responses to survive on-going serious violence.

[27]     You are now 38 years old, and the mother of seven children, who range, as I

understand it from the reports,  from adults down to a toddler.   I have read all

46 pages  of  the  account  you  have  provided,  together  with  the  reports  from Dr Barry-Walsh, the forensic psychiatrist, Mr Tim Byrne, the counsellor, and letters from  five  other  supporters  plus  your  oldest  daughter  and  your  partner  and co-offender, Mr Rodgers.

[28]     I have also read the pre-sentence report, which assesses you as not having any harmful  pattern  of  alcohol  consumption,  or  drug  abuse.    The  report  writer assesses you as having, however, a high risk of re-offending.   In combination, all these commentaries make both tragic, and encouraging, reading.   On the positive side, you are widely recognised as being intelligent, strong-minded and determined to improve your lot and that of your children.

[29]     On the other side of the ledger, you have been subjected throughout your adult  life  to  savage  beatings,  sexual  abuse  and,  with  Mr Rodgers,  irrationally obsessive behaviour and a dangerous determination to control your every move. You explain your present offending in assisting with this serious criminal conduct as being necessary to keep Mr Rodgers calm, and to avoid the risk of further violence from him.

[30]     You also appear to acknowledge that in recent years, and in particular whilst the  methamphetamine  supplying  operation  was  on-going,  Mr Rodgers  has  been somewhat calmer, and there have been no incidents of domestic violence reported since 2008, well before the beginning of the period to which the present charges relate.  Mr Antunovic has this morning referred to both the substantial Police record of domestic violence callouts, and also ACC records of the occasions on which you have claimed for some horrendous injuries caused by beatings.

[31]     Kós J found that Mr Rodgers had moderated his behaviour for two reasons. First, to improve his chances of keeping you and having contact with your children, and secondly to increase the chances of staying in control of the high-risk criminal venture he was embarking on.

[32]     Your  own  acknowledgement  that  you  could  have  left  him  is,  I  accept, somewhat artificial.  Mr Antunovic has urged that this was a situation from which there was no walking away because of the extent of Mr Rodgers’ connections and ability to direct others to inflict harm on you.   Your thought processes would understandably have been affected by the long-standing pattern of violence and what appears to have been the ever-present threat that it would be ignited if you disobeyed him.

[33]     I  am  bound  to  treat  Mr Antunovic’s  characterisation  as  somewhat  too

absolute, but I do understand the very difficult position that you were in.

[34]     The Court of Appeal has indicated that where prolonged abuse suffered by a defendant materially contributed to her offending, a separate allowance should be

made for that factor.9    In the particular Court of Appeal case, the defendant’s state being akin to that of battered women’s syndrome was confirmed as justifying a discount of between 20 and 25 per cent from the starting point sentence.

[35]     In another case that Mr Antunovic has referred me to, a High Court Judge has taken into account that a wife suborned by her husband who was the prime mover in methamphetamine distribution in the Auckland region justified what was an unidentified but significant contribution to an overall global discount of 50 per cent

from what would otherwise have been the starting point in her case.10

[36]     The immediate threat and occurrence of physical violence appears to have reduced somewhat before the period in which you participated with Mr Rodgers in the present offending.  I note that, even although you have now been separated from Mr Rodgers since he was remanded in custody, you appear determined to hold out for a life with him again.  You hold that attitude despite your strength of character and intelligence as identified by those social services and other support agencies dealing  with  you.    Mr Barr  for  the  Crown  has  suggested  that  Mr Antunovic’s submissions on your behalf overstate the extent to which you were compelled to act because of Mr Rodgers’ bad influence on you.

[37]     Having treated the circumstances of the offending objectively, and having regard to all that is said about your personal circumstances and the background of the long-term violence inflicted on you, I consider a discount of 30 per cent from the starting point is appropriate.

[38]     As to your own personal record, you have an unenviable criminal record. Those previous convictions are not relevant as an aggravating factor but they deprive you of the prospect of claiming any discount for previous good character.

[39]     That brings me to the circumstances in which you entered guilty pleas to the charges,  as  an  additional  discounting factor.   The Supreme Court  has  approved

sentencing judges giving a discount of up to 25 per cent for guilty pleas if they are

9      R v Whiu [2007] NZCA 591 at [32].

10     R v Yeh HC Auckland CRI-2007-004-22697, 29 October 2010.

made early, and there is a prospect of an additional discount if it is accompanied by demonstrations of remorse in the sense relevant under the Sentencing Act.

[40]     The situation surrounding your guilty pleas is also somewhat complicated.  In terms of timing, you only entered guilty pleas shortly before you were due to face trial.   Usually, that factor would limit the discount for a guilty plea to a modest portion of that 25 per cent.  In the cases of Mr Rodgers and Mr A, the discount for guilty pleas  in  more or less  the same time frame was  set  at  17.5 per cent,  and Mr Barr has urged this morning that there is no basis for treating you any differently in terms of the extent of discount given.

[41]     Mr Antunovic argues that you had indicated your preparedness to plead guilty to  conspiracy  to  supply  methamphetamine  from  an  early  stage,  but  you  were resisting pleading to being a party to supply with which you were originally charged, but that the position with the charges against you could not realistically be resolved until  Mr Rodgers’ position  was  resolved.    I  can  understand  your  adopting  that approach  given,  first,  your  on-going  relationship  with  him,  and  secondly  the technical linking that the Crown’s approach required to be made between the charges against both of you.

[42]     In the end, I am satisfied that the sequence as explained fairly entitles me to treat your guilty pleas as being entered at the first reasonable opportunity.

[43]     The  pre-sentence  report  writer  and  a  number  of  the  other  references commenting on your situation share the view that you are genuinely remorseful for your part in this offending.  On the other hand, whilst you have pleaded guilty and are remorseful, your support for Mr Rodgers included providing evidence intended to assist his cause, which Kós J has rejected as untrue.  That support demonstrates that at least in some senses you condone what Mr Rodgers did, which is at odds with complete remorse in the sense that applies under the Sentencing Act.

[44]     Mr Barr invited me to treat the issues of the discount and remorse more along

the lines of the Court of Appeal’s approach in R v Hessell,11  rather than that of the

11     R v Hessell [2009] NZCA 450.

Supreme Court.12    That enables a rather more nuanced mixing of the timing of the guilty pleas and the nature of the remorse.   That does appeal here, and overall I accept that a discount of a further 25 per cent in relation to your guilty pleas and your demonstration of remorse is warranted, and that the higher discount I have given  relative  to  those  given  to  Mr Rodgers  and  Mr A  is  justified  in  your circumstances.

[45]     So, doing the sums, the starting point of 11 years and six months would be some 138 months.  Deducting 30 per cent for your involvement being as directed by Mr Rodgers would reduce it to 96 months.  Reducing that by a further 25 per cent to allow for your guilty pleas and the extent of remorse I have found would produce an end sentence of some 72 months or six years’ imprisonment.

[46]     Mr Antunovic has argued that, at this point in setting penalty, I should give you credit for the period during the last 17 months when you have been subject to a

9pm to 6am curfew.  I am not satisfied that such a credit should be given as a matter of course.  Such curfews are imposed as an appropriate constraint on the freedom of bail and you were in your own living quarters.   Nevertheless, you appear to have complied throughout with the curfew at least in what will have been a difficult time, and in his reply Mr Barr has accepted that I do have a discretion to give a measure of credit for a lengthy period on curfew such as you have served.  So, I am prepared to give you two months’ credit, resulting in a final end sentence of five years and

10 months’ imprisonment.

[47]     Before settling on that sentence, I need to stand back and measure that on two bases.   First, whether concurrent sentences with that as the longest for the most serious offending, and lesser periods for the less serious convictions, appropriately reflects the totality of your offending.  Having reflected on it, I am satisfied that it does.

[48]     Secondly, I need to test that end point against the sentences imposed on others involved in this offending.   Five years and 10 months is a little less than

40 per cent of the length of sentence imposed on Mr Rodgers.   Superficially, that

12     R v Hessell [2010] NZSC 135.

difference looks very large, but having regard to all the factors I have taken into account, I am comfortable that that relativity is appropriate.

[49]     It is more difficult to measure your end sentence against that of Mr A. After a higher starting point than yours, there were unusual aspects in his case that led the Crown  to  accept  an  extraordinarily  large  discount  was  appropriate.    There  is therefore no great point in evaluating relativity between an end point of five years and 10 months for you, and six years and five months’ imprisonment for him.  But to the extent they can be compared, again I am comfortable with the relativity.

[50]   You were originally charged with two further co-accused, Smith and Whittington.   They were dealers at the next level down in retail selling of methamphetamine, and for that reason, I do not consider that comparison with the sentences imposed on them is helpful to me.

[51]     The last aspect of my “standing back” is to have regard to additional personal circumstances that have been urged on me in support of imposing a sentence of home detention instead of imprisonment.  Mr Antunovic and the providers of letters of support for you urge that care of your youngest son is both vitally important to him, and is a form of rock on which you can base your attempts at rehabilitating your own  life.    I  am  impressed  with  those  recent  attempts,  and  am  mindful  of  the increased importance to your young son of constant care in light of his possible health difficulties.  I have assessed carefully whether those matters mean that what is otherwise the appropriate sentence of imprisonment would be disproportionately severe in your case.  Regrettably, for offending of this type, that consideration could never  justify my bridging  the  gap  between  the  length  of  prison  sentence  I am satisfied is otherwise appropriate, and a short one of, say, two years that could be transformed into a sentence of home detention.  To do so would so understate the consequences of your offending and the important need for deterrence and denunciation as to be untenable.

[52]     I do hope that to the fullest extent possible, all those providing support for you will continue to do so in every way possible, even although you must face a

period of imprisonment.   I am satisfied in the end that that is the least restrictive outcome I can impose.

[53]     The   Crown   has   also   raised   the   prospect   of   a   minimum   period   of imprisonment.  I am satisfied that one is not warranted in your case.

[54]     The  pre-sentence  report  notes  that  you  have  outstanding  fines  of  some

$6,300. Any expectation of payment is unrealistic, and having that hanging over you would hamper rehabilitation.  However, the cautious view is that this Court does not have jurisdiction to order that fines be remitted.13   All I can do is invite your counsel to make application to the Registrar of the District Court for those fines to be remitted under s 88 of the Summary Proceedings Act 1957.   In the context of this sentencing, that course appears appropriate.

[55]     Accordingly,  I  sentence  you  to  a  term  of  five  years  and  10  months’

imprisonment on the lead conviction for conspiracy to supply methamphetamine. [56]        On the remaining convictions, I sentence you to concurrent terms as follows:

(a)       conspiracy to supply cannabis – 18 months’ imprisonment;

(b)      supplying cannabis – 12 months’ imprisonment;

(c)       conspiracy to engage in money laundering transactions – 12 months’

imprisonment;

(d)      engaging  in   money  laundering  transactions   (x4)   –   two   years’

imprisonment;

(e)       participation   in   an   organised   criminal   group   –   convicted   and discharged;

(f)       conspiracy to obstruct justice – six months’ imprisonment.

13     R v Feauai [2012] NZHC 171.

[57]     You may stand down.

Dobson J

Solicitors/Counsel:

Crown Solicitor, Wellington

I M Antunovic, Wellington