R v Cooper

[2013] NZHC 170

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2012-021-363 [2013] NZHC 170

THE QUEEN

v

AARON SYDNEY COOPER

Hearing:         12 February 2013

Appearances: S A Law for Crown

T Bolstad for Cooper

Judgment:      12 February 2013

SENTENCING REMARKS OF ALLAN J

Solicitors:

Crown Solicitor New Plymouth
T Bolstad, New Plymouth

R V COOPER HC NWP CRI 2012-021-363 [12 February 2013]

[1]      Mr Cooper, you appear for sentence this morning on four charges.  There is one of possession of cannabis for supply for which the maximum penalty is eight years imprisonment, one of cultivating cannabis, for which the maximum penalty is seven years imprisonment, and charges of possession of explosives and firearms respectively, for each of which the maximum penalty is four years imprisonment. The District Court has declined jurisdiction.

Factual background

[2]      On 11 April 2012, the police conducted a search at your home.  There they found one large, mature cannabis plant in a glasshouse located at the rear of the property.  The plant was in good condition and had a large number of mature heads on it.   It weighed almost 12 kg.   Inside the garage the police located a backpack containing 150 grams of dried cannabis head, a set of electronic scales with a plastic Tupperware lid used for weighing cannabis, and a large ziplock bag containing 17 smaller ziplock bags.  Such small ziplock bags are commonly used for retail sales of cannabis at street level.

[3]      In your bedroom the police located a ziplock bag containing two grams of cannabis  head,  and  a  coffee  jar  containing  about  one  gram  of  loose  cannabis material.  Over 1000 cannabis seeds were also found.

[4]      In addition, the police located a rifle bolt for a 0.22 calibre rifle, and a magazine containing four live ammunition rounds.   In a snaplock bag the police found some working rifle parts including a firing pin.   Further ammunition was found in the kitchen.  There the police located five live rounds for a 0.22 rifle.  In the garage two boxes of live 0.22 ammunition were found.   One contained 21 live rounds and the other 50.

[5]      Although accepting that the cannabis was yours, you denied selling any of it. You also said that the rifle itself was not held by you at your home, and that you used it only for possum hunting.

[6]      This morning the court has been told that during your videotaped interview you told the police the rest of the rifle was hidden in the woods, and you retrieved it when you wanted to go shooting possums.

Personal circumstances

[7]      You are 25 years old, and have been living with your brother, but recently you moved in with your mother and stepfather.   You have worked fulltime as a builder for about four years and are getting towards the end of your apprenticeship. The court is told if a sentence of imprisonment results your job cannot be kept open for you.

[8]      For  a  considerable  period  your  lifestyle  has  been  dominated  by  regular cannabis use.  You have 16 previous convictions;  six are drug related.  Particularly notable are convictions for possession of cannabis for supply, and for cultivating and selling cannabis, all in 2007.  At that time you were sentenced to 18 months imprisonment.

[9]      Although you were well aware of the consequences of further offending, having already gone to prison for similar activities, you did not consider the possible consequences if you were caught on this occasion.

[10]     To your credit you are now taking some steps to address your drug problem and have self-referred to counselling for that purpose.  The court has been told you have seen a counsellor for one on one sessions over the last few months.  You say you have been drug-free for some months now and intend to remain abstinent.  The report  writer  says  you  have  expressed  genuine  remorse  for  your  offending  and appear to be insightful about it.

[11]     You are considered to present a relatively low risk of re-offending, given the support of your family, your continued employment if you remain out of prison, and the fact that you have a young son to consider, although you are not now living with your former partner.

[12]     Before you pleaded guilty in the District Court, Judge Roberts provided a sentencing indication.  He said that the offending fell within band two of R v Terewi, which applies to commercial offending in the small to medium range.[1]    The Judge rejected an argument that the cannabis was for your own use because he said no person who was simply catering for his own habit needed to weigh and place in bags the small quantities that were found at your home.

[1] R v Terewi [1999] 3 NZLR 62 (CA).

[13]     The Judge considered that a starting point of around two years imprisonment was appropriate, uplifted by six months for your previous convictions, and by a further four to six months in respect of the present firearm offending.  He deducted

10% for a late guilty plea and so reached a range of two years six months to two years eight months imprisonment.

Counsel’s submissions

[14]     Ms Law for the Crown and Ms Bolstad each accept that the case falls within band two of Terewi.  For the Crown it is argued that a starting point of about two years imprisonment is required in order to reflect the quantity of cannabis found. The quantity of firearm paraphernalia located justifies an uplift she says.  Ms Law also submits that Judge Roberts was right to identify your previous convictions as a personal aggravating factor.  She suggests that a 10% discount for a very late guilty plea is appropriate, having regard to the fact that the trial was to take place on 10

December 2012 and that the sentencing indication was sought only on 30 November.

[15]     Ms Bolstad says that although the case fits within the low end of band two of Terewi, the starting point ought to be in the vicinity of 18 months imprisonment, below the bottom of Terewi band two, but envisaged in that case where sales are infrequent or of limited duration.

[16]     I take into account the various purposes and principles set out in ss 7 and 8 of the Sentencing Act 2002.  In the usual way I must fix a starting point and then adjust it by reference to aggravating and mitigating factors, first relating to the offending itself and then by reference to personal issues affecting you.

[17]     As is normal, I deal first with the most serious charges, which are the two cannabis charges, and then take account of the lesser offending.

[18]     The quantity of cannabis located was only moderate, but sufficient to clothe your  activities  with  commerciality.    Like  Judge  Roberts,  I  have  difficulty  in accepting that all of your cannabis activities were simply designed to cater for your own habit.  The collection of 1000 seeds suggests otherwise.  Judge Roberts placed emphasis on the electronic scales and collection of bags.  Ms Bolstad has told the court this morning that all of that was designed to ensure your personal consumption of cannabis was controlled on a regular basis.  That is an explanation the court not infrequently hears, and it must be treated with some caution.

[19]     I have considered several comparable High Court authorities.[2]     I adopt a starting point of two years imprisonment which is at the bottom of band 2 of Terewi, although it could have been higher.   An uplift is required in order to reflect the firearm paraphernalia and ammunition, very commonly found in conjunction with cannabis activities of any significance.  As I indicated earlier, you explained to the police that the firearm itself was in the woods where you could retrieve it.  While I accept that explanation, the difficulty is that the courts have routinely said that where there is cannabis, or any sort of drug offending on the one hand, and access to firearms on the other, that is sometimes a lethal combination and for deterrence reasons the court has to impose an additional penalty for that combination.   The courts take a serious view of the finding of firearms in conjunction with commercial

drug-related activities.

[2] R v Riwai HC Palmerston North CRI-2009-054-1838, 8 October 2009, R v Blake HC Auckland CRI-

2009-090-3949, 28 September 2011, R v Wade HC Whangarei CRI-2010-088-4946, 27 July 2011.

[20]     There will be an uplift of four months imprisonment to reflect the totality of your offending.

[21]     Then there is your previous offending.  Although your last drug convictions were five years ago, they plainly related to activities of some significance because you were sentenced to 18 months imprisonment.  I impose an uplift of three months imprisonment for your previous record, which takes the total end sentence to two years seven months imprisonment.  From that figure I deduct 10% for your very late guilty plea.  That produces an end sentence of two years four months imprisonment, which is too high to qualify for the consideration of home detention.

[22]     I accept that you now seem to be addressing the causes of your offending, and I have carefully taken into account the various steps you have taken to that end. It is pleasing to see what you are doing and I am sure you will get every encouragement to put your drug-related lifestyle behind you.   But, as was pointed out by Harrison J in R v McLean, a sentence of imprisonment for drug offending carries an inherent message that re-offending will expose the perpetrator to an even

longer term of imprisonment.[3]    The earlier penalty ought to have served as a final

warning.  Regrettably, you did not take that on board.

[3] R v McLean HC New Plymouth CRI-2008-043-3110, 15 December 2008.

[23]     The end sentence I have reached is somewhat lower than that assessed by

Judge Roberts, on the basis of which you decided to plead guilty to these offences.

Sentence

[24]     On the two counts of possession and cultivating cannabis respectively, you are sentenced to two years four months imprisonment.  On the remaining charges of possession of explosives and of firearms, you are sentenced in each case to 12 months imprisonment.  All of the sentences are to run concurrently.  The result is a sentence of two years four months imprisonment.

C J Allan J