R v Cossey
[2021] NZHC 1333
•8 June 2021
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-019-3685
[2021] NZHC 1333
THE QUEEN v
ROMAN JOHN COSSEY
Hearing: 8 June 2021 Appearances:
C K Whyte for the Crown
J S Gurnick for the Defendant
Date of sentence:
8 June 2021
SENTENCING NOTES OF JAGOSE J
Counsel/Solicitors:
J S Gurnick, Barrister, Hamilton
Hamilton Legal, Crown Solicitor, Hamilton
R v COSSEY [2021] NZHC 1333 [8 June 2021]
[1] Ms Cossey, on your guilty pleas, Gault J entered convictions against you in this Court on 21 April this year for representative charges of:1
(a)supplying methamphetamine;2and
(b) offering to supply methamphetamine;3 and then specific charges of:
(c)possession of methamphetamine for supply;4 and
(d)breach of a parole condition.5
The Crown offers no evidence on the balance of its charges against you, and I dismiss them.
[2] I now am to sentence you for your convictions. In sentencing you, I must accept as proven all facts essential to your guilty pleas.6 The Crown recommends you be sentenced to between two and a half to three years’ imprisonment. Your lawyer, James Gurnick, recommends a community-based sentence and, if so, seeks to adjourn your sentencing to enable further steps to be taken before that sentence is finalised. I am not bound by the lawyers’ views. I have to come to my own decision. I must satisfy myself of the appropriate sentence for the gravity (or seriousness) of your offending, including your culpability (or responsibility) for it.
Background
[3]I briefly address the background to your offending.
[4] On 20 January last year, the Waikato Police Organised Crime Squad began an investigation into the manufacture and supply of methamphetamine in the Waikato and
1 R v Cossey HC Hamilton CRI-2020-019-3685, 21 April 2021 (Minute of Gault J) at [1].
2 Misuse of Drugs Act 1975, s 6(1)(c). Maximum penalty: life imprisonment.
3 Section 6(1)(c). Maximum penalty: life imprisonment.
4 Section 6(1)(f). Maximum penalty: life imprisonment.
5 Parole Act 2002, s 71(1). Maximum penalty: one year’s imprisonment or a fine not exceeding
$2,000.
6 Sentencing Act 2002, s 24(1)(b).
Auckland areas. The investigation uncovered what police characterise as a “highly organised and lucrative drug dealing business”.
[5] You are one of 29 people arrested in connection with that investigation. You and four others, occupied the lowest tier of that group, having had the least degree of involvement in the operation. You were supplied methamphetamine from members of the group, which you sold to your own contacts. You operated in a similar way to co- defendants including Jane Paki, who already has been sentenced for her involvement.
[6] The summary of facts on which you pleaded guilty records you supplied, or offered to supply, methamphetamine on at least 36 occasions. While the total amounts of methamphetamine you supplied in those transactions remain uncertain, on 13 occasions you supplied methamphetamine totalling 12.25 grams, and on 23 occasions you offered to supply methamphetamine totalling 102.5 grams. These facts gave rise to the charges of supplying and offering to supply methamphetamine in amounts of at least 114.75 grams.
[7] On 22 May last year, police found you in a car parked outside an apartment block. In the car, they found a backpack containing approximately 20.74 grams of methamphetamine and nearly $20,000 in cash. The backpack also contained electronic scales and zip-lock bags, implying you possessed the methamphetamine for supply. These facts gave rise to the charge of possession of methamphetamine for supply.
[8] You were at that time on parole from Tongariro Prison, having been sentenced in July 2017 to a term of seven years’ imprisonment on charges of supplying methamphetamine.7 One of your parole conditions was that you were not to possess, use or consume any controlled drugs. Your possession of the methamphetamine meant you were in breach of this parole condition.
Personal circumstances
[9] I have quite a number of reports to take into account in considering your personal circumstances.
7 R v Cossey [2017] NZDC 16228.
—PAC report
[10] Your pre-sentence report notes your history of drug-related and driving-related offending, but characterises your present convictions as representing a “significant increase in both the frequency and seriousness” of offending for which you previously were only fined or disqualified. That appears to overlook your current sentence of seven years’ imprisonment for offending relating to your supply of between 110 and 320 grams of methamphetamine between 2015 and 2017. The report writer says you show remorse for your offending, saying you would do things differently in hindsight, and assesses you to pose a medium risk of harm to others and a medium risk of reoffending.
[11] The report writer notes also your mother’s and your grandfather’s unconditional support for you. Your rehabilitative needs must address your substance abuse, and anti-social friends and associates and attitudes. You are willing to undertake programmes to address these needs, if released into the community. You are eligible to attend Corrections’ Medium Intensity Rehabilitation Programme. You previously had completed Odyssey House’s eight-week in-prison Alcohol and Drug Programme.
[12] You want to be released to the Higher Ground rehabilitation programme in West Auckland, which you understand to be able to provide appropriate support for you. Subject to your sentence now, and a psychological assessment report, you were scheduled to be admitted to Higher Ground today to begin an 18-week residential recovery programme. I have a letter from Higher Ground, confirming that intended placement. However, the report writer recommends, given the serious nature of your offending, you be sentenced to imprisonment, but acknowledges imprisonment with release on conditions is an alternative.
[13] You are a single person, without children. You have domestic and inter- personal skills. You would like to study Community Psychology, to help others. You say you have made “bad decisions” in the past, but want to move forward and “be the best version” of yourself. Your alcohol and drug habit began at an early age and escalated into methamphetamine dependency. You are physically healthy but in the
process of gender transition, for which you are prescribed hormones and anti- depressants. You feel you do not belong in a men’s prison.
—letter of remorse
[14] I have read your letter provided by Mr Gurnick, in which you regret the hold methamphetamine has over you, and its consequences for your life experiences. You sold methamphetamine to pay for your addiction, for which you will be trying to make amends for the rest of your life. You see the Higher Ground course as starting that rehabilitation, including by removing you from prison’s hostile environment, reconnecting you with your whanau and society, and enabling your personal release plan.
—alcohol and drug assessment report
[15] Mr Gurnick also has provided me with your comprehensive alcohol and drug assessment. It explains the clinical and psychological consequences of your abused background, drug addiction, and transgender orientation — for which you are said on parole to have lacked support from the Probation Service, leaving you isolated and alone — and concludes you should be referred to the Higher Ground service, which should put you in touch with a transgender or rainbow support agency. It recommends you continue to work with a psychologist experienced in transgender issues.
— Odyssey House participant progress report
[16] Odyssey House’s report of your participation in its in-prison alcohol and other drug treatment rehabilitation programme, Te Ngahere, says you demonstrate good engagement and a high level of awareness of your own triggers. You would benefit from continued engagement with alcohol and other drug services such as Higher Ground. Support from kaupapa Māori-based services also may be helpful.
—section 27 report
[17] Vanessa Moodie, a New Zealand registered secondary school teacher with a background in Educational Leadership and Special Education, reports to me on your personal, family, community and cultural background. Her detailed report finds those
factors identified in your comprehensive assessment have fed into your offending, to have you trapped in a toxic lifestyle, which you have struggled to overcome.
—Parole Board decision
[18] Slightly unusually, I also have the Parole Board’s decision of 17 May 2021 on recall for your new offending, noting my sentencing would need to happen before it could reconsider parole. It needed further advice as to your proposed rehabilitation pathway in light of my sentencing. Mr Gurnick says, reading between the lines, that is to be taken as seeking further guidance from me if to grant parole. I do not read the decision that way. Nothing in this sentencing is intended specifically to give such guidance. The Parole Board’s decision is its own to make.
Approach to sentencing
[19] I now turn to explain how I will sentence you. I take a two-stage approach: first, to identify a starting point for offending of this type. That involves identifying the offending’s aggravating and mitigating features.8 Second, I take into account all aggravating and mitigating factors personal to you, together with a discount for your guilty pleas, all calculated as a percentage of the starting point.9
[20] I am to have regard to the statutory purposes and principles of sentencing.10 Of particular relevance to methamphetamine sentencing are to hold you accountable for the harm you have caused, to promote a sense of responsibility in you, to denounce your conduct, to deter you and others from committing similar offences, and to protect the community and assist in your rehabilitation and reintegration.11
[21] I must consider the gravity (or seriousness) of your offending in comparison with other types of offences.12 Consistency in sentencing is desirable,13 but I must take into account anything in your circumstances as would make an otherwise appropriate
8 R v Taueki [2005] 3 NZLR 372 (CA).
9 Moses v R [2020] NZCA 296 at [46]–[47].
10 Sentencing Act, ss 7 and 8.
11 Section 7(1); and Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [58].
12 Section 8(a)–(b).
13 Section 8(e).
sentence “disproportionately severe”.14 I must impose the least restrictive outcome appropriate in the circumstances,15 consistent with appropriate sentencing levels.
These purposes and principles of sentencing have no ranking.16
[22] My ultimate consideration is if the sentence is “a just one in all the circumstances”, having regard to “the circumstances of the offence and offender against the applicable sentence purposes, principles and factors”.17
Analysis
—starting point
[23] My first step then is to set a starting point. It is common ground your offending should attract a band two starting point, between two and nine years’ imprisonment.18 That is because the amount of methamphetamine subject to your offending was at least
135.49 grams.
[24] Despite the aggravating substantial commerciality and premeditated nature of your offending — and its scale, and consequent risk of social harm — you played a “lesser” role in the criminal operation.19 You neither had any management role, nor had subordinates, and are said to have lacked comprehension of the larger operation’s scale or organisation. Although achieving significant revenues, your involvement in the operation was the result of your “vulnerability” (by which I take into account all your background factors).20 Absent the larger operation, I am given no basis to expect you independently still would have had a source for your offending. But your offending had no mitigating features.
[25] By reference to comparable offending, that should result in a starting point less than six years’ imprisonment.21 The quantity of methamphetamine involved in
14 Section 8(h).
15 Section 8(g).
16 Moses v R, above n 9, at [4], citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [37].
17 Moses v R, above n 9, at [49].
18 Zhang v R, above n 11, at [125].
19 At [115].
20 At [115].
21 Gray v R [2020] NZCA 548 (quantity: 235.8g; role: “higher end of lesser and lower end of significant”; starting point: six years’ imprisonment, then adjusted upward to seven years for other
offending is a primary consideration, as a proxy for its social harm and illicit gain,22 which means your starting point must materially be above the two-and-a-half years assessed for your co-defendant, Jane Paki,23 also of “lesser” offending but with
31.9 grams.24 In balancing the various considerations, I take a starting point of four years and six months’ imprisonment. Recognising your unsupported vulnerability on parole, I do not impose any uplift for breach of your parole condition.
—adjustment for personal factors and guilty plea
[26] I turn to consider uplifts or discounts for your personal factors, including your guilty pleas.
[27] I must take into account as aggravating the fact your offending was while subject to a sentence,25 also for methamphetamine offending. Your methamphetamine addiction, your background circumstances as I have outlined them, and your remorse and preparation for rehabilitation all qualify as mitigating. So too is the disproportionately severe nature of your imprisonment as a transitioning transgender prisoner in a men’s prison,26 which may be viewed analogously with credit given for medical conditions with comparable effect.27 And, given the complexities and delays in obtaining disclosure and pursuing resolution of charges,28 you are entitled to something approaching a full discount for your guilty pleas.29
factors); Su v R [2020] NZCA 128 (quantity: 233g; role: “lesser”; starting point: five and a half years’ imprisonment); Joyce v R [2020] NZCA 124 (quantity: 32.11g; role not specified; starting point: four years’ imprisonment); Roulston v R [2020] NZCA 255 (quantity: at least 224g; role not specified; starting point: six years’ imprisonment); and Irwin v R [2020] NZCA 181 (quantity: 58g; role not specified but appeared to be on the low end of lesser; starting point: two years’ and eight months’ imprisonment).
22 Joyce v R, above n 21, at [17], citing Zhang v R, above n 11, at [125].
23 R v Paki [2021] NZHC 908.
24 At [22]. The four-year starting point taken for a comparable quantity in Joyce v R, above n 21, is explicable by the defendant’s multi-faceted role (at [20]).
25 Sentencing Act, s 9(1)(c).
26 See, for example, R v Warwick HC Auckland CRI-2010-057-508, 15 June 2010 at [31]–[34]; and Tua v Police HC Auckland CRI-2011-404-340, 18 November 2011 at [26]. But also see R v Rudolph [2019] NZHC 1050 at [42].
27 R v Verschaffelt [2002] 3 NZLR 772 (CA).
28 Minute, 2 February 2021, at [2] and [8].
29 Hessell v R, above n 16, at [75].
[28] All considered, I would uplift the starting point I have identified by 15 per cent, then to discount it by 60 per cent. That would bring a sentence for your present offending to two years and ten months’ imprisonment.
—totality
[29] Your current offending, while similar in kind, is insufficiently connected to that for which you presently are imprisoned, making a cumulative sentence appropriate. As I only am considering imposing a sentence of imprisonment for your more recent offending, the totality of your offending is not a requisite consideration.30 But I nonetheless should have regard for it, still to ensure your total period of imprisonment is not disproportionate to the seriousness of your overall offending.31
[30] You presently are serving a sentence of seven years’ imprisonment, in relation to your 2015–2017 supply of something in the range from 110 to 320 grams of methamphetamine. So far as I can tell, that was offending in circumstances highly comparable to the present, including that a significant portion of your prior offending occurred after your arrest for its earlier aspects. According to the scale applicable at the time,32 that was supply of commercial to large commercial quantities, attracting a starting point of between three and eleven years’ imprisonment.
[31] Assuming the similar nature of all your offending, adding the present 115 grams to your previous offending’s 215 gram midpoint gives a total sentencing quantity of 330 grams. On the present scale, that would put your “lesser” role starting point at the lower end of band three’s six to twelve years’ imprisonment.33 Comparably, concurrent sentences of nine years and ten months’ imprisonment is too high, although explicable by your post-custodial return to your previous ways.
[32] To avoid disproportionality overall, while ensuring your sentence is the least restrictive outcome possible in the circumstances, I deduct another six months for totality. That brings your end sentence to two years and four months’ imprisonment.
30 Sentencing Act, s 85.
31 Taylor v R [2018] NZCA 444 at [15]; and Piao v R [2020] NZCA 607 at [21], applying Haywood v R [2015] NZCA 551.
32 R v Fatu [2006] 2 NZLR 72 (CA).
33 Zhang v R, above n 11, at [103].
[33] There is a statutory presumption Class A drug supply offending will have an end sentence of imprisonment. Particularly when coupled with your present sentence, despite your addiction and hopes for your rehabilitation, I see nothing displacing that presumption here. Your recidivist offending is sufficiently serious to require a continued custodial sentence. A community-based sentence presently is not available to you.
[34]Despite the presumed serious consequences of methamphetamine offending34
— having regard for appellate guidance minimum periods of imprisonment should not be imposed in a routine or mechanistic way, and “lengthy minimum periods of imprisonment are properly reserved for cases involving significant commercial dealing”35 — I also see nothing here justifying a minimum period of imprisonment. I do not impose one.
[35] Finally, I am satisfied the money found in your possession was received by you in connection with your present or intended offending. I therefore order its forfeiture.36 In that circumstance, I do not impose any fine.37
Sentence
[36] Ms Cossey, please stand. On the charges to which you have pleaded guilty, I sentence you to two years and four months’ imprisonment. Please stand down.
—Jagose J
34 R v Brown [2002] 3 NZLR 670 (CA) at [32].
35 Zhang v R, above n 11, at [10(n)–(o)].
36 Misuse of Drugs Act 1975, s 32(3).
37 Section 6(4A); Commissioner of Police v Jones (1990) 6 CRNZ 608 (HC) at 611.
6
14
0