R v Toa [2016] NZDC 26846 (23 December 2016)

Last Updated: 7 April 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT AUCKLAND

CRI-2015-090-006010 [2016] NZDC 26846

THE QUEEN

v

_{CORY TOA}

Hearing:	23 December 2016
Appearances:	R McCoubrey for the Crown S Tait for the Defendant
Judgment:	23 December 2016

_{NOTES OF JUDGE A E KIERNAN ON SENTENCING}

[1] Cory Toa, you appear for sentence on three charges of supply of methamphetamine and one of possession for supply. I just need to refer to the evidence at the trial and then the other papers that I have got for your sentencing.

[2] You pleaded guilty to those charges at the end of the Crown case on the fourth day of a trial before a jury. There were two co-defendants, as you know; Mr Ward and Mr Julian. I have already sentenced Mr Ward to 21 and a half months’ imprisonment on the charges which he accepted which concerned GBL and also supply of methamphetamine. Mr Julian’s sentence, as you have just heard, has been adjourned to a further date and he accepted charges of possession of a firearm and ammunition. The charges that you accepted are all drug-related charges so I will just

_{refer to the facts overall.}

R v CORY TOA [2016] NZDC 26846 [23 December 2016]

[3] The evidence the Court heard was that a car was driven by Mr Julian up from the Hamilton area and was stopped in West Auckland by the police on the evening of

31 October last year. You were in the car as was Mr Ward and Mr Julian and a female. As a result of a police officer noting a shotgun shell on the passenger floor there was a search by police of the car and that revealed a pump action shotgun in the boot, four 12 gauge shells in the car and also over 29 grams of methamphetamine and plastic bags as well as scales in the boot, and there was about a litre of GBL also in the boot. There was a pre-trial challenge to the legality of the search but, as you know, that was unsuccessful.

[4] So at the trial the evidence included photographs of the various items. There were a number of agreed facts which included analysis of the drugs and there was also evidence that, which was not disputed, Mr Julian had picked up the rest of the passengers in Hamilton and then dropped everyone in West Auckland collecting them later the same day. It was not Mr Julian’s car but also clear that the owner of the car did not own any of the items the police found. There was other evidence of telephone calls and text messages analysed from which it was apparent that you and indeed Mr Ward had been supplying or offering to supply methamphetamine.

[5] So at the end of the Crown case your counsel sought to have you discharged on the GBL charge and Mr Ward’s counsel sought to have him discharged on the firearm and shell charges. I declined those applications but did discharge Mr Ward on two supply charges which discharge was not opposed by the prosecution.

[6] Mr Julian received a sentence indication, as I have said, and he pleaded guilty to those firearm and shell charges. After taking instructions from you, Mr Tait advised the Court that you would plead guilty to the charges I have already mentioned which are, on the charge list, charges 1, 2 and 3, each of supply of methamphetamine to particular people on dates in October and September last year and then the principal charge which is charge 8, possession for supply of methamphetamine, and that charge was jointly with the two others. You having accepted responsibility for it, the Crown chose not to proceed against the others.

[7] Today for sentencing I have got two probation reports, also a list of your previous convictions. There are no drug convictions, as you know, on that history, Mr Toa. Principally dishonesty convictions including burglary and the most recent sentences were either for breaches of release conditions or the principal sentence was burglary for which you were last sentenced in March 2013 three years and six months. Looking back at your history, Mr Toa, there are some offences of violence, not the most serious, on that history but principally dishonesty, burglary offending, going back to the Youth Court in Hastings in the 1990s, but no drug offending so there will be no uplift for those previous convictions in this sentencing today.

[8] The probation reports, the first one dated 12 December, you did not participate in an interview for that report. There is then a second one because I granted an adjournment to give you the opportunity to participate in the report and also so that Mr Tait, who was not able to be here on the last occasion, could receive your instructions.

[9] That second report does include your input. You told the probation officer the offending was to support your methamphetamine addiction and was too tempting to decline. The probation officer says limited insight into offending behaviour and notes those previous convictions and difficulties in getting employment. The report does record that you express regret for your behaviour, are motivated to engage in residential alcohol and drug treatment if given the opportunity, and you say your whānau have for some time encouraged you to stop criminal activities.

[10] So the change perhaps in your attitude that is noted in the report is that you acknowledge the spur for this particular offending. It is not clear to me whether drug addiction, even though there are no convictions, would have been a spur for previous offending but you are motivated, it is said, to engage in treatment. So that is good for the future, Mr Toa.

[11] The recommendation is for imprisonment, release on conditions. There is some information about your personal background; a stable relationship, sadness within your family, your sister and the child which I have read about. You say you

have disassociated yourself from your co-offenders and you do not deny the history of excessive illicit drug use and were under the influence at the time these offences were committed, also acknowledge a gambling problem. So quite a few matters for you to address with help, Mr Toa, in the future.

[12] The Crown have suggested that your offending falls within band two of the decision in R v Fatu1 which I have to follow which sets tariffs or bands for drug offending, no doubt Mr Tait has explained to you. A starting point, prosecution suggest, of four years’ imprisonment, no uplift for the supply charges and no uplift for your previous offending.

[13] Mr Tait on your behalf accepts that it is band two in R v Fatu which runs from three to nine years. He says the starting point should be lower, maybe three and a half years. He asks me to give you credit for the period you did spend on EM bail, three months. As he explained, the reason that came to an end was because of an address move and so no suitable accommodation and then a remand in custody. He emphasises the whānau support that you have and it seems to me, Mr Toa, having read the reports and listened to Mr Tait, that your family have stood by you despite things that have happened and your behaviour. That is to their credit of course, and you will need their support obviously in the future.

[14] You do express some remorse. He says the explanation is drug dependency and he emphasises your desire to engage in rehabilitation on release. Mr Tait acknowledges, as you will appreciate, Mr Toa, that the only option for the Court is a term of imprisonment.

[15] The principles and purposes of sentencing that are important are denunciation, deterrence, consistency with other cases and the least restrictive outcome. There are no particular aggravating features apart from the amount of the drug. In mitigation there is simply your guilty plea which came late in the day.

[16] I am going to take a starting point, having considered the amounts, 28 grams in the car and perhaps 1.25 overall through the texts, I think

1 R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA)

29.25 grams overall, I am taking a starting point at the lower end of band two in R v Fatu and I am going to take three years and nine months’ imprisonment as where I start.

[17] From that I will give you credit of five percent for your pleas, albeit late, so that is between two to three months off for your pleas. I give you a small further discount for the remorse that you now express, perhaps not apparent at an earlier stage though an earlier plea which would have given you a bigger discount, and the other factors that have been mentioned.

[18] So the final sentence I am going to impose, including the small credit for time

on EM bail, is three years and four months’ imprisonment.

[19] Now I cannot set release conditions but the Parole Board will deal with that aspect of things. If you have access to courses in custody that will be in your interests of course, as you will know, when you go before the Parole Board when you are eligible for parole.

[20] So the sentence is three years and four months. That is imposed on charge 8. On the other charges, 1, 2 and 3, a term of one year imprisonment concurrent.

[21] So, Mr Toa, I am granting leave to withdraw the GBL charge which your name was in as well (charge 9), the shotgun (charge 10) and the shells (charge 11). So on those matters you are discharged.

A E Kiernan

District Court Judge