R v Koroi HC Whangarei CRI-2010-027-143 [2011] NZHC 1847 (8 November 2011)

Last Updated: 17 January 2012

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

_{CRI-2010-027-143}

THE QUEEN

v

MAXIE DEREK KOROI

Hearing: 8 November 2011

Appearances: M B Smith for Crown

W D McKean for Prisoner

Judgment: 8 November 2011

_{SENTENCING NOTES OF PETERS J}

Solicitors: Marsden Woods Inskip & Smith , Crown Solicitor, PO Box 146, Whangarei email: [e-mail]

Webb Ross, Private Bag 9012, Whangarei 0148 email: [e-mail]

R V KOROI HC WHA CRI-2010-027-143 8 November 2011

Introduction

[1] Mr Koroi, you appear for sentence today having pleaded guilty to: (a) four charges of burglary; and

(b) one charge of conspiracy to supply methamphetamine.

[2] The maximum penalty for the charge of burglary is 10 years’ imprisonment and it is 14 years’ imprisonment for the charge of conspiracy to supply methamphetamine.

Facts

[3] As I understand the facts, you and a younger associate, Mr Beazley, were using controlled drugs heavily throughout 2009. The summary of facts says that both you and Mr Beazley were regular methamphetamine and cannabis users. Together you decided to commit burglaries of houses to obtain items and sell them to fund your drug habits. You targeted rural properties where you knew there was a good chance of finding valuable property and a lower chance of being caught in the act.

[4] The summary of facts that you have signed states that you committed four burglaries in April and May 2009, taking items such as flatscreen televisions, jewellery, a fishfinder and a valuable pool cue. As I understand it, Mr Beazley went into the houses whilst you waited outside and kept a look out.

[5] On the first two occasions you and Mr Beazley stole property valued at more than $25,000. You then traded, or attempted to trade, the stolen items for cash and drugs.

Personal circumstances

[6] Mr Koroi you are 46 years old and in recent times have been living on a family farm, in a caravan. You have four children aged between 6 and 25 and have a particularly close relationship with your daughter, [C].

[7] You do have a number of previous convictions both for drug related matters and dishonesty offences. It is fair to say that many of those which might be considered relevant are historic and that there has been a marked improvement in your conduct over the last 10 years or so. You are to be congratulated for that and I hope that this spate of offending is a one-off lapse.

[8] In preparing for the sentencing today, I have considered the summary of facts, the pre-sentence report, the victim impact statements and the written and oral submissions which the Crown and your own counsel have made and of course the letter which you have given me this morning.

[9] It appears from the pre-sentence report that you now acknowledge that you have a problem with substance abuse. The Probation Officer believes that you wish to address your offending. The Officer says, however, that the important matter will be whether the wish you say that you have to address your drug offending translates into a real engagement with the rehabilitation process. That is another way of saying that actions speak louder than words.

Purposes and principles of sentencing

[10] In sentencing you today I need to bear in mind the relevant purposes of sentencing in a case such as this. Those purposes are to:

promote in you a sense of accountability for harm caused by your

_offending;

to denounce your offending and to deter you and others from this type of offending in the future; and

_{to promote your rehabilitation, so that there is not another lapse.}

[11] I also need to seek to achieve consistency in sentencing levels and that has a particular impact in sentencing you on the different charges.

Approach to sentencing

[12] There is a three step process that I must follow in sentencing you today. I must first establish a “starting point” which reflects the culpability inherent in your offending and which reflects the purposes and principles of sentencing to which I have referred. I must then consider whether I should adjust that starting point to reflect any matters which are personal to you, favourable or unfavourable. I must then take into account your guilty plea.

[13] I take the lead offence as the charge of conspiracy to supply methamphetamine. With this as the lead offence, the first step is to consider the guidance provided by the Court of Appeal in R v Fatu.[1]

[14] In that case, the Court of Appeal laid down sentencing guidelines for offending which involves the manufacture and supply of methamphetamine.

[15] Your offending, at a total weight of one to one and a half grams, would fall within band one of Fatu if this were a case of supply. In Fatu, the Court of Appeal said that, if the quantity of methamphetamine involved was less than four grams, a starting point of two to four years’ imprisonment generally would be considered appropriate. At one to one and a half grams, the quantity involved in your case is at the lower end of the scale. I adopt a starting point of two years’ imprisonment on that charge.

[16] I must then make some adjustment to reflect the fact that you are charged with conspiracy to supply, not supply itself. Other offenders who were caught as part of the same operation, and this includes Brian, Pamela and Nicole Cochrane,

_{and Jonelle Phillips, received discounts of 15 per cent to reflect that they were}

charged with conspiracy to supply. I propose to make the same deduction in your case which gives me a starting point of one year eight months’ imprisonment on the conspiracy to supply charge.

[17] I have cross referenced this starting point to the decision of his Honour, Asher J, in the case of a co-accused, R v Ashby.[2] The amount of methamphetamine in the Ashby case was slightly less than in yours, but his Honour adopted at starting point of one year eight months’ imprisonment and I do likewise.

[18] I then turn to the burglary charges. There are four separate burglary charges, each connected with residential properties, and on three occasions property was stolen.

[19] As I indicated before to counsel, I do not consider your culpability to be any less than Mr Beazley’s. You knew what Mr Beazley was intending to do, it was clearly planned and whether he or you entered the houses does not, in my view, make a great deal of difference.

[20] Your counsel emphasised that your associate, Mr Beazley, was sentenced to three months’ community detention, in respect of three charges. Mr Beazley is, however, much younger than you, has no previous convictions and, as I understand it from his sentencing notes, he also pleaded guilty at a much earlier stage. In addition, Mr Beazley was also sentenced to supervision for 12 months and that too forms part of his sentence.

[21] So there are very clear differences between your situation and that of Mr Beazley’s which would have influenced the sentencing Judge. That said, plainly the punishment imposed on him is of some relevance in determining what is an appropriate sentence for you.

[22] Your counsel has referred me to a decision of her Honour, Courtney J, in the case of Shedden v Police.[3] In that case, Mr Shedden had been convicted on two

charges of burglary. He did, however, have many more previous convictions for burglary than you and her Honour took those convictions into account when setting the starting point. In that case her Honour adopted a starting point of two years’ imprisonment. Of course, in your case there are four charges.

[23] Counsel for the Crown has said that the appropriate starting point on the burglary offending is much higher than was adopted in the Shedden case. In the circumstances what I propose to do is to uplift the sentence for the conspiracy to supply charge by 12 months’ imprisonment to take account of the burglary charges. In doing so, I am influenced by the sentence which was imposed on Mr Beazley.

[24] That gives me a starting point of two years eight months’ imprisonment in respect of all charges.

[25] In setting that starting point I have taken into account the fact that I must assess the totality of your offending and be satisfied that the starting point is proportionate to that offending. I consider that a starting point of two years eight months’ imprisonment is appropriate in the circumstances.

[26] I then turn to consider the favourable and unfavourable matters which relate to you personally.

[27] I propose to make a two month uplift because of your previous drug related convictions and your previous dishonesty offences. That takes me to two years 10 months’ imprisonment.

[28] I then must consider the matters set out in the probation report, particularly your expressed motivation to address your offending. As I say, I have read your letter and I take that into account also. I also take into account your guilty plea. There is a clear difference between the Crown and your counsel as to when the plea was intimated. In the circumstances, taking all of the matters into account, the plea and your motivation to change, I propose to make a deduction of 10 per cent. This gives a final total sentence of two years five months’ imprisonment.

Sentence

[29] Mr Koroi:

(a) on the charge of conspiracy to supply methamphetamine I sentence you to two years five months’ imprisonment.

(b) on each burglary charge, I sentence you to 12 months’ imprisonment,

to be served concurrently. [30] Stand down.

..................................................................

PETERS J

---

[1] R v Fatu [2006] 2 NZLR 72.
[2] _{R v Ashby HC Whangarei CRI-2010-027-143, 6 July 2011.}
[3]Shedden v Police HC Auckland CRI-2010-404-34, 22 June 2010.