Director of Public Prosecutions v Uluakiahoia
[2023] VCC 1863
•16 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02028, CR-21-02029
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TAKAI ULUAKIAHOIA |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 August 2023; 28 August 2023 | |
DATE OF SENTENCE: | 16 October 2023 | |
CASE MAY BE CITED AS: | DPP v Uluakiahoia | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1863 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Trafficking Large Commercial Quantity Drug of Dependence --- Methylamphetamine --- Standard sentence offence --- Possess drug of dependence --- Possess cartridge ammunition --- Commit indictable offence whilst on bail --- R v Verdins --- Persistent depressive disorder --- Adjustment disorder --- Complex PTSD --- Tempering of considerations of moral culpability after Sentence Indication Hearing --- Plea of Guilty --- Remand during COVID pandemic --- Reasonable prospects of rehabilitation --- Ongoing family support --- Parity
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Pidoto v R (2006) 14 VR 269 --- DPP v Jabbour [2023] VSCA 204; DPP v Richardson [2023] VSCA 241 --- R v Verdins [2007] VSCA 102 --- Worboyes v The Queen [2021] VSCA 169 --- Gregory v The Queen [2017] VSCA 151 --- Al Janabe v The Queen [2021] VSCA 252 --- DPP v Assaad [2022] VCC 1422 --- DPP v Natale [2022] VCC 1199 --- DPP v Yuksek [2022] VCC 683 --- DPP v Kha [2019] VCC 1682 --- DPP v Adler [2023] VCC 384 --- DPP v Craig [2023] VCC 628.
Sentence: 11 years and 6 months imprisonment; NPP 6 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering | Office of Public Prosecutions |
| For the Accused | Mr M. Kozlowski | Papa Hughes Lawyers |
HER HONOUR:
1Takai Uluakiahoia, you have pleaded guilty to one charge of trafficking in a large commercial quantity of a drug of dependence, two charges of trafficking in a drug of dependence and one charge of possession of a drug of dependence. All charges concern the trafficking or possession of methylamphetamine.
2You have also pleaded guilty to two summary offences relating to possession of cartridge ammunition and the commission of an indictable offence whilst on bail.
3Your offending occurred over several months in 2020. You were 37 years old. The circumstances are as follows.
Summary of offending
6 and 7 August 2023: Charge 1 – Trafficking in a drug of dependence; Summary Charge 3 – Possession of cartridge ammunition.
4On 6 August 2020, police responded to a request by your former partner to conduct a welfare check on you. She was concerned that you may harm yourself due to an email you had sent her and your children.
5Police attended your house in Kilsyth. You were not present, and the door was unlocked. Police entered and located a clandestine drug laboratory in your garage.
6The following day a search warrant was executed on your premises in your absence and police from the Clandestine Laboratory Squad located chemicals and equipment which they identified as being used for the manufacturing of methylamphetamine.[1] This forms the basis of Charge 1 – trafficking in a drug of dependence by way of manufacture for sale.
[1] Sodium hydroxide, sulphuric acid, nitric acid, and equipment such as filter papers, glassware and flasks, a gas burner, a thermometer, gloves and a breathing apparatus.
718 rounds of .357 cartridge ammunition was also found in your garage, forming the basis of Summary Charge 3.
8 September and 12 October – contact with covert operative
8You were subsequently arrested on 8 September 2020. You denied all knowledge of the laboratory, though admitted you had lived alone for an extended period of time.
9You were placed in a police cell and it was at that time that a covert police operative was placed alongside you.
10You and he got into a discussion relating to your drug trafficking activity and you told him you could supply him drugs. You told him that the laboratory was yours and that you had stopped making methylamphetamine ‘about a month ago’. You also told him that your methylamphetamine was ‘good quality’ and that you sold 28 grams for $7,000.
11You scratched your phone number onto a polystyrene coffee cup prior to being bailed, with a view to him contacting you for the purpose of buying drugs. Several weeks later, on 12 October the covert operative made contact for that purpose.
12You asked him to message you via Wickr, an encrypted messaging application. You and he had a series of conversations regarding supplying him with methylamphetamine.
13You agreed to supply 3.5 grams of methylamphetamine to him, and then discussed pricing for larger amounts; in particular, that it would be cheaper for the covert operative to purchase in kilograms.
13 October: Charge 2 – Trafficking in a drug of dependence.
14You met the covert operative the next day on 13 October at your home, and again advised him that you would be able to supply kilos of methylamphetamine. You gave him prices in the hundreds of thousands of dollars.
15You and he then travelled to an address in Springvale where he gave you $2,000. You retrieved a bag of methylamphetamine from inside the address and gave it to him. That bag was later analysed and found to contain 3.2 grams of methylamphetamine at 81 per cent purity. This forms the basis of Charge 2 – trafficking in a drug of dependence.
13 October & 11 November: Charge 3 – Trafficking in a drug of dependence – Large commercial quantity
16Between your meeting on 13 October and 11 November, you continued to have contact with the covert operative over encrypted messaging applications regarding a subsequent purchase of a large quantity of methylamphetamine. Those conversations included you telling him pricing and comparative pricing, as well as talking about the expected quality and the fact you would liaise with your supplier, who you said was in contact with 'all the main players in Victoria'.
17It was ultimately agreed that the covert operative would purchase one kilogram of methylamphetamine for $260,000, and the purchase would take place in either Hallam or Endeavour Hills from a different supplier.
18For that purpose, on 11 November the covert operative attended your house. You and he drove to an address in Narre Warren North. During the drive, you informed him that you would meet with “Ben”.
19You arrived at the Narre Warren North address around 11:00 am. Stationary in the driveway were two cars being driven by Mr Fu and Mr Warda, your co‑offenders. You parked next to Mr Fu, who told the covert operative to sit in the back of Mr Warda's vehicle. Mr Warda then handed the operative a brown paper bag with a package that was triple-sealed. Mr Fu allowed the operative to break the seals so that he could inspect the substance inside, which was confirmed to be methylamphetamine.
20This conduct forms the basis of Charge 3.
21No money was exchanged, with the operative told by Mr Fu to return with the full payment of $260,000.
22You and the covert operative then travelled to Bunnings in Dandenong South for the false purpose of the operative obtaining money from what you believed was his 'group' of fellow purchasers.
Arrest & Charge 4 – Possess Drug of Dependence
23On arrival at Bunnings you were arrested in the car with the covert operative. You were transported to your Kilsyth address and a warrant was executed. A snap-lock bag containing 0.9 grams of methylamphetamine at 86 per cent purity was located. This forms the basis of Charge 4 – possess drug of dependence.
24You gave a no-comment interview to police and were remanded. You have not been in the community since that time.
Sentencing Principles
25Trafficking offences constitute serious criminal behaviour. The movement of drugs in our community is a serious problem with wide reaching ramifications.
26Although the type of drug and relative harm it causes is not a relevant circumstance of a trafficking offence[2], it is well understood that methylamphetamine, or ice, is a scourge on our community. Rarely a day goes by in this court when Judges are not dealing with offences committed in the context of an ice addiction and the extreme behaviours that this drug causes. It is highly addictive. It is corrosive to those who use it. Persons addicted to it often behave in violent and unpredictable ways. That behaviour is often inflicted on families, partners and children or on other innocent people going about their lives and business in the community.
[2] Pidoto v R (2006) 14 VR 269.
27The movement of such drugs within the community is therefore serious offending. It is a disgraceful drug and those who manufacture it and who sell it must be dealt with harshly.
28Sentences imposed for such offending must have as a focus general deterrence, denunciation and community protection. That is, the sentence I impose must deter others from trafficking such drugs in large quantities for a profit. It must announce to you and to others minded to engage in trafficking, the denunciation by this Court on behalf of the community, and it must be designed to protect the community from the corrosive effects of drugs.
29Trafficking offences are governed by a quantity-based scheme. That is, Parliament has determined that there is a sliding scale of seriousness of a trafficking offence based on the amount of drugs trafficked. For an offence of trafficking (simpliciter) such as Charge 1 and Charge 2, the maximum penalty is 15 years' imprisonment. For an offence of trafficking in a commercial quantity the maximum penalty is 25 years' imprisonment, and for an offence of trafficking in a large commercial quantity the maximum penalty is life imprisonment. Quantity is thereby a key indicator to offence seriousness and a key point of comparison between cases.
30A large commercial quantity of methylamphetamine is 750 grams. The 1 kilogram sold here is above that threshold. That fact places you at the highest end of that sliding scale, facing a maximum penalty of life imprisonment. The standard sentence for trafficking in a large commercial quantity of a drug of dependence is 16 years' imprisonment. That has been set by Parliament as a guidepost, much like the maximum penalty, to indicate the level of seriousness.
31In assessing the seriousness of your particular offending, Mr Pickering on behalf of the Prosecution rightly concedes that within that highest band, you are at the lowest level given the quantity of drug involved. That is, you trafficked 1 kilogram. You knew you trafficked 1 kilogram and by extension, at law you knew you were trafficking in a large commercial quantity. However, there is no upper limit on the amount of drugs constituting a large commercial quantity. I take that fact of the quantity into account. It distinguishes you from other cases which range into the hundreds of kilograms.
32The assessment of seriousness of your offending does not stop at the quantity.[3] The case law makes clear that I must consider the role you played in the movement of drugs from supplier to buyer. To that end I must take into account the conversations you had with the covert operative both prior to and on the day of this transaction.
[3] DPP v Jabbour [2023] VSCA 204; DPP v Richardson [2023] VSCA 241.
33You told him you were a cook, manufacturing and selling your own methylamphetamine. The truth of that claim is supported by your plea of guilty to Charge 2 – trafficking by way of manufacturing
34You told the covert operative that you profited from your manufacture and sale, at times taking 100 per cent of the profit. Also, that you had been dealing with the co-offender supplier for about a year.
35You told him you could supply bigger amounts, in kilograms, and engaged with him in discussing future transactions even as you went to collect money with him on 11 November.
36While allowing for a level of boasting, and while I cannot determine the precise truth of those claims and you are not sentenced for activity beyond the pleas of guilty, what those conversations and actions do show is that you were very actively involved in the business of drug trafficking and of doing so at a reasonable level and for a profit.
37There is nothing about your own drug use to suggest this was trafficking purely to support an addiction. There is nothing to reduce your moral culpability in that way. Indeed, despite your own experience of addiction, you were willing to participate in the movement of drugs to innocent members of our community.
38Your role was critical to the success of that movement – you were the broker, marketer, and spruiker of a commercial deal. Your offending was premeditated, planned, deliberate and determined.
39Your active participation is demonstrated through your own manufacture of methylamphetamine, through the pursuit of a 'sample' to demonstrate your bona fides to the covert operative, and ultimately through the supply of a large commercial quantity. That combination of offences occurs over several weeks. I note that although the trafficking large commercial quantity charge is a single date charge, the fact of the lead up and the context of those discussions is relevant to set it in its true context.
40Your counsel, Mr Kozlowski submitted that there was no benefit for you to gain, and that there was no evidence of a lavish lifestyle.
41Mr Kozlowski also submitted that you were taken advantage of by the covert operative, who is someone you thought was a friend and who you trusted as someone of your own cultural background. He submitted that the purchase was orchestrated by the operative and went as far as to submit that you were merely doing a favour for a friend.
42I reject those submissions. I am satisfied that this relationship was not a friendship in the true sense of the word, but a business relationship. It had its genesis in a discussion about drugs and the fact you could supply them. Contact was for the purpose of pursuing that proposal, one day after which you supplied the sample. Ongoing contact was in furtherance of that plan. You instructed the covert operative to use encrypted messaging. On one level you may have viewed him as a friend, but there is very little casual conversation within your interactions. This was a commercial transaction
43Further, I cannot accept you would gain nothing. All of your dealings and conversations suggest you would have gained financially from this sale. I cannot draw any conclusion regarding how much, other than to say a person taking such a risk is likely to only take that risk if there is a commensurate reward.
44Such offending must be denounced in the strongest terms and the community must be protected.
45While accepting the quantity is at the lowest end for this category of trafficking and accepting this distinguishes you from more substantial commercial operations, this is at least a mid-range example of trafficking in a large commercial quantity for the reasons I have outlined.
Personal Circumstances
46I turn now to your personal circumstances. I have had the benefit of two Psychological Assessment Reports authored by clinical psychologist Alyson Mynard, the first dated 2 January 2023 and the second dated 11 August 2023.
47You were born in New Zealand to a Māori mother and a Tongan father and are one of their six children. You came to Australia in 1993 at 10 years old, and you are now a citizen.
48Your relationship with your parents was difficult. You report that you and your older brother felt neglected. You state your parents were violent with their discipline and that you were scared of them; conversely, that they were more emotionally involved with your younger siblings. As you got older, you avoided being at home as much as possible, and as of now you remain only in infrequent and superficial contact with your parents.
49You told Dr Mynard that you believe that you were sexually abused as a child by an aunt, and that your brother reports similar memories. You have not disclosed this previously and did not want to discuss your experiences further.
50You do have other happy memories of your childhood involving friends and extended family. You also describe enjoying primary school, and did not struggle academically, though behavioural issues arose soon after starting secondary school. You report being frequently suspended for stealing, fighting, and truancy. You suffered racial bullying and became involved in what you describe as gang mentality. Your father ultimately pulled you out of school in Year 9, and you did not receive any support for your behavioural issues.
51You began smoking cannabis from the age of 15, using heavily until you were jailed at 24.
52You remained living with your parents until around that time. You obviously still had a relationship with them, despite the difficulties of your upbringing. I have read sentencing remarks from your appearance in this Court on charges of armed robbery in 2008 when you were 25 years old. Your father gave evidence at your plea. He is described as a proud man with proud heritage
53In the lead up to that offending which involved a spate of armed robberies on soft targets such as convenience stores, you were heavily dependent on cannabis, using it daily. After your release from imprisonment, you continued to be abstinent from cannabis but used cocaine, MDMA and Xanax intermittently.
54You have had two significant relationships. The first from 2000 to 2010. You had two children when you yourself were barely an adult, aged 18 and 22. That relationship was tumultuous with many separations and reunions. You admit to family violence and that your partner needed to obtain intervention orders against you. The relationship broke down finally and your partner moved with your children to New Zealand in 2014. You no longer have any contact with them.
55You report using methylamphetamine in particular in 2011 when that relationship ended and you lost contact with your children.
56You were then in a relationship from 2011 to 2019, and you have two daughters to that relationship. You report your own behaviour improved following a period of custody, which gave you opportunity to reflect on yourself and cut out negative influences in your life. You remained drug free for a lengthy period. You describe yourself as being ‘in full “dad” mode’, and that you worked hard to create a good environment for your children and to parent in a pro-social style. You report that this was difficult as a result of what was instilled in you growing up about “manhood”. You and your partner had conflict over parenting and you report she would belittle you in front of your daughters.
57Your behaviour deteriorated and again involved violence, with a particular incident occurring in 2015. You participated in a Men's Behaviour Change program, however in 2020 a further intervention order was taken out on the basis of the 2015 incident and the relationship broke down irretrievably.
58You relapsed to drug use in 2020, smoking 1 to 2 grams per day of ice until you were remanded. That full relapse occurred in the context of your relationship breakdown, including your discovery that your partner had moved on to a new relationship despite your hope of reconciliation. It was also in the context of being made redundant in early 2020 due to the impact of the COVID-19 pandemic on the construction industry. Your life ‘went downhill’, and you report that ice helped numb your emotions. You describe feelings of worthlessness, helplessness and feeling suicidal. You moved to the house in Kilsyth where you would occasionally see your children.
59You suffered depression and attempted to commit suicide, and continued to experience suicidal thoughts after your breakup. You report that you had very little consequential thinking and no longer had any 'care factor' and were taking risks.
60A couple of months before your incarceration, you wrote a suicide message to your family, who intervened. You credit your sister as the reason you did not commit suicide. Your former partner reacted by contacting police which was the prompt for police involvement here.
61I heard evidence from your sister on the plea. She confirmed the events in early 2020 and the fact that the family observed you to be struggling mentally and emotionally. She said you were depressed, difficult to contact and spending time alone in a dark room. Your parents travelled from New Zealand due to the concern of your siblings about your mental state. Your sister was aware that you had made suicide attempts, and that you felt helpless regarding your children.
62I was also provided with a number of Facebook Messenger messages from your account that were sent to various family and friends in late 2019 and early 2020. Those messages are contemporaneous records of your mental state. They include expressions that you could not live any more, that you were ‘hurt and lost’, that the breakdown of your family was one of the ‘saddest moments [you’ve] had to endure’, that ‘[you’ve] been alone on this journey for years’ and had tried suicide 8 times in 4 months.
63In Dr Mynard's view your symptoms of depression around that time were likely severe. You would often go into dissociated states, possibly catatonic in your depression. You state this period was the worst time of your life.
64You also report having experienced anxiety and paranoia, which you largely attribute to your use of methamphetamine. You experienced visual and auditory hallucinations, and at times took the handles off doors to stop people breaking into your house. You say you attempted to make contact with the police, Men's Helpline, and counselling services, but services were overrun at the height of the COVID pandemic.
65Your lack of contact with your children is something that saddens you, though you state to Dr Mynard that this was something you ‘deserve’. You describe experiencing a ‘mix of heartbreak, grief, anxiety, loneliness and low self-esteem’.
66Ultimately, Dr Mynard diagnoses you with Adjustment Disorder with mixed disturbances of conduct and mood, Persistent Depressive Disorder, and Stimulant Use Disorder. In her January report, Dr Mynard noted that you display symptoms of Complex PTSD; however, in her August supplementary report she opined that you reach the diagnostic criteria.
R v Verdins
67Mr Kozlowski relies on your parlous mental health around the time of this offending to submit that the principles in R vVerdins[4] are enlivened. He submits there is a nexus between your poor mental health and your offending by reliance on Dr Mynard's opinion that your depressive symptoms ‘impacted his impaired judgement, risk taking and lack of consequential thinking’. I accept that your mental health was poor to the point of constituting a mental impairment. I accept the evidence of the background circumstances and the analysis through Dr Mynard's opinion works to reduce your moral culpability to an extent. In tandem, the consideration of specific deterrence should also be moderated.
[4] R v Verdins [2007] VSCA 102.
68This matter was the subject of a sentence indication hearing at which I indicated that the term of imprisonment I would impose would not exceed 13 years. Mr Kozlowski submitted on the plea that the more recent report of Dr Mynard should result in a reduction of that term, given it establishes the applicability of Verdins.
69Mr Pickering argues that any reduction should be modest.
70I agree with both submissions. That is, I agree that a finding of Verdins, which I could not make on the material available at the sentence indication hearing but can make now, means there must be some tempering of my considerations of moral culpability and specific deterrence.
71However I also agree with Mr Pickering that any reduction will be modest for the following reasons. First, as conceded by your Counsel there was significant interplay between your drug use and your mental health state. Second, I had a very thorough report from Ms Mynard from January 2023 in which she did not simply describe your past history but analysed how your past history shaped you. Therefore, at the sentence indication I was aware of your difficult upbringing and relationship with your parents. I was also aware of the circumstances in 2020 involving the loss of your relationship with your partner and children, coinciding with the loss of your employment and the general impact of the COVID-19 pandemic. I was aware you were expressing suicidal thoughts and was well aware of the concerns about your mental health which prompted the welfare check. I took those matters into account in moderating sentence. Any further moderation, on the basis of a formal diagnosis will therefore be modest.
Plea of Guilty
72You have pleaded guilty to this offending and you receive the benefit of that plea. A plea of guilty has a utilitarian benefit in that it saves the Court and the community the time and cost of a trial.
73Your plea of guilty was not entered until 13 February 2023, after the sentence indication hearing and is therefore not an early plea. However, I accept there were some complexities in relation to the appropriate indictment. Finalising your plea and sentence was delayed at the request of your Counsel so that relevant reports could be obtained.
74I also accept that you are still entitled to a palpable discount given your plea was entered while the impact of the COVID-19 pandemic was still at play on Court trial listings.[5]
[5] Worboyes v The Queen [2021] VSCA 169.
75Your Counsel submitted that your plea is evidence of remorse. I have given considered to that submission along with the letter you have written, tendered on your plea. Such a letter has to be treated with some circumspection given it may be self-serving. However, I do see in your letter an acknowledgement that there are victims of your offending, and your understanding after three years on remand of the role of methylamphetamine in crime. You indicate your intention to work towards giving back to community in particular in advocating for men in positions similar to you, recognising the limit on available supports. I accept your expressions of remorse are genuine.
Prospects of rehabilitation
76In relation to your prospects of rehabilitation I take into account your prior criminal history. It dates to 2004. While there is no prior offending relating to drug trafficking, your history bears out your own behaviour when drug affected, including theft and burglary offences which then escalated to armed robbery for which you spent three years in custody. You have also been convicted of offences of violence including assault and causing injury recklessly, as well as for some driving offences. I take into account that your most recent matter is more than 10 years old and your most serious matters even older. I take into account the fact that since the term of imprisonment imposed for armed robberies, you have been back before the courts on one occasion only, resulting in a fine.
77I take into account you have ongoing family support.
78You have had a solid employment history, working over 14 years in construction, primarily building elevators, which you describe as being well-paid. You told me that your most recent role was with United Lifts, dealing directly with customers and trades people. You obtained many certificates and qualifications throughout your career, and ultimately became a project manager.
79Mental health treatment and specific treatment to prevent a relapse to drug use will be key to minimise your risk of recidivism. To your credit you engaged in six months of counselling whilst you were in Barwon on remand for this offending, prior to being moved to Port Phillip Prison.
80I note Dr Mynard assesses you as moderate risk of reoffending.
81I note that you report to Dr Mynard that you have a desire to use your own experiences to help others like you, particularly young people from your cultural background, who have struggled with substance abuse and criminal lifestyles.
82In my view if you can abstain from drug use your prospects of rehabilitation, in particular after serving a lengthy sentence, are reasonable.
Remand & impact of custody
83You have now been in custody on this matter for approximately 3 years. Your remand has occurred throughout 2021 whilst the COVID pandemic was still at its height in Victoria. That has been a most difficult time for prisoners in this State, with limitations on in‑person visits and the availability of programs. I take those matters into account.
Parity
84Mr Kozlowski submitted that there should be an element of parity between your sentence and the one I imposed on Mr Warda, arguing that his role was not dissimilar to yours. I reject that submission for the following reasons.
85Your role was far more extensive, reflected in not only your admissions to manufacturing methylamphetamine, but also in your communication over weeks with the covert operative and your sourcing of methylamphetamine from two separate suppliers.
86Mr Warda was a 22-year-old without prior criminal history. He pleaded guilty to Trafficking in a Commercial quantity of methylamphetamine reflecting his single day involvement in handing over the package at the direction of Mr Fu. His personal circumstances including significant inpatient rehabilitation were highly relevant matters in sentencing him.
Submissions as to Sentence
87Your Counsel conceded that the only sentencing option available to me was one involving a term of imprisonment with a head sentence and a non-parole period. However, he submitted that the parole period should be substantial so as to allow you a long period of adjustment back into the community. Mr Pickering disputed that it was in the interests of justice to reduce the non-parole period below the 60 per cent norm for a standard sentence.[6]
[6] Sentencing Act 1991, s 5B(2)(b).
Current sentencing practices
88Within the limitation of the standard sentencing regime I have had regard to current sentencing practices for trafficking large commercial quantity. I have been assisted by Counsel in that regard.[7] I have also had regard to sentences for trafficking by way of manufacture, and trafficking simpliciter.
[7] Gregory v The Queen [2017] VSCA 151; Al Janabe v The Queen [2021] VSCA 252; DPP v Assaad [2022] VCC 1422; DPP v Natale [2022] VCC 1199; DPP v Yuksek [2022] VCC 683; DPP v Kha [2019] VCC 1682; DPP v Adler [2023] VCC 384; DPP v Craig [2023] VCC 628; DPP v Richardson [2023] VSCA 341
89As always there are similarities and differences between both offending and offender. However, the level of sophistication, the volume of drugs trafficked and the time period over which drugs are trafficked are significant considerations. I acknowledge that those matters distinguish you from many of the decided cases and mean yours is a case where a sentence lower than the standard sentence is appropriate for Charge 3.
90You have pleaded guilty to a number of separate offences which would ordinarily be reflected in orders for cumulation. Given the interplay between the drug related offences, in my view it is appropriate here for the amount of cumulation I would otherwise have ordered, to be reduced.
91In relation to the non-parole period, I accept that that period may be slightly less than the 60 per cent as a result of your mental health considerations and lack of prior criminal history. I am just going to pause for just a moment. I am going to stand down for 10 minutes before I finalise the sentence. Does anyone else need to be in another court?
92MR KOZLOWSKI: I have a ground rules hearing at 10.15, I will inform that court that we are running a bit late here.
93HER HONOUR: Thanks. Mr Pickering?
94MR PICKERING: I am in a plea at 10.30, Your Honour. I am outside that court room now.
95HER HONOUR: All right, well I will not be more than 10 minutes, thanks.
96MR PICKERING: Your Honour pleases.
97(Short adjournment.)
98HER HONOUR: Thanks very much. Apologies, I just was concerned about a query from my associate about whether there had been an arraignment on the summary charges, but I understand that was completed. So I will proceed, thanks very much.
Sentence
99Mr Uluakiahoia, the sentence I impose on you is as follows.
100On Charge One of trafficking a drug of dependence by way of manufacture, you are convicted and sentenced to 4 years' imprisonment.
101On Charge Two of trafficking a drug of dependence you are convicted and sentenced to 2 years' imprisonment.
102On Charge Three of trafficking a drug of dependence – large commercial quantity – you are convicted and sentenced to 9 years and 6 months' imprisonment.
103On Charge Four of possession of a drug of dependence you are convicted and sentenced to 6 months' imprisonment.
104In relation to Summary Charge 3, that is possession of cartridge ammunition you are convicted and sentenced to 2 months' imprisonment.
105In relation to Summary Charge 5, that is the offence of committing an indictable offence whilst on bail, you are convicted and sentenced to 2 months' imprisonment.
106I direct that the sentence on Charge 3 is the base sentence.
107I make the following orders for cumulation. 18 months of the sentence on Charge 1 and 6 months of the sentence on Charge 2 are to be served cumulatively on each other and on the base sentence.
108The total effective sentence therefore is 11 years and 6 months' imprisonment.
109I further order that you serve a minimum term of 6 years and 6 months' imprisonment before becoming eligible for parole.
110I declare that you have already served 1069 days of pre-sentence detention and that that figure should be reckoned as having been served under this sentence.
s.6AAA
111But for your plea of guilty the sentence I would have imposed would have been a total effective sentence of 15 years' imprisonment with a non-parole period of 9 years' imprisonment.
112I propose to make the ancillary orders in the terms sought, noting that they are made by consent.
113Are there any issues to raise counsel?
114MR PICKERING: Your Honour, I am just double checking now but I think the cartridge ammunition is a fine only, not a term of imprisonment. I will just double check that, otherwise, no.
115HER HONOUR: All right. Mr Kozlowski.
116MR KOZLOWSKI: I agree, I think it is too, Your Honour. Otherwise I have got no other issues.
117HER HONOUR: Okay.
118MR PICKERING: Sorry, Your Honour, I am just looking at the Act.
119HER HONOUR: No, that's all right.
120MR PICKERING: Section 124 from memory. Yes, Your Honour. My instructor has also confirmed it is 40 penalty units on that charge (indistinct words).
121HER HONOUR: All right, my apologies. Excuse me just one moment.
122Mr Uluakiahoia, in relation to summary Charge 3, that is the possession of cartridge ammunition, you are convicted and fined $500 and Mr Kozlowski will talk to you I am sure about how you can make arrangements for that payment or conversion.
123All right, thanks very much counsel. Apologies for that slight delay but we will now conclude, thank you.
124MR PICKERING: Your Honour pleases.
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