R v Koekoe

[2012] NSWDC 254

District Court

New South Wales

Medium Neutral Citation:	R v Koekoe [2012] NSWDC 254
Hearing dates:	12 November 2012
Decision date:	12 November 2012
Before:	Sides QC DCJ
Decision:	Sentenced to imprisonment consisting of a non-parole period of 6 months with a total term of 16 months. - Matters on s 166 withdrawn and dismissed. - Order the drugs to be destroyed
Catchwords:	CRIMINAL LAW - Sentence - Discount for guilty plea - Supply - Ecstasy - Ketamine - Methylamphetamine - Amphetamine
Legislation Cited:	Crimes (Administration of Sentence) Act 1999.
Cases Cited:	R v Borkowski (2009) 195 A Cr R 1
Category:	Sentence
Parties:	The Crown Tiare Koekoe
Representation:	C Irani - Crown W Sandilands - Offender
File Number(s):	2012/205187

Sentence

1. HIS HONOUR: The Offender Tiare Koekoe appears for sentence consequent upon her pleading guilty on 1 November 2012 to supplying 22.8 grams of ecstasy at Olympic Park on 30 June 2012.

1. The offence has a maximum penalty of fifteen years imprisonment and/or 2,000 penalty units. There is no standard non parole period and it cannot be dealt with summarily.

1. The Offender pleaded guilty on arraignment and on the first occasion that the matter came before this Court. In a case a few years ago, the Court of Criminal Appeal [R v Borkowski (2009) 195 A Cr R 1] emphasised the need for consistency across the State in the approach to the discount given for the utility of guilty pleas. Here at Parramatta, as the list judge, it is patently obvious that only a tiny percentage of cases committed for trial are resolved by way of a plea of guilty upon arraignment. There are a large number of matters involving offenders who plead guilty in the Local Court and who are committed for sentence. But, of those who are committed for trial, on each Monday somewhere in the order of twenty-five to thirty-three per cent of cases where a trial is due to begin are resolved by way of a guilty plea.

1. There is a need to encourage such guilty pleas to be entered at a much earlier date. The consequence of this high percentage of matters listed for trial that resolve in guilty pleas on the day of the trial or within the week the trial is listed is that the Court has to over-list the matters that are listed for trial. This sometimes results in matters being marked "not reached", which can involve great expense to the taxpayer and to self-funded litigants. Notwithstanding the need to ensure that the approach is consistent across the jurisdiction, it seems to the Court that there is a need to revisit the percentage of a discount delivered in the usual case where a guilty plea is entered on arraignment.

1. The only additional thing that occurs, usually between committal for trial and arraignment, is a Crown Prosecutor screens a matter and finds an indictment. The way the cases are conducted here suggests that conferences with complainants and witnesses usually take place at a point much closer to the trial date. It seems to the Court a much greater degree of energy and resources from the prosecution and police point of view are put in once a not guilty plea is entered and a trial date is fixed, in comparison to the effort and resources put in between committal for trial and arraignment. For this reason the Court proposes in this case, having considered these matters as well as the need to consistency, to extend a discount of about twenty per cent to reflect the utility of the Offender's guilty plea.

1. There is no evidence before the Court of remorse and the Court is not satisfied the conditions referred to in para 21A(3)(i) are met. Accordingly, no discount was given to reflect remorse.

1. The Offender apparently attended a dance party at Olympic Park on 30 June this year. Police were in attendance with a drug detection dog. At around 9.40pm, that dog indicated the presence of drugs on the Offender. Constable Fairley indicated to the Offender the dog had smelt drug in her presence and issued her with a caution. After asking her if she understood it, she said "Yes". After asking if she had drugs on her, she denied that proposition. She then placed her hands in her pockets. She was asked to keep her hands in front of her. She was then taken to a female constable who apparently escorted her to a command post located nearby. After being told that she was going to be searched, she was asked by the female officer if she had any drugs on her and replied in the negative. She appeared to be nervous, was stepping from side to side on the same spot and had her hands in her pockets.

1. She was then escorted into a searching room. When the police officer asked her to remove a top layer of clothing, which was apparently a tracksuit, she told the officer she had no underwear on. When she started to remove her pants, the officer heard a rustling sound and asked the Offender what it was. The Offender responded by saying she had her periods. The officer indicated she did not accept that proposition and asked the Offender to give her anything that she had. The Offender shook her head. Once her pants were off, it was apparent that she was wearing a pair of tights. The officer again gave her the opportunity to produce anything if she had them down her pants. It was at this juncture that the Offender folded down the waist of her tights and underwear and handed the officer a resealable bag containing black pepper substance and two other packages.

1. She was then asked some questions and agreed that the packages had been produced by her during a search. When asked if she could say what it was she said "No". When asked what was inside the bag, she said "pills". When asked "How many?" She said a hundred. She did not know what they were and told the officer she did not know where she got them. The Court notes that she declined later to sign the notebook. She was interviewed at Auburn Police Station and exercised her right to silence concerning the drugs found on her. Whether she was invited to adopt the conversation at the time immediately after producing the drugs during that interview is not established from the evidence. She did, during the interview, acknowledge that she used drugs in the past but said she had only ever used cannabis.

1. There was a total of 101 tablets in the bags. There were 73 tablets with a heart logo on them. These weighed 16.4 grams and contained 24.5%pure ecstasy. Another 26 tablets also had a heart logo on them. These weighed 5.86 grams and contained ecstasy but were not tested to determine the quantity of pure ecstasy in them. There were two further tablets that were loose and they tested positive to amphetamines. One of them also contained ecstasy along with ketamine and methyl amphetamine.

1. According to the last paragraph in the facts, pepper is used to disguise drugs from being discovered by drug dogs.

1. The Offender was nineteen when she committed the offence. She turned twenty in September of this year. Has two younger brothers and a younger step sister. The evidence discloses that she has the disadvantages of a dysfunctional upbringing because of domestic violence and, after her parent's separation which occurred when she was around ten or eleven years of age, she spent some time living with her mother and some time living with her father. She apparently had behavioural problems.

1. She was expelled in Year 8 for using cannabis. After attending a new school, she truanted frequently and ultimately completed Year 10 whilst in custody. The evidence discloses a sound work history, although she lost at least one job because of her addiction. She has been working in gaol.

1. The Court notes that she started doing martial arts when she was in kindergarten [resulting in misalignment ofher hips]. She has had a number of operations for those and claims to still have pain. She fractured her jaw in 2010 but did not have an operation to fix this because she chose to go to the Cook Islands because her father was remarrying.

1. The evidence discloses she has had the benefit of some counselling, including whilst at school, because of her attitude and rebellious behaviour. This seems to have improved the relationship between her and her mother.

1. Her substance abuse problem started when she was aged twelve or thirteen. That was an age when she would not have appreciated the long term consequences of that abuse. She claims that, since she has been in custody, she is over cannabis She did tell the psychologist that she participated in the Youth Drug Court program, although on the face of it, exhibit B1 does not support that. She did participate in the MERIT program. She claims that she was doing well. However, she was still abusing alcohol at least during that time, which was this year. Her consumption of alcohol increased after she terminated her pregnancy last year.

1. The Court notes that she does not have a respectful relationship with her step father.

1. The Offender does not have the benefit of prior good character. The Court noted the number and nature of matters dealt with in the juvenile jurisdiction between 2007 and 2010, including proceedings where earlier community-based orders were revoked. On 18 January 2012, she was:

• fined for damaging property, which was by way of graffiti, and driving while suspended;

• placed on a s 10 bond for six months for larceny;

• placed on a s 9 bond for two years for affray; and

• placed on a s 9 bond for eighteen months for assault police and resisting arrest.

It is an aggravating feature that all of these bonds were current at the time she committed this offence.

1. On 4 April 2012, she was charged with larceny and on 10 October sentenced to three months imprisonment commencing 1 July 2012 and expiring on 30 September last.

1. The Court notes that she has not breached any prison discipline rules whilst in custody.

1. One hundred of the 101 tablets contained ecstasy, 99 of these tablets combined weighed 22.26 grams. The two loose tablets, only one of which contained ecstasy, assuming they were of similar weight, would have weighed .28 grams, giving a total of 22.54 grams containing ecstasy. A vast bulk of those, 73% contained close to a quarter of their weight in pure ecstasy. Pepper was contained within the packaging in an attempt to disguise it. The Offender claims that she was not aware of the pepper.

1. The Offender claims that she had abused both alcohol and drugs. During her evidence she said she had taken three ecstasy tablets before going to this venue and consumed a cask of wine. She was not asked whether that was a two-litre, four-litre or five-litre cask of wine. In effect she claimed when giving evidence and speaking to the psychologist she had in fact forgotten about the drugs. In the Court's view, her account about the level of her intoxication was exaggerated. She understood the caution. She had the wherewithal not to sign the notebook wherein the officer had recorded the conversation. This is said to have occurred shortly after the drugs were produced from her underwear. Those admissions, although not later adopted, refer to a hundred tablets, which is very close to the number of tablets found, indeed only out by one. During the ERISP interview, she chose not to speak about the drugs that had been found on her. Further, there is no independent evidence that she was affected by either liquor and/or drugs. In the Court's view, if she was affected to the extent she claims, it is highly unlikely that she would have been interviewed by way of ERISP.

1. The Court is satisfied beyond a reasonable doubt that the offence was premeditated and that she had some appreciation that she was enmeshing herself in organised crime. One hundred and one tablets is a significant number of tablets. The admixture where that was determined is significant. In terms of weight and where it falls, it is relevant to consider what the table in schedule 1 has to say. The admixture containing ecstasy is about 30 times the trafficable quantity, which is 0.75 of a gram and around 18 times the indictable quantity and about 18% of the commercial quantity, which is 125 grams.

1. This quantity of drug distributed over a hundred tablets had the potential to do significant harm within the community. The Court notes that she has no prior offences of supplying drugs or indeed involving the possession of drugs. None the less, in the Court's view, this is an instance where she was trafficking in drugs to a substantial degree.

1. This is not the first time that she has breached conditional liberty. She claims that she had been on the MERIT program and doing well, yet continued to abuse liquor. She was placed on supervised bonds in January. There is no pre-sentence report to indicate how she was progressing in connection with her compliance with the bond beyond the commission of other offences.

1. There is evidence of a sound work history and working in custody, combined with not breaching prison rules and family support. In all the circumstances, the Court is satisfied that her prospects of rehabilitation and not re-offending are reasonable to good. Obviously, if she can successfully address her substance abuse problems, her prospects will be much better.

1. The Court took into account for the purposes of sentencing as set out in s 3A. It is not necessary to refer to all of those purposes. However, because of her relatively young age and dysfunctional upbringing, the Court gave greater weight to rehabilitation and less weight to deterrence.

1. The Court took into account that a sentence of imprisonment is a sentence of last resort.

1. Bearing in mind what the Court of Criminal Appeal have said about them, the Court took into account the sentencing statistics.

1. The Court proposes to commence the sentence on 30 September to reflect all pre-sentence custody in connection with this matter and including some time in prison on the day of her arrest.

1. The sentence is accumulated on the three months imprisonment referred to earlier. This, combined with the need for an extended period of supervised parole, led the Court to find special circumstances.

1. Tiare Koekoe, the Court convicts you and sentences you to imprisonment. It fixes a non parole period of six months and a total term of sixteen months to commence on 30 September 2012. The Court orders your release to parole on 29 March 2013. Such parole is to be subject to supervision and further supervision as provided for in the standard conditions of parole, prescribed by the regulations under the Crimes (Administration of Sentence) Act 1999.

1. I have sentenced you to sixteen months with six months non parole commencing on 30 September this year. That means you will be released to parole on 29 March next year and then be on parole for a period of ten months. If, during the ten month period that you are on parole, you commit further offences or breach any other condition of parole, such as not doing as your parole officers direct you, the State Parole Authority will revoke your parole and then you will have to go back to gaol to serve the balance of your sentence. Do you understand?

1. OFFENDER: Yes.

1. HIS HONOUR: The 166 charge is withdrawn and dismissed. I make an order for the destruction of drugs.

**********

Decision last updated: 15 February 2013