R v Peter Kokla
[2013] NSWDC 209
•03 June 2013
District Court
New South Wales
Medium Neutral Citation: R v Peter KOKLA [2013] NSWDC 209 Decision date: 03 June 2013 Before: Cogswell SC DCJ Decision: For the offence of possess a prohibited drug (MDA) s 10A dismissal.
For the offence of supply a commercial quantity of a prohibited drug (nexus/bromo) sentenced to 4 years imprisonment, non-parole period 2 years, 3 months.
For the offence of supply a prohibited drug (gamma butyrolactone) sentenced to 18 months fixed term imprisonment. Form 1 for 8 offences taken into account. Two supply sentences concurrent.
Catchwords: CRIMINAL LAW - Particular offences - drug offences - Sentence - relevant factors - prior criminality - significant that offences committed while on bail for drug offences and while undertaking MERIT program - criminal record includes drug supply offence - prospects of rehabilitation moderated by untreated serious drug addiction - standard non-parole period - supply commercial quantity offence not in middle of range of objective seriousness - lower end of objective seriousness - low street value and quantity - low purity (3%) - supply prohibited drug offence at lower end of objective seriousness - relatively low street value and quantity - offender a low level user/dealer - special circumstances - needs supervision on parole to deal with addiction and re-establish himself within community. Legislation Cited: Crimes (Sentencing Procedure) Act 1999, s 10A, s 32.
Criminal Procedure Act 1986, s 166, s 167(1).
Drug Misuse and Trafficking Act 1985, s 10(1), s 25(1), s 25(2), s 39P.
Poisons and Therapeutic Goods Act 1966, s 16(1).Category: Sentence Parties: Peter Kokla (Offender)
Regina (Crown)Representation: Counsel:
A Williams (Offender)
Solicitor:
Office of Director of Public Prosecutions (Crown)
File Number(s): DC 2012/89590
REMARKS ON SENTENCE
I am sentencing a 43 year old man who had no significant criminal convictions at all until a year or so ago. However those convictions - which were for drug offences - pointed to what was going on in his life. His life was spiralling out of control because of a very serious drug addiction problem. Then what happened is that the police found him with significant amounts of different drugs in his possession and he ended up being charged with a very serious drug offence and with other related drug offences. I have to now sentence him and both the defence and the prosecution agree that I have no other choice but to send him to prison. Indeed on Friday, when I heard the matter, I refused his application for bail.
I will first outline the charges which the man, whose name is Peter Kokla, faces, then I will say something about the circumstances of the offence, what happened and what the police found. I will then refer to matters which are personal to Peter Kokla because a judge has to take into account not only the seriousness of the crime that the judge is sentencing the offender for but also personal matters. I will then review the arguments by the prosecution and the defence and sentence Mr Kokla.
I am sentencing him for three offences.
The most serious is supplying a commercial quantity of a prohibited drug. The prohibited drug is known colloquially as nexus or bromo. Mr Kokla pleaded guilty to that charge at what the prosecution agrees was the earliest available opportunity. It was on 28 August 2012. In due course I will discount that sentence by 25 per cent in acknowledgement of that plea of guilty. That crime is an offence against s 25(2) of the Drug Misuse and Trafficking Act 1985. Parliament regards the crime as so serious that it has fixed a maximum of 20 years imprisonment to the offence. Not only that Parliament has fixed a standard non-parole period of 10 years to that offence.
The second offence that I am sentencing Mr Kokla for is an offence called possessing a prohibited drug. He had nine tablets of a drug colloquially known as MDA in his possession. That is an offence against s 10(1) of the Drug Misuse and Trafficking Act and carries a maximum of 2 years imprisonment. Mr Kokla pleaded guilty to that offence also, but he did not plead guilty until the day of his trial. In due course it is agreed, because that offence is relatively far less serious than the other two offences I am sentencing him for, that I can dispose of that by recording a conviction only.
The third offence is supplying a prohibited drug. The drug is colloquially known as GBL and is an offence against s 25(1) of the Drug Misuse and Trafficking Act. Parliament has fixed a maximum of 15 years imprisonment to that offence as well. Again Mr Kokla did not plead guilty to that offence until the day of his trial and in due course I will discount that sentence by about 5 per cent to represent the late plea. Mr Kokla spent 3 days in custody after he was arrested and, as I said, I refused him bail on Friday. That was 31 May 2013, so the sentences which I would impose will date from last Tuesday, 28 May 2013.
I will now say something briefly about how these charges came about. On Tuesday 20 March 2012 a couple of police were patrolling the suburb of Waterloo. They were in an unmarked car. It was the middle of the afternoon. They saw a Land Rover illegally parked. Mr Kokla was in the Land Rover and the police took some time to watch what he was doing. They walked towards the car and noticed that he was using a mobile phone. They pointed out that he was parked illegally. He said that he was waiting for a friend. They asked him for his identification. They noticed that his mobile phone was ringing constantly. They asked him to get out of the car. He was behaving suspiciously so far as they were concerned. Their suspicion went further than the fact that he was parked illegally.
They said they were going to search the car and he said that there was nothing that they should be concerned about. They found a backpack in the car and in the backpack they found what is described as a waist bag. Mr Kokla told them that there was a syringe in the waist bag. Then one of the police opened up the waist bag and found that it contained some coloured capsules and a Xanax bottle which contained tablets and it also contained a resealable plastic bag with some crystaline substance inside it. At that point the police told Mr Kokla that he was under arrest. He protested and asked them to give him a break because it was for his personal use. He acknowledged that he had some ice on him. When the police asked him about the syringe he said "I use it for my G". "G" was a reference to an illegal drug commonly referred to as GHB.
There was a bottle containing some gluggy fluid and Mr Kokla said it was water. The police found over $800 in cash and they also found two mobile phones. At this stage Mr Kokla, having been arrested, was taken by the police to Redfern Police Station and a more thorough search was conducted of the backpack as well as the waist bag. Police had a lot to find in those two bags. So much did they find that later that afternoon Mr Kokla found himself charged with a large number of drug offences. I should say briefly what they are.
When they looked in the backpack the police found a drink bottle which contained clear fluid. That turned out to be a prohibited drug called Gamma Butyrolactone, commonly referred to as GBL. That resulted in the charge which I am sentencing Mr Kokla for of supplying a prohibited drug. In the backpack they also found a plastic container with some pink fluid in it. That was later found to contain 12 grams of the prohibited drug called 1,4-Butanediol.
They also found some syringes without needles and some empty plastic fish-shaped containers. The facts which were agreed between the prosecution and the defence and which were part of exhibit A said that this "type of container is commonly used to store street-deal sized amounts of GHB". Police then looked into the waist bag. They found a plastic container labelled Xanax that contained 38 tablets. They were later found to be the medication Xanax. That contains a proscribed restricted substance which is called Alprazolam.
That find resulted in a charge of possessing a proscribed restricted substance which is an offence against s 16(1) of the Poisons and Therapeutic Goods Act 1966. Mr Kokla has asked me to take that into account when I am sentencing him for the supply of the prohibited drug. I should have added that a container of 1,4-Butanediol also resulted in a charge of possessing a prohibited drug, an offence against s 10(1) of the Drug Misuse and Trafficking Act. In due course I will take those two matters into account when I am sentencing Mr Kokla for the supply of a prohibited drug.
HIS HONOUR: I will just depart from my remarks on sentence there, Mr Laird, Mr Hajje I have got a Form 1 which is unsigned which is attached to a copy of the indictment MFI 1. Do I have the original here somewhere?
LAIRD: It was attached to the indictment in the registry file on Friday.
HAJJE: If it's missing I can rectify.
HIS HONOUR: It is just where Mr Laird said it would be.
I will take those two matters into account, along with a number of other matters which I will refer to in the course of my reasons, and I sign a document to that effect.
Returning to the search of the waist bag, police found a blister packet labelled Ritalin containing five tablets. That find resulted in a charge of possessing a prescribed restricted substance, namely Ritalin which was also an offence against s 16(1) of the Poisons and Therapeutic Goods Act. In the waist bag police also found two loose white tablets. They were later analysed and found to be the prescribed restricted substance methylphenidate which is a component of Ritalin. That and the five tablets which I have just referred to were both made the subject of the same charge and I will take that charge into account when I am sentencing Mr Kokla on the supply of a prohibited drug.
Police continued their search and found a plastic resealable bag. It contained three capsules; they were later analysed and found to be a prohibited drug, 3, 4-methylenedioxymethamphetamine or MDA. In another part of the waist bag they found another resealable bag which contained six capsules which turned out to be the same substance which is referred to as MDA.
As a result of finding those nine tablets police charged Mr Kokla with the offence of possessing a prohibited drug which is one of the matters that I am sentencing him for. In another section of the waist bag police found a blister packet labelled Aurogra and six tablets. The facts note that Aurogra is more commonly known as Viagra. That resulted in a charge of possessing a prescribed restricted substance contrary to s 16(1) of the Poisons and Therapeutic Goods Act and I will take that into account when I am sentencing Mr Kokla for the offence of supplying a prohibited drug.
Continuing their search, police found 5 plastic resealable bags. Each bag contained a white coloured crystaline substance. These bags were later analysed. Two of the bags were found to contain just over a gram of Ketamine, a prohibited drug. Three of the bags were found to contain just under half a gram of methylamphetamine which is also a prohibited drug. Police charged Mr Kokla with possessing a prohibited drug in respect of the first two bags and possessing a prohibited drug in respect of the three bags. I will take those two offences into account when I am sentencing him for supplying a prohibited drug.
A further search of the waist bag produced a number of resealable plastic bags. Two of those each contained 100 beige coloured tablets with the logo X. These were later analysed and found to be a total of 42.54 grams of a prohibited drug. The prohibited drug is 4-bromo-2,5-dimethoxyphenethylamine commonly known as nexus or bromo. That resulted in the charge of supplying a commercial quantity of a prohibited drug which I am sentencing Mr Kokla for.
Continuing their search, police found two small glass bottles. Each had a clear fluid in it. Those were later analysed and found to contain 42 grams of another prohibited drug. This one was gamma butyrolactone, commonly know as GBL. That resulted in the charge of supplying a prohibited drug which I will be sentencing Mr Kokla for and in respect of which I will be taking the other matters into account which I have referred to.
The last item found was another plastic resealable bag containing a white crystaline substance which turned out on analysis to be just over 0.2 grams of yet another prohibited drug. This time is was 3,4-methylenedioxymethylamphetamine, more commonly known as MDMA or ecstasy. That resulted in a charge of possessing a prohibited drug contrary to s 10(1) of the Drug Misuse and Trafficking Act.
In addition police found a set of digital scales in the waist bag. Police estimated that the value of the GBL which resulted in the charge of supplying a prohibited drug would be $2,100 on the street and the value on the street of the drug commonly known as nexus or bromo would be $5,000.
I turn now to consider matters personal to Mr Kokla. As I said, he is 43. The very first matter on his criminal record did not appear until 2006. That was a low range breathalyser offence. Indeed he received a good behaviour bond under s 10 of the Crimes (Sentencing Procedure) Act 1999 and I do not take it into account. Then he was arrested on Christmas Day 2011 and charged with a series of drug offences. He was arrested apparently because he was driving and behaving suspiciously. As it turned out he was driving under the influence of drugs. Once he was arrested he was referred to what is called the Magistrates' Early Referral Into Treatment or MERIT program. He received a good report in respect of that program. That report became exhibit 2 and was dated 17 July 2012.
When Mr Kokla came before the Local Court sitting in the Downing Centre on 7 February this year charged with the offences arising out of that episode he received two community service orders and a couple of fines.
However it will be obvious, when one looks at the dates, that within three or four months of being arrested on Christmas Day 2011 he was arrested for the offences that I am sentencing him for. It therefore becomes apparent that he committed these offences while he was on bail and attempting to undertake the MERIT program. I also need to take into account the fact that he now has on his criminal record other drug offences, including one being a drug supply offence.
Mr A Williams of counsel who appeared for Mr Kokla tendered a report by the forensic psychologist Mr W John Taylor. Mr Taylor reported some personal information about Mr Kokla. He was apparently married when he was aged 23. He has a daughter and a son. The daughter is now around 19 or 20 and the son is in his mid-teens. There was an early separation but then they resumed the relationship but the marriage finally ended after about 9 years.
Mr Taylor noted a history of steady employment involving mechanical work and driving. It is apparent that Mr Kokla changed employment fairly regularly but stayed in some jobs for a number of years. He apparently began to smoke cannabis in his late teenage years. Then Mr Taylor records that at "the age of 35 years he began to take ecstasy about once every couple of weeks when he was going to clubs." Mr Taylor, who wrote his report on 9 August 2012, then noted that Mr Kokla "started to smoke 'ice' about 18 months ago. He said that this was only on an occasional basis initially but that it quickly built up to being a daily habit. He continued to smoke it daily for about 6 months until he was arrested." This seems to be the change in his drug taking behaviour which resulted in the predicament that he now finds himself in. He even found himself gambling excessively when he was taking the drug commonly known as Ice.
Mr Taylor diagnosed him with a drug abuse disorder with indications of some instability in his personality adjustment. He thought that some tests indicated that Mr Kokla "has an above-average predisposition to engage in substance abuse." Mr Taylor thought that actuarial analysis indicated that Mr Kokla "has a low-moderate to moderate to moderate risk of recidivism." Mr Taylor noted that Mr Kokla claimed to be motivated to remain drug free. Mr Taylor thought that his prospects for rehabilitation were quite good.
However, since then there has been another assessment by the Probation and Parole Service. They produced a pre-sentence report which was dated 27 March 2013. That indicated that Mr Kokla was still using prohibited drugs, including MDMA and MDA, during his time period of their assessment. They found that out because of drug screening which they are required to undertake. The report concluded as follows -
"The offender reported as directed however his resolve to cease his abuse of drugs appears to only have occurred as a result of the pending court matters. This is evidenced by urinalysis results. While results of the drug screens show a clear reduction in the offender's abuse of illicit substances, his commitment to reducing and eventually ceasing substance abuse is yet to be tested."
They regarded him as suitable for a low to medium level of intervention from that service.
I therefore have to discount Mr Taylor's assessment of Mr Kokla's likelihood of recovery and his rehabilitation because of his more recent continuing in the use of illicit drugs. He does indeed appear to be truly a drug addict who has not as yet dealt with his addiction.
There is a short report from a clinical psychologist noting that he had attended some sessions in early 2003. It contains no further comment. There is a letter from Mr Kokla acknowledging the seriousness of the crime and accepting full responsibility for his actions. He expressed his shame and remorse. There are some references from a friend and an employer or business partner and a parish priest which point to him being a caring and reliable person and a good employee and coming from a good family.
Mr D Laird, who appeared for the Director of Public Prosecutions, acknowledged that the possess a prohibited drug could be dealt with under s 10A of the Crimes (Sentencing Procedure) Act because of its relative status compared with the other far more serious offences. In due course I will do that. He also acknowledged that the sentence for the supplying of a prohibited drug could be concurrent with the sentence for the supplying of a commercial quantity of a prohibited drug. He reminded me that Mr Kokla had been on bail for other drug offences and I take that into account. It is a significant circumstance.
Mr Laird acknowledged that there are special circumstances for adjusting the normal relationship between a non-parole period and the main sentence. Mr Williams said that there was no evidence of actual supply. That is true to a limited extent in that Mr Kokla was not seen to pass on drugs to another person; but I note that his phone was ringing constantly, he had large amounts of prohibited drugs with him (which is why he has been charged with offences of deemed supply) and he had plastic bags as well as the fish shaped cylinders and a set of scales. I have no doubt that he was actually trading in drugs.
Mr Williams pointed out that the street value of $5000 in respect of the commercial quantity was a relatively low amount for commercial quantities. I think he has a point there. Profits, as he said, can be much higher from these enterprises. He pointed out that the purity at three per cent was relatively low. So Mr Williams argued that the commercial supply was towards the lower end of commercial supply cases and I accept that submission. He pointed out that the supply drug offence was closer to the indictable quantity and far from the commercial quantity and again towards the lower end with a relatively low street value of just $2000 and I accept that.
Mr Williams classified his client as a user/dealer at a low level, not in it for making money and it illustrated the extent of his addiction. Accepting that submission as I do, of course it does not reduce the culpability of his client for the activity he was engaged in; it simply explains his motivation.
I do take into account that his criminal record contained no other serious matters apart from the drug offences which he was convicted of earlier this year. I accept so far as profit is concerned that there was no evidence of unexplained wealth or real profit.
Mr Williams was realistic about his client's prospects of rehabilitation, acknowledging that he is still a drug addict but he does have his family supporting him. He pointed out, which is obvious, that his client has destroyed a good part of his life so far and the relationship with his children has obviously been badly affected. He would have a need for supervision when he is released. His client would be prepared to consider a residential rehabilitation program. Mr Williams suggested that I may take that into account, but, as Mr Laird correctly pointed out, that is not something that would be appropriate for me to take into account because his client has not yet undertaken such a program.
As for the commercial supply which carries a standard non-parole period, Mr Williams acknowledged the force of the fact that there was a standard non-parole period but reminded me that that was one of many factors that I take into account. He argued that his client's case was not within the middle of the range of objective seriousness. I accept that submission.
Taking all those matters into account. I would regard an overall appropriate sentence for the offence of supplying a commercial quantity of a prohibited drug as being of one of 5 years and 6 months imprisonment I would, because of Mr Kokla's plea of guilty, discount that sentence by 25 per cent and round off the sentence to one of 4 years imprisonment.
Normally a sentence of 4 years imprisonment should attract a non-parole period of 3 years imprisonment. I propose to adjust that downwards because of Mr Kokla's obvious need for supervision when he is released on parole in order to deal with his serious drug addiction and get himself re-established within the community. I propose to reduce the non-parole period to one of 2 years and 3 months. That sentence will date from 28 May 2013.
In respect of the offence of supplying a prohibited drug - and taking into account all of the matters which I am asked to take into account under s 32 of the Crimes (Sentencing Procedure) Act 1999 - I regard an appropriate sentence as being one of 18 months which I would set as a fixed term.
HIS HONOUR: Would you stand up Mr Kokla.
In respect of the offence of supplying not less than a commercial quantity of a prohibited drug I formally convict you of that crime. I set a non-parole period of 2 years and 3 months to commence 24 May 2013 [Sic. This should read 28 May. The formal orders are correct.] and to expire on 27 August 2015. The balance of the term is 1 year and 9 months to commence 28 August 2015 and to expire on 27 May 2017.
In respect of the offence of supplying a prohibited drug I formally convict you of that offence and I sentence you to 18 months imprisonment to commence 18 May 2013 and to expire on 27 November 2014. That is a fixed term.
In respect of the offence of possessing a prohibited drug, I formally convict you of that offence and under s 10A of the Crimes (Sentencing Procedure) Act 1999 I dispose of the proceedings without imposing any other penalty.
HIS HONOUR: Have a seat Mr Kokla. Mr Laird, Mr Hajje, the mathematics--
HAJJE: Sorry your Honour, that 18 months fixed term for the supply was to commence was it 18 May?
HIS HONOUR: No, 28 May. Did I say 18th?
HAJJE: I think you did.
The fixed term should commence 28 May 2013 and expire on 27 November 2014.
HIS HONOUR: So just check the figures gentlemen, make sure that they're right. It'll save having to come back.
HUTCHIE: Seems to be right, your Honour, thank you.
HIS HONOUR: And any other factual or legal matters that can be dealt with under s 43.
LAIRD: Pursuant to the Confiscation of Proceeds of Crime Act, I seek an order for the confiscation of the cash and two mobile phones.
HIS HONOUR: Referred to that. Show it to Mr Hajje.
HAJJE: No objection your Honour.
LAIRD: If your Honour signs all three and seals all three and keeps one on the Registry file, and returns the two other copies to us at the bar table.
By consent I make the orders contained in the short minutes of order signed and sealed by me and dated today.
HIS HONOUR: One copy for the Court file and two copies, one for each party.
LAIRD: Your Honour will recall there are two s 166 certificates. In relation to the s 166 certificate dated 24 October 2012, I withdraw sequence 18 if you want to so note that.
HIS HONOUR: What was that date?
LAIRD: 24 October 2012 if you want to dismiss as that. Sequence 18. That'll take into account all outstanding charges.
HIS HONOUR: So that can be dismissed.
LAIRD: Thank you, your Honour.
HIS HONOUR: That's number 18 is that right?
LAIRD: Yes, that's a backup charge to one of the counts that your Honour sentenced him.
HIS HONOUR: All right.
The offence referred to as sequence 18 on a certificate dated 24 October 2012 under s 166 of the Criminal Procedure Act 1986 signed on behalf of the Director of Public Prosecutions is dismissed under s 167 of the same Act.
LAIRD: But I seek the formal order that the drugs be destroyed.
I order that the drugs be destroyed under s 39P of the Drug Misuse and Trafficking Act.
LAIRD: Thank you, your Honour. That takes into account anything the Crown has.
HIS HONOUR: Any errors that I can--
LAIRD: No, thank you. The mathematics is correct.
Mr Kokla, you have got 4 years gaol for the commercial supply of all those tablets that you had, the commercial quantity. You have got 4 years gaol for that. As I said, normally you would have a non-parole period of 3 years for that, that you would have to spend in gaol. But I have reduced that at Mr Williams' request and Mr Laird agreed, because you need extra time when you get out into the community to deal with this drug addiction that you are still in the grip of. So I have reduced you to 2 years and 3 months, that is 27 months. And your sentence is backdated to last Tuesday because I have taken into account the time you spent in custody and the time over the weekend, this weekend. So you become eligible for parole on 27 August 2015. The Parole Authority considers your eligibility. If you make an application before then and if it regards you as eligible and suitable, it will release you on parole. Your sentence is still running for the balance of the 4 years and expires in the end on 27 May 2017. That is 4 years from last Tuesday. The ordinary supply so to speak, I have fixed 18 months and both Mr Williams and Mr Laird agreed that can run at the same time because it occurred at the same time. And the possession of the small amount of notes I have just noted a conviction. So it is up to you what you do with your life now. You are still a relatively young man and you have obviously faced these things before and it is now up to you.
HIS HONOUR: Anything else? No, all right. I'll now adjourn.
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Decision last updated: 24 October 2013
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