R v Hikaka

[2013] NZHC 2014

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2011-043-2338 [2013] NZHC 2014

THE QUEEN

v

DALLAS FRANCIS HIKAKA

Hearing:                   9 August 2013

Counsel:                  C E Clarke for Crown

S W Hughes QC for Prisoner

Sentence:                 9 August 2013

SENTENCING NOTES OF THE HON JUSTICE KÓS

[1]      Mr Hikaka you have been convicted by a jury of the following offences: (a)  participation in an organised criminal group;1 and

(b)       conspiracy to supply cannabis.2

[2]      So that you too know where you stand, I am telling you that you will not be going to prison. You will instead serve a sentence of nine months’ home detention.

[3]      These sentencing remarks are to be read in conjunction with those of your co- offenders Jade James and Garry Dewar.3   I have just sentenced Mr Dewar to twelve months’ home detention.  Much of what I said to him applies equally to you, and I

will try to avoid unnecessary repetition.

1      Crimes Act 1961, s 98A.

2      Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2A)(c).

3      R v Dewar [2013] NZHC 2010.

R v HIKAKA [2013] NZHC 2014 [9 August 2013]

Facts

[4]      You are 43 years old.  The charges against you arose out of Operation Puff, a drug offending operation which I have just described in sentencing Mr James and Mr Dewar.

[5]      You were the Vice President of the Rebels motorcycle gang in Taranaki.   I have commented already that this gang was a small start-up branch of a wider organisation.  I do not diminish the seriousness of drug-dealing as a crime.  But as I have already said, the drug-dealing activities of this group centred around the gang’s Sergeant at Arms, Mr Nathan Couper, who has been sentenced by this Court to a sentence of five years and five months’ imprisonment.  It was a “wheel and spoke” conspiracy, with Mr Couper at the hub.   Mr Couper’s talents did not lie in covert criminal activity.   Detection was inevitable.   Things had barely got going when detection occurred.

Participation in an organised criminal group

[6]      You admitted that you had dealt the Class C drug BZP to Mr Couper and another co-accused, Mr Green.  You knew that Mr Couper was involved in sourcing and  selling  drugs.    You  handled  some  proceeds  of  the  dealing.    You  assisted Mr Couper to grow and supply cannabis.

[7]      The verdicts of the jury suggest that it saw your participation in the organised criminal group as confined to cannabis and BZP.   I discharged you on a count of cultivating  cannabis.    The  jury  convicted  you  of  conspiring  to  sell  cannabis cultivated by others.  I discharged you on the charge of conspiring to supply cocaine, as I did Mr Dewar, being satisfied that you could not safely be convicted of that charge.   The jury acquitted you on the most serious charge, conspiracy to supply methamphetamine.  It could not agree on the further charge of conspiracy to supply Class C varieties of ecstasy.  This morning the Crown offered no further evidence on that charge and it has been dismissed.   In these circumstances it is proper that I regard the relevant scope of the organised criminal gang, so far as  you were a member of it, as organised only in relation to the sale of cannabis and BZP.  That

gives rise to a substantial degree of overlap with the next charge, conspiracy to supply cannabis.

Conspiracy to sell cannabis

[8]      You admit to having supplied an ounce of cannabis to Mr Couper.   You arranged to assist Mr Couper in getting the grow-house up and running by organising Mr Dewar to hook up the power, and supplying timber and light bulbs.4   You knew enough about the operation to comment on how vigorously the plants were growing. You also commented on how light-secure the grow room was.  You knew the end product would be sold by Mr Couper.

Purposes and principles of sentencing

[9]      I must, Mr Hikaka, take into account the various purposes and principles set out in ss 7 and 8 of the Sentencing Act 2002.   I have described those principles already in sentencing your co-offenders Mr James5 and Mr Dewar.6   You have heard what I said to him.  That applies equally to you.  I will not repeat myself at this point again.

Lead offence

[10]     The lead  charge  for sentencing  purposes  is  participation  in  an  organised criminal group.

[11]     I intend to sentence you here in a manner that is consistent with you co- offenders.  In doing so I consider your culpability is significantly less than that of Mr Couper (the organisation hub, three years)7 and less than that of Mr Dewar (two

years, two months) and about the same as Mr James (two years).8

4      See my observation in R v Couper [2013] NZHC 1472 at [48]-[57].

5      R v James [2013] NZHC 2006.

6      R v Dewar [2013] NZHC 2010.

7      R v Couper [2013] NZHC 1576.

8      R v James [2013] NZHC 2006.

[12]     I therefore adopt a starting point of two years’ imprisonment on this charge.

That is two months less than I started with Mr Dewar on.

Other offending

[13]     In terms of the other offending, Ms Hughes submits that the R v Terewi9 bands do not apply because your involvement was limited to a one-off occasion of supply.   I disagree, for two reasons.   First, the Court of Appeal has held that for sentencing purposes, no distinction should be drawn between supply and cultivation, the R v Terewi guidelines apply to them both.10    Second, your involvement in the cannabis conspiracy was not limited to a single sale of one ounce.  You were also involved in setting up the grow-house with Mr Couper which contemplated both cultivation and supply.

[14]     Your cannabis offending falls to be dealt with at the bottom end of band 2 in Terewi,11 subject to a modest discount reflecting conspiracy rather than actual supply. A sentence of one year and nine months’ imprisonment would be appropriate, subject to adjustment for your personal circumstances.  That is the same as for Mr Dewar, and for the same reasons.12

[15]     Given the conspiracy to sell cannabis substantially overlaps with the charge of participation in an organised criminal group whose common purpose was to sell cannabis, the lead charge adequately reflects the totality of the offending.  Including the fact that it was conducted on behalf of that group.   I do not propose to uplift therefore for the second charge.

Totality

[16]     I am satisfied from the point of view of totality that that does not produce an outcome disproportionate to the gravity of your offending taken as a whole.

9      R v Terewi [1999] 3 NZLR 62.

10     R v Gray [2008] NZCA 224 at [12].

11     R v Terewi [1999] 3 NZLR 62 at [4].

Aggravating and mitigating features of offender

[17]     I turn now to aggravating and mitigating features applying to you.

Aggravating features

[18]     Consistent with your other co-offenders, I do not apply specific uplift for the aggravating factor of gang involvement.   That  has already been taken that into account in setting starting points.

Mitigating features

[19]     There are number of mitigating factors that fall in your favour.

[20]     You  have  minor  traffic  convictions,  none  of  which  are  relevant  to  the offending you are to be sentenced for today.  I am prepared, therefore, to make an allowance for your otherwise good character.   I am effectively treating you as a person without convictions.

[21]     You also have taken some concrete steps towards rehabilitation.  You have referred yourself to alcohol and drug counselling and you continue to attend that. You no longer use drugs and you limit your alcohol consumption.  You were a well respected psychiatric nurse.  You have changed careers and retrained as a driver at a trucking firm.  Your employer has commented positively on your honesty, your hard work and your aptitude.  You have strong support from your wife, your children and your extended whanau. You are assessed as being at low risk of re-offending, having accepted responsibility for your offending.

[22]     In light of these factors, I am prepared to extend a discount of 20 per cent to recognise your previous good character and clear intent to rehabilitate.

[23]     That brings you to a sentence of one year, seven months’ imprisonment.

[24]     Because  that  sentence  is  a  short-term  one,  you  are  eligible  for  home detention13.   I am satisfied that the purposes of sentencing, which include denunciation and deterrence, can here be met by a sentence of home detention.14    I repeat here what I said, in your presence, in the case of your co-offender Mr Dewar about the rehabilitative benefits of this sort of sentence for offender and society alike.15

[25]     I also repeat my observation to you Mr Hikaka, that home detention is not a soft option.  It is not so long ago that the Court had an application for someone on home detention asking to be sent back to prison because they actually couldn’t endure having to sit around at home all day.  So it is no soft option.  I am going to ameliorate that in your case because I am going to enable you continue employment. I am doing that because that is the single thing that is most likely to secure your rehabilitation effectively rather than depriving you of that liberty.   But the rest of your liberties are denied you apart of course from the comfort and company of your family. That too for rehabilitative purposes.

[26]     I remind you, too, that breach of conditions is likely to result in revocation of the sentence in which case you will serve the balance of your indicated term of imprisonment in prison.

[27]     As I said to Mr Dewar, the term of home detention is approximately half the equivalent prison sentence.  That is because there is a release entitlement after one half of a short term prison sentence has been served.  A sentence of home detention must be served in full.

[28]     Your residence in New Plymouth has been assessed as suitable and that your wife, the probation service tells me, understands the conditions to be imposed, consents to them, and has been informed that she may withdraw her consent at any

time.   I note that you also consent to the conditions suggested by the probation

13     Sentencing Act 2002, s 15A.

14     R v Iosefa [2008] NZCA 453 at [41].

officer and also those previously indicated by me as applying in addition to the probation report.

Sentence

[29]     Stand please.

[30]     Mr Hikaka, I sentence you to nine months’ home detention.

[31]     That sentence is to be managed in a way that enables you to continue in employment if at all possible.

[32]     The following conditions are to apply:

(a)      You  are  to  travel  directly  to  the  address  prescribed  in  your  pre- sentence report.   There you are to await the arrival of a probation officer and security officer.

(b)      You are to reside at that address for the duration of your sentence.

That is subject to any exceptions approved in writing by a probation officer, and to the following condition (c).

(c)      Those monitoring your sentence are to permit you to be absent for such time as is essential to enable you to maintain your present employment, or any other employment approved by a probation officer.  Such absences from the detention address are strictly limited to travelling directly to and from your workplace, and driving in the course of your employment, unless an exception under condition (b) applies.

(d)You are to be subject to electronic monitoring to ensure compliance on such conditions as are determined by a probation officer.

(e)      You are not to purchase, possess or consume alcohol or illicit drugs for the duration of the sentence.

(f)      You are to submit to such drug tests as are required by your probation officer.

(g)You are to undertake an alcohol and drug assessment, and complete any recommended counselling or treatment for abuse of alcohol and other drugs, to the satisfaction of a probation officer and programme provider.

(h)You are to present yourself at the door of the detention address when called upon to do so by any probation or police officer visiting the address.

(i)       You are not to have any contact with your co-offenders.

[33]     Standard post-release conditions will apply for a period of six months only.16

[34]     Mr Hikaka, this sentence recognises that there is plainly more good than bad in you, and there is no point my changing that balance by sending you to prison.  It recognises that it is better ultimately for society that you lose your liberties, apart from the right to work and remain with your family for a short sharp term.   The criminal Courts have not seen you before.  We do not expect to see you again.  Good luck, and good morning.

[35]     Stand down.

Stephen Kós J

Solicitors:

Crown Solicitor, New Plymouth

16     Sentencing Act 2002, s 80N(2)(a).