R v Hokai

[2023] NZHC 2113

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2021-088-002754

[2023] NZHC 2113

THE KING

v

JORDAN JAMES HOKAI

Hearing:	9 August 2023
Counsel:	AJ Goodwin for Crown S Thode for Defendant
Judgment:	9 August 2023

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Whangarei. S Thode, Auckland.

R v HOKAI [2023] NZHC 2113 [9 August 2023]

[1]I begin by acknowledging the presence of your mother and sister.

[2]                 Jordan Hokai, you are for sentence on three charges: two of importing the Class A controlled drug, methamphetamine;1 and one of participation in an organised criminal group.2 The maximum penalty for that charge is 10 years’ imprisonment. The maximum penalty for importing methamphetamine is life imprisonment. That is the most severe penalty under our law.

[3]                 Your charge arises because of a Police and Customs operation called Freya. The investigation began March 2020 and ended 12 November 2021. It was directed at an organised criminal group that imported, manufactured, and supplied controlled drugs throughout Northland. The group’s drug of choice was methamphetamine.  The group also dealt MDMA and pseudoephedrine,  Class  B  controlled  drugs.  You, Mr Hokai, were a member of that group.

[4]                 The summary of facts in relation to your offending is somewhat discursive, hence a little difficult to follow. I summarise what I understand to be the key aspects:

(a)You are a friend of, and close associate to, the leader of the group. Because he is yet to be tried, I refer to him this way rather than by name. The leader of the group is a member of the Head Hunters gang. You, apparently mixed with that gang.

(b)You, with others, were at the bottom of the hierarchy of the group. You gained enough money to post articles on social media showing expensive clothing, jewellery, and cars. However, you did not enjoy significant profit from the group’s drug dealing activities.

(c)You were a “gopher” for the group’s leader. You did jobs so he would not get his hands dirty. In so doing, you assisted the group’s activities, which, as I have said, involved the importation, manufacture, and supply of drugs in Northland.

1      Misuse of Drugs Act 1975, s 6(1)(a).

2      Crimes Act 1961, s 98A.

(d)On 27 August 2021, Customs intercepted a parcel containing

1.5 kilograms of methamphetamine. The parcel was addressed to “Jordan Hoki” at your home address. The drugs were hidden in a lawnmower and had come from South Africa.

(e)On  10  September  2021,  Customs  intercepted  a  second  package. It contained 462 grams of methamphetamine. The package was addressed to “Kody Hilton”, again at your home address. It had come from Malawi.

(f)Between 1 April and 3 November 2021, the group “undertook activity in support of a common aim to manufacture methamphetamine on several occasions”.3 You were a runner for the group. You liaised with the group’s leader. You also moved gear between defendants and homes.

(g)Between 27 September and 3 November 2021, the group acquired and supplied methamphetamine. You collected and moved methamphetamine at the direction of the group’s leader. You supplied methamphetamine to customers too. You also bought containers which were used to hold ounces of sold methamphetamine.

(h)On 5 October 2021, the group made methamphetamine. You were stopped driving a container of water to or from that operation.

(i)On 15 October 2021, you helped with “the rounds” in relation to the distribution of methamphetamine.

[5]                 Several of your co-offenders have been sentenced.4 Their sentences reflect their charges, what each did, and their personal circumstances. I make an important point. None of these defendants were sentenced on a charge of importing

3      Summary of facts.

4      R v Tali [2022] NZHC 2181; R v Hilton [2023] NZHC 808; R v Arama [2023] NZHC 953 and

R v Kerr [2023] NZHC 1176.

methamphetamine. Your sentence must reflect your charges, what you did, and your personal circumstances. This is obvious but should be said for this reason.

[6]                 You imported just under two kilograms of methamphetamine. The starting point for this amount typically lies between eight years’ imprisonment and 16 years’ imprisonment. The range reflects amount and role. The prosecution accepts you were at the bottom of the hierarchy, but notes you still played an important role. So, it says the starting point for your importation of methamphetamine is 10 years’ imprisonment. It says I should add six months for the organised criminal group charge.

[7]                 Mrs Thode says your global starting point should be six years’ imprisonment. Her written submissions offered lower figures, but Mrs  Thode  has  recalibrated. Mrs Thode offers the six-year figure on the basis that your assistance was unsophisticated, under the direction of others, and that you were at the bottom of the hierarchy. Mrs Thode also notes that the methamphetamine came to your home address.

[8]                 I am not persuaded there is a basis to adopt Mrs Thode’s starting point. While the law recognises the need to be flexible with starting points, it requires a good reason or reasons for adopting a starting point outside the typical range.5 I have done that in other cases because there was good reason to.6 I add that my written sentencing remarks will have footnotes and those footnotes will refer to cases. Your lawyer will have the benefit of those, and she may wish to discuss them with you.

[9]                 I return to your case. No good reason exists. There is no evidence, for example, you were acting under duress, that you were duped, or that you did not understand you were acting to help the importation of drugs on a commercial scale. Indeed, your ongoing participation in the organised criminal group shows your help with the importations was part of a broader pattern of conduct. The sentences imposed on the other offenders reflect their charges, culpability, and circumstances. Again, none of those cases involved a charge of importing methamphetamine, for which the penalty is life imprisonment. So, while you had a lesser role, that role was still

5      See, for example, Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [123].

6      R v Fangupo [2019] NZHC 2896.

important to the group, and as I have said, you engaged in a pattern of conduct in helping it.

[10]             Having said all that, I am not persuaded the starting point should be 10 years’ imprisonment.7 Your role was a lesser one; not more. I, therefore, adopt a starting point of eight years, which is at the bottom of the typical range for this quantity of drugs. I add: your case has some similarities to one called Singh.8 Mr Singh imported more methamphetamine but overall had a less significant role than you.

[11]             I do not add anything for the organised criminal group charge. This is because I have treated that charge and the facts relating to it as underscoring your involvement in the importation of methamphetamine. In that respect I have adopted Mrs Thode’s approach.

[12]             You have a criminal record that is not insignificant. However, you have not been convicted of drugs offending. The Crown does not seek an uplift. I make none.

[13]             I turn to things that make your offending less serious. You were charged in November 2021.  You  signalled a guilty plea 21 March 2023.   You  pleaded guilty   9 June 2023 following a plea arrangement. A charge of conspiring to supply methamphetamine and one of conspiring to make the same drug were withdrawn or are to be withdrawn.

[14]             There had been a difference of opinion about the deduction for your guilty plea. Mrs Thode had said this should be 22 percent, a figure apparently given to at least some of the co-offenders. But, she and the Crown now agree the deduction should be 15 percent.

[15]             The Supreme Court has made clear that the discount for a guilty plea turns on several factors including the strength of the prosecution case, whether the defendant

7      Pratap v R [2021] NZCA 308; Singh v R [2020] NZCA 211, Chai v R [2020] NZCA 202; and

Martin v R [2022] NZCA 285.

8      Singh v R, above n 7.

received a benefit from a plea arrangement, and the timing of the plea.9 I apply that framework.

[16]             The timing of your plea cannot be described as prompt, even acknowledging you foreshadowed a plea in March this year. Again, you were  charged  in  November 2021. You benefited from the plea arrangement too. I do not know much about the strength of the prosecution case beyond that it included intercepted conversations, including intercepted conversations that you made, meaning your conversations. For all of these reasons, I deduct 15 percent.

[17]             I add this observation, which may be relevant to others: if people receive unduly generous discounts for guilty pleas, that is not fair on those who plead guilty genuinely early, including when the strength of the Crown case may not yet be known. That approach also encourages people to plead guilty late, which is not in the interests of the justice, especially when the system is under strain.

[18]             I turn to your personal circumstances, based on a pre-sentence report and a cultural report. I summarise the latter this way. Your parents separated when you were very young because of family violence. At the age of five, you were placed into the care of relatives, then with what is now called Oranga Tamariki. You suffered abuse in that care. You were returned to your mother when you were eight. At 11, you began using alcohol and cannabis. You were introduced to members of the Head Hunters gang. You say you idolised them and treated them as role models—having had none. You became homeless and began using methamphetamine.

[19]             Your background is depressingly similar to many defendants before this court. It provides some explanation for your offending. I deduct 15 percent from the starting point in recognition of the likely causative contribution of your background and your recent rehabilitative efforts.10 I give no greater discount because your offending is serious—methamphetamine is destructive—and because your offending reflects choices—plural.

9      Hessel v R [2010] NZSC 135, [2011] 1 NZLR 607.

10     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.

[20]             I decline discount for your alleged remorse as the 15 percent discount I have just discussed includes your recent rehabilitative efforts and I am not persuaded anything sufficiently tangible or concrete emerges to warrant discrete discount for remorse.

[21]             Discount for time on electronically monitored bail would be contrary to principle as you were arrested after one month and one day having used methamphetamine.11

[22]             I have considered whether your culpability is further diminished by your use of methamphetamine; you say you were using a gram of methamphetamine each week when you committed the drugs offences. There is no telling evidence you had a significant drug habit. You have no drugs convictions beyond these ones. And, you do not have a history of dishonesty offences, which can be indicative of a drug habit. It might be said that is because the gang supplied you methamphetamine so there was no need to steal anything.

[23]             However, even assuming you were using methamphetamine in the way that you report, I am not persuaded this contributed to your offending in a meaningful way. My sense is that you were drawn to the gang because of your upbringing, and that contributed to your offending rather than your drug use. Your friendship with the group’s leader supports this analysis. Expressed another way, even assuming you were regularly using methamphetamine as you say, this presents as part of a mix rather than being a causative element or driver. To borrow the language of the law, there was no causative contribution.12

[24]             I restate my approach. I adopt a starting point of eight years’ imprisonment and deduct a total of 30 percent for your guilty pleas, background, and early rehabilitative efforts. This will produce a sentence of five years and seven months’ imprisonment.

[25]Mr Hokai please stand.

11     Release was 28 February 2022; arrest was 1 April 2022.

12     Berkland v R, above n 10 (emphasis added).

[26]             On the charges of importing methamphetamine, a Class A controlled drug, I sentence you to five years and seven months’ imprisonment. On the remaining charge I impose a term of four years’ imprisonment. Those sentences will run together, meaning your effective sentence is five years and seven months’ imprisonment.

[27]I believe you can do better.  I wish you well.  Stand down.

[28]I dismiss the other charges I referred to.

……………………………..

Downs J