R v Kingi

[2013] NZHC 2051

IN THE HIGH COURT OF NEW ZEALAND

WHANGAREI REGISTRY

CRI 2010-088-2612 [2013] NZHC 2051

THE QUEEN

v

IKE WELLINGTON KINGI

Hearing:                   13 August 2013

Counsel:                   C Gisler for Crown

A B Fairley for Mr Kingi

Judgment:                13 August 2013

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, Whangarei

Thomson Wilson, Whangarei

R v KINGI [2013] NZHC 2051 [13 August 2013]

1. Ike Wellington King, you appear for sentence today having pleaded guilty on the second day of your trial to one count of supplying methamphetamine, six of offering to supply methamphetamine and one of possessing the Class C controlled drug cannabis for the purpose of supply.

2. On the remaining charges the Crown offers no evidence. You are discharged on the following counts in the indictment: counts 1, 2, 22, 24, 38, 46, 76, 79, 80, 83, 85, 86, 88 and 89. Those discharges have the effect of acquittals on each of those charges.

3. The total amount of methamphetamine was 8gms. While the cannabis charge involved 103.4gms or 3.6 ounces.

4. The methamphetamine offending occurred between 23 January and 10 February 2010 and on both 10 and 20 April 2010. The cannabis was found in your possession on 12 May 2010.

5. A summary of relevant facts has been agreed for the purposes of sentencing. A short précis is all that is required for present purposes.

6. Your offending was detected during a covert electronic surveillance police operation known as Operation Arabia. You were identified from text messages as a person involved in commercial dealing. You and others who were involved in this enterprise were either members of or had strong links to the Head Hunters motorcycle gang.

7. Your pleas relate to three distinct transactions. They are set out in the agreed summary. It is sufficient to record that between 28 January 2010 and 9 February 2010, from text messaging it is clear that you offered to supply quantities of methamphetamine. On 10 April 2010, you supplied two grams of methamphetamine to a co-offender, Ms Clunie. On 19 April 2010, you offered to supply a further one gram of methamphetamine to other people. The cannabis was found in your possession when a search warrant was executed on termination of the operation on 12 May 2010.

1. You have managed to amass some 17 previous convictions, though only one of those was drug related. The remaining ones involved a mixture of burglary, violence. They were at the lower end of criminal offending. You were not seen, originally, as showing any willingness to address the reasons for your offending. The author of the original pre-sentence report recorded that you showed little insight and no remorse for it. The reporter assessed you as being at moderate risk of reoffending.

2. Among the factors that influenced Judges in sentencing co-offenders, was the fact that methamphetamine is a powerful and extremely destructive drug. Over the last 10 years or so it has caused enormous pain and suffering to many in our community and has been responsible for many other criminal activities.

3. Another important principle is the need for consistency in sentencing. That has two aspects in this case. One is that I must ensure your sentence is in line with other sentencing for like offending. The other is that there must be a degree of parity between sentences imposed on others who were convicted of similar offences arising out of Operation Arabia.

4. The main sentencing guideline decision for charges involving the supply of methamphetamine suggest a starting point of between two to four years imprisonment for quantities up to five grams.[1] While offering does not necessarily attract the same penalty, the quantities involved need to be brought to account in determining the appropriate starting point. Cannabis offending is governed by a separate guideline decision. The amount of cannabis was indicative of small scale dealing so the starting point would be in the range of two to four years.

   [1] R v Fatu [2006] 2 NZLR 72 (CA) at para [34].

5. I choose a starting point of three years to represent the totality of the offending. That seems to equate to the starting points taken for other similar offending arising out of the same operation. I add three months to reflect your prior criminal history as a personal aggravating factor.

1. In submissions today Mr Fairley has asked me to take into account your post-offence efforts at rehabilitation. That is something of which I will speak shortly.

2. The Crown seeks imprisonment saying that anything short of that would not meet appropriate sentencing goals. The Crown also seeks forfeiture of cash totalling $22,190 found at your home on 12 May 2010. That is not opposed and I make a forfeiture order.

3. I now turn to the mitigating factors. This is the area I consider most important in relation to this sentencing.

4. I think I should acknowledge at the outset the role of your partner in helping you with those rehabilitative efforts. I also acknowledge, however, your own efforts at dealing with the problems that you faced and I think you acknowledge now that they were many and that you needed to work hard to achieve the goals you did. I take into account the statement that you read to me earlier.

5. When you first came before me for sentence on 9 October last year, you indicated a willingness to attend a rehabilitation course. While I agreed to bail you to do so I must admit at the time I was somewhat sceptical but thought that you deserved the opportunity to do so. My scepticism was not deserved. You have made great inroads into dealing with your problems and I commend you for that.

6. You have achieved well at your programme. I have to say it gives Judges great pleasure to see someone take an opportunity to address drug and alcohol related problems when given an opportunity to do so. It is a risk that we are wary of taking, particularly with those who have been involved in serious criminal offending. When our judgment proves right and the person emerges at the other end a much better person, that is very satisfying.

7. Your progress is best summarised in reports I have had made available to me. Let me read two extracts. I refer first to the updated pre-sentence report. The report writer says:

Mr Kingi has self referred to the Te Hurihanga Residential Rehabilitation Facility in Ohaewai. His progress has been so impressive that the staff have brought forward a proposal for residents who are well advanced in their treatment spending weekends at home. The manager of the facility, Ms Segina Te Ahuahu reports that he has been respectful and responsible and has passed all his drug tests. He has been challenged regarding his commitment to his family and to leaving gang life behind. His family have all attended whanau hui and are supportive. He has also received counselling for residual anger arising from his dysfunctional childhood. His motivation to address his issues is assessed as high. His ability to comply is assessed as high as he has completed most of his sentences without issue.

1. In a separate report that I received today from Ms Te Ahuahu, the following comments are made:

   Ike has found aspects of the programme challenging. He has had to face several unpleasant truths about the detrimental impact of his prior behaviour on his relationship with his partner and children. While he has made positive changes over the time he has remained engaged with our service, further changes are needed. Ike and his partner will need ongoing support with relationship counselling to assist them to enhance their communication style. Ike has had a history of controlling behaviour and needs to remain vigilant about dealing with unhelpful behaviours. Ike also needs to work on honesty and being forthright with his intentions towards others. There have been a number of occasions when others interacting with Ike have misinterpreted his behaviour and attributed a different meaning to events.

   Overall, Ike has made significant progress towards addressing his drug use. He has been abstinent long term and has made changes to enhance his chances to maintain abstinence. Ike is aware that he will need to demonstrate change and is actively engaged in planning a pro-social lifestyle free of drug and alcohol use. If Ike remains fully engaged in treatment, I believe the prognosis for him and his family will be positive and that he will be able to maintain the gains achieved while in the residential program. ...

2. Those reports demonstrate that you have made significant efforts to better yourself but that there is still some work to be done and you need to realise that that work remains to be done.

3. I also accept that you now have genuine remorse for your offending and that you have insight into it.

4. I have chosen a starting point for sentence of three years three months. You deserve a significant credit for rehabilitative efforts. In another case I heard in Whangarei last year,[2] in not dissimilar circumstances, I allowed a credit of 40% to

reflect both rehabilitative efforts and remorse. The factors I took into account in that case are very similar to those in yours. In particular, I made the following comments:[3]

(a)It is in the interests of society as a whole that someone recognise and address societal problems that have caused him or her to commit serious offences against the community. ...

(b)There are benefits to society as a whole in acting to break the cycle of violence and anti-social behaviour caused by gang involvement. ....

(c)You have shown courage to reject your gang associates and to address your problems. ...

(d)To reflect efforts of that type it is necessary to provide a substantial amount of credit. Others need an incentive to step away from the gang situation and to address their problems. It is in the interests of society that incentives be given for others to do the same thing. ...

(e)Your personal efforts require public acknowledgement. You have done well. ....

[2] R v Hereora [2012] NZHC 3422.

[3] Ibid, para [26](a)–(e).

1. I intend to give a credit of 40% for those factors. That brings the sentence down to two years from which I deduct a further 10% to reflect your late plea of guilty. That means the end sentence would be one of one year 10 months imprisonment.

2. I now turn to home detention. In my view it is not in the interests of society for you to go to jail. You have already served three months on remand. In my view a sentence of 12 months home detention, coupled with 200 hours community work will adequately mark the offending in the very unusual circumstances of this case.

3. In relation to home detention you will also need to have programmes undertaken while you are serving that sentence:

   (a)You will serve your sentence of home detention at 2A Denby Crescent, Tikipunga, Whangarei.

(b)After sentencing and receipt of your order you shall proceed immediately to the detention address and await the arrival of a probation officer and a security guard.

(c)You shall refrain from possessing or consuming alcohol or illicit drugs for the duration of your sentence.

(d)You shall undertake and complete any further counselling for drug abuse or anger management as directed by a probation officer. The nature of the counselling shall be determined by the probation officer.

(e)You shall be assessed for and if assessed as suitable, undertake and complete any other programme directed by a probation officer, including counselling programmes or training.

The terms relating to undergoing counselling or programmes will apply for a period of six months after conclusion of your sentence.

1. On each charge you are sentenced to a term of 12 months home detention and 200 hours community work. Those sentences are imposed concurrently so that the period of 12 months home detention and 200 hours community work is what will be served.

2. Mr Kingi, congratulations on what you have done. I wish you and your partner well for the future. I hope that you can keep this up.

3. Stand down.

P R Heath J