R v Koinaki
[2024] NZHC 1559
•13 June 2024
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2023-070-152
[2024] NZHC 1559
THE KING v
KUPA KOINAKI
Hearing: 13 June 2024 Appearances:
R W Jensen for Crown by VMR N A Pointer for Defendant
Judgment:
13 June 2024
SENTENCING REMARKS OF WILKINSON-SMITH J
Solicitors:
Pollett Legal Limited, Office of the Crown Solicitor, Tauranga Public Defence Service, Tauranga
R v KOINAKI [2024] NZHC 1559 [13 June 2024]
Introduction
[1] Mr Koinaki, on 23 April 2024 you pleaded guilty to charges of conspiracy to possess a Class A controlled drug (cocaine) for supply,1 and driving whilst disqualified.2
[2] When you pleaded guilty you accepted a sentence indication which I gave on 22 April 2024.3 I will attach my sentence indication to the sentencing notes as the indication forms part of them.
[3] My indication was a sentence of eight years’ and two months’ imprisonment with a 25 per cent discount for guilty plea. I also indicated that the sentence might be further reduced to take into account the time you had spent on electronically monitored (EM) bail, and personal mitigating factors.
[4]I will address those two matters in my sentencing today.
Offending
[5] I will briefly outline the agreed facts, as relevant to you. You will be very familiar with those facts, but it is important they form part of the public record of the sentencing today.
[6] You became involved in a conspiracy to import cocaine into New Zealand via a bulk carrier ship “MV Quest” (the Quest). Your involvement was said to be at the lower end of the hierarchy of control and organisation but was nevertheless fundamental to the success of the operation. The Crown accepted that you did not have actual knowledge of the exact drug or quantity involved in the offending and you should be sentenced on the basis that you were reckless as to those factors.
1 Misuse of Drugs Act 1975, s 6(2A)(a). Maximum penalty: 14 years’ imprisonment.
2 Land Transport Act 1998, s 32(1)(a) and (4). Maximum penalty: two years' imprisonment or a fine not exceeding $6,000.
3 R v Koinaki HC Tauranga CRI-2023-070-152, 22 April 2024.
[7] Your involvement in this offending arose due to your familial connection with the individual the Crown has identified as the lead offender, who is a family member of yours.
[8] On 22 December 2022, the Quest entered New Zealand shores near Tauranga carrying 120 kilograms of cocaine concealed in four packages within the sea chest of the vessel. The plan was that two of your co‑defendants would use diving equipment to retrieve the cocaine from the sea chest. You were to assist this retrieval team in your boat.
[9] On 3 January 2022, the Quest was given a berth in the Port of Tauranga to unload goods on board. Police were aware of the planned importation and were monitoring the movements and communications of yourself and your co-defendants. Police observed several reconnaissance trips in the Tauranga area and communications on the encrypted messaging application “Signal” between your co-defendants and overseas accomplices. You were not involved in any of that communication. A motor vehicle, boat and a variety of dive equipment was purchased for the retrieval.
[10] On 8 January 2023, you towed a small aluminium boat from Auckland to Tauranga. When in Tauranga, you and some of your co-defendants met with a member of the retrieval team.
[11] On 11 January 2023, you and your co-defendants observed the Quest in the harbour. Unbeknownst to you and your co-defendants, police had retrieved the cocaine from the Quest’s sea chest that day.
[12] Later that evening, you met with your co-defendants to confirm arrangements for the evening before you launched your boat from Sulphur Point at 8.15 pm. Whilst you remained on the water in the vicinity of the Quest, the retrieval team was apprehended by police. You were arrested several hours later on your return to the Sulphur Point boat ramp. At the time of your arrest, you told police that you were practising to be a boat captain and were practising using your boat at night to get your night skipper’s license.
[13] At the time of your offending, you drove from Auckland to Tauranga; and around Tauranga despite being a disqualified driver.
Principles and purposes of sentencing
[14] In sentencing you, I must have regard to the purposes and principles of sentencing.
[15]Those that I consider particularly relevant in your case are:
(a)Accountability for the harm done to the community — the availability of such a large amount of cocaine in the community would inevitably cause harm, and I think that you have seen the harm that drugs do.
(b)To promote in you a sense of responsibility.
(c)Denunciation — the sentence must serve to condemn this behaviour.
(d)Deterrence — that is not only deterring you from behaving in this way in the future, but the sentence must deter others who might think about offending in this way. Dealing in drugs is sometimes seen as a victimless crime with large financial reward. In fact, it causes huge harm and creates victims. There must be a deterrent element to the sentence.
(e)To assist with your rehabilitation — this is important as a means to not only improve your personal circumstances going forward but to reduce the risk of re-offending.
[16] I must take into account your personal, whānau, community and cultural background in imposing sentence.
[17] I must impose the least restrictive sentence that is appropriate in the circumstances.
[18] Many of these principles and purposes were taken into account when I provided the sentence indication. But I now have the benefit of a Provision of Advice to Court report (PAC report) and a s 27 cultural report.
Sentence indication
[19] In my sentence indication, I found that there were several aggravating factors to your offending. I found that the offending involved significant levels of cocaine and that the conspiracy was well-advanced.4 However, I noted that your role in the offending was less than that of your co-defendants.5 I considered a starting point of seven years and six months’ imprisonment was appropriate.6
[20] From that starting point, I considered that an uplift of six months was warranted to reflect your continued disregard for your disqualification from driving; and that a further uplift of two months was warranted to reflect that you were serving a sentence of supervision at the time of your offending.7 I further noted that a 25 per cent credit for guilty plea would be available.8
[21] This resulted in the indication of eight years’ and two months’ imprisonment as an overall starting point from which would be deducted 25 per cent for guilty plea.9
[22] I now turn to consider the matters that might lead to further adjustments from the indicated sentence.
Allowance for personal mitigating factors
[23] I have reviewed the pre-sentence report. It describes your significant criminal history with the report writer suggesting that your risk of re-offending is high and noting that your current offending is a continuation and escalation of your previous offending.
4 At [22]–[23].
5 At [25].
6 At [36].
7 At [37]–[38].
8 At [39].
9 At [42].
[24] You disclosed to the report writer that you had suffered prolonged psychological and physical abuse. [REDACTED]. You attribute your anti-social behaviour whilst in foster houses and boys’ homes to this abuse.
[25] The report writer considers your expression of remorse for your offending as ambiguous. On one hand, you apologised for your offending and bad decision making but said that you felt you had to plead guilty to “go with” your co-offender. The report notes your reflection that your offending is a result of a “you abuse me, I abuse you” attitude. You advised the report writer that you think you were born with fetal alcohol syndrome and suffer from ADHD. There is no evidence though that you have been formally diagnosed.
[26] The report notes that you were identified as a senior patched member of the Mongrel Mob as recently as 2020, despite your statement that you are no longer a gang member as you retired ten to eleven years ago. You have a historical relationship with drugs, having used cannabis, cocaine, methamphetamine, inhalants and hallucinogens. The report suggests this relationship is not entirely over as your EM bail to the Grace Foundation was cancelled upon you failing a drug test for cannabis. A substance screening assessment considered that drug use was an overall contributing factor to your offending. There was also evidence of cocaine use.
[27] The report notes that you will be eligible to attend a rehabilitation programme focused on assisting individuals to alter the attitudes and behaviours leading to offending and providing strategies for maintaining positive changes. You have previously attended similar courses.
[28] You acknowledge the support you have from your whānau and I acknowledge that your sister is present in Court today. Your counsellor also supports you as does a Whānau Ora support service. You say that you are at a point in your life where you are willing to accept the support provided to you.
[29] The s 27 cultural report reiterates the issues of abuse and possible fetal alcohol syndrome but notes there has been no formal diagnosis. You describe your childhood as straight out of “Once Were Warriors”. Your father was a gang member and you
describe serious violence by him towards your mother, yourself, and your siblings. You struggled with formal schooling and at a very early age began leaving home to live on the streets. You began using alcohol and huffing petrol and glue.
[30] You were placed in boys’ homes and with foster parents. You describe ongoing abuse while in care. From the age of 15 you were taught by an uncle to grow and deal cannabis. You began to associate with what you describe as “hard core drug users and gang members”. You have lived most of your adult life in a cycle of drug and alcohol abuse, criminal activity, gang involvement and imprisonment.
[31] You have little pro-social support and have a fractured relationship with your whānau. You describe serious abuse by a family member.
[32] You describe being strapped at school for speaking te reo Māori and racist abuse and bullying from other children.
[33] You describe continuing the cycle of violence as an offender, beating your partners. You have been sentenced to imprisonment for violence in the past.
[34] Your sister was spoken to and confirmed your account of the violence you witnessed and experienced as a child.
[35] The s 27 report writer identifies the following factors as potentially causative of your offending:
(a)potential fetal alcohol disorder syndrome;
(b)early exposure to and normalisation of family violence;
(c)early exposure to and normalisation of alcohol and drug use;
(d)early use of alcohol and drugs;
(e)early exposure to gang life;
(f)time in state care; and
(g)childhood abuse.
[36] Your counsel seeks an allowance of 25 to 30 per cent to reflect the factors outlined in the cultural report.
[37]She also seeks a discrete allowance of five per cent for remorse.
[38] The Crown agrees that the s 27 cultural report identifies factors that have some causative link to your offending. The Crown submits that a credit of 15 to 20 per cent should apply.
[39] The Crown also accepts that a discrete five percent credit should be applied for your letter of remorse and efforts to rehabilitate.
[40] I find that an allowance for cultural factors and background is warranted. Your choices in life were limited by the abuse, drug offending and violence you witnessed and were subject to.
[41] But you are now a mature man and you have been in and out of the prison system for years. You have had opportunities for rehabilitation, and you have not taken them. I accept that your ability to accept help is reduced by your history of abuse.
[42] In terms of actual causative nexus, I think when you say, “you abuse me, I abuse you” you are expressing a feeling of being on the outside of society with little obligation to society. I hope you realise that the time for that is coming to an end. As I said you are a mature man, and you have more to offer than that.
[43] I fix the allowance for cultural factors at 20 per cent. While your offending was a reflection of the normalisation of drug use and dealing in your life from a young age, it was not apparently addiction driven. I find it was most likely commercially driven with you expecting to receive either money or drugs. Your statements that you did not know drugs were involved is completely unbelievable. You towed a boat from
Auckland to facilitate the offending, and you were located in the sea awaiting delivery of an item. It is simply inconceivable that you did not know that drugs were involved, although I accept that you are to be sentenced on the basis that you did not know the exact drug or quantity. That has been factored into the starting point.
[44] You are assessed as having a high risk of reoffending and the allowance for cultural and family matters must not lead to a sentence that is inadequate to reflect the other principles of sentencing such as denunciation and deterrence. This was serious Class A drug offending involving a large amount of cocaine.
[45] So far as remorse is concerned, the PAC report describes your expressions of remorse as ambiguous. You state that you are remorseful and you apologise for the offending, but you minimise the offending saying that you were just asked to give a friend a hand.
[46] I find that you do express remorse, certainly in your demeanour, both at the sentence indication and today. The Crown acknowledges a small discount of five per cent is appropriate and I agree.
Allowance for time on EM bail
[47] You were on EM bail for six months10 but you were exited from the EM bail rehabilitation facility for drug use.
[48] Given your history and addiction issues, it is unsurprising that you did not manage to remain drug free. Nevertheless, it affects the credit I can give you for time on EM bail. I will however allow a credit of two months for the period spent on EM bail.
End sentence
[49] From the overall start point of eight years and two months, I reduce that to eight years for the period on EM bail.
10 Sentencing Act 2002, s 9(2)(h) and (3A).
[50] I then give credit of 50 per cent being the combined credit for guilty plea, cultural report factors and remorse. That takes me to a sentence of four years’ imprisonment.
[51] Sentencing is not a purely mathematical exercise. I must stand back and assess whether the end sentence meets the identified purposes and principles of sentencing. It must not be either manifestly excessive or manifestly inadequate and it must be the least restrictive sentence appropriate in the circumstances.
[52]I find that the sentence of four years’ imprisonment meets these criteria.
[53] On the charge of driving while disqualified, I had intended to disqualify you from the date of release from prison, but I have taken into account what your counsel has said about that fact that you have spent a long time on EM bail unable to drive. I hope that when you come out of prison you will be at a point in your life where you are ready to rehabilitate, and not being able to drive may impede that.
[54] I am also hopeful that this cycle of driving while disqualified and then being subject to further disqualifications can be broken. That in the end will be up to you.
[55] I fix the term though at one year to reflect that this is repeated offending of this nature and if you are disqualified again, the next judge will see that you were disqualified for one year this time and will likely disqualify you for at least that or more.
[56]You have asked that fines be remitted. The amount of the outstanding fines is
$8,861.
[57] The Crown and your counsel both suggest that if the fines are remitted, a further two months’ imprisonment should apply.
[58] I indicated that I was willing to remit the fines, and I agree that a further two months’ imprisonment should be imposed upon remittance of those fines.
[59] For administrative reasons, that has to be expressed as an uplift to the sentence, but it is not an uplift that should be applied prior to the credits. It is intended to have the effect of a two-month cumulative sentence.
Result
[60]Mr Koinaki, would you please stand.
[61] On the charge of conspiracy to possess a Class A controlled drug for supply, you are sentenced to four years’ imprisonment.
[62] On the charge of driving while disqualified, you are disqualified from driving from today for one year.
[63] I remit your outstanding fines and I uplift the end sentence by two months so the sentence you will serve will be four years’ and two months’ imprisonment.
[64] The Crown withdraws the charge of participating in an organised criminal group and on that charge, you are discharged.
[65]Stand down.
Wilkinson-Smith J
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS
PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2023-070-152
THE KING v
KUPA KOINAKI
Hearing: 22 April 2024 Appearances:
D P Coulson for Crown
N A Pointer for Defendant
Sentence Indication:
22 April 2024
SENTENCE INDICATION OF WILKINSON-SMITH J
Solicitors/Counsel:
D P Coulson, Pollett Legal Limited, Office of the Crown Solicitor, Tauranga ([email protected]) N A Pointer, Public Defence Service, Tauranga ([email protected])
[1] Mr Koinaki faces one charge of conspiracy to possess a Class A controlled drug (cocaine) for supply,1 one charge of participation in an organised criminal group,2 and one charge of driving while disqualified.3 He seeks a sentence indication on the charge of conspiracy to possess cocaine and the driving charge.4
[2] Mr Koinaki first appeared on these charges on 12 January 2023 in the Tauranga District Court. On 1 December 2023, the matter was transferred to the High Court upon further defendants being charged. A sentence indication was sought at the first call in the High Court on 28 February 2024. A trial date is set for 29 September 2025.
Alleged offending
Conspiracy to possess cocaine for supply
[3]The defendant, Mr Koinaki, became involved in a conspiracy, in its beginning,
to import cocaine into New Zealand via a bulk carrier ship “MV Quest” (the Quest).
[4] Mr Koinaki’s involvement and role within the group is said to be at the lower end of the hierarchy of control and organisation but nevertheless fundamental to the success of the operation.
[5] The Crown accepts that Mr Koinaki did not have actual knowledge of the exact drug involved or the quantity. The Crown accepts that he should be sentenced on the basis that he was reckless as to those factors.
[6]Mr Koinaki is the uncle of Mr P who is described by the Crown as the
“lead offender”.
[7] On 22 December 2022, the Quest entered New Zealand shores near Tauranga carrying 120 kilograms of cocaine concealed in four packages within the sea chest of
1 Misuse of Drugs Act 1975, s 6(2A)(a). Maximum penalty: 14 years’ imprisonment.
2 Crimes Act 1961, s 98A(1). Maximum penalty: 10 years’ imprisonment.
3 Land Transport Act 1998, s 32(1)(a) and (4). Maximum penalty: two years’ imprisonment or
$6,000 fine.
4 The Crown has indicated it will withdraw the participation in an organised criminal group charge if the indication is accepted and guilty pleas entered.
the vessel. A sea chest is a rectangular or cylindrical recess in the hull of a ship which provides an intake reservoir from which piping systems draw raw water. Most sea chests are protected by removable gratings. The plan was that two of Mr Koinaki’s co-defendants would retrieve the cocaine using diving equipment. Mr Koinaki would assist the retrieval team in his boat.
[8] On 3 January 2023, the Quest was given a berth in the Port of Tauranga to unload goods on board.
[9] Police were aware of the planned importation and were monitoring the defendants’ movements and communication.
[10] The defendants conducted several reconnaissance trips in the Tauranga area and purchased a motor vehicle, boat and variety of dive equipment for the purpose of the retrieval. Several members of the group, but not Mr Koinaki, communicated on the encrypted messaging application ‘Signal’ apparently contacting overseas based accomplices.
[11] So far as Mr Koainaki’s involvement is concerned, on 8 January 2023 he drove from Auckland to Tauranga towing a small aluminium boat and outboard, followed by Mr P and another member of the group. The three men met Mr B, described by Police or Crown as the leader of the retrieval team, at Tauranga.
[12] During the day of 11 January 2023, Mr Koinaki, Mr B and Mr A (who was the diver in the retrieval team) conducted surveillance of the Quest from all angles of the harbour.
[13] On 11 January 2023 at midday, unbeknown to the group, Police divers retrieved four packages from the sea chest of the Quest. The packages held 120 kilograms of cocaine in one kilogram “bricks”.
[14] At 6.11 pm that same day Mr M met with Mr B and Mr Koinaki — presumably to confirm arrangements for the evening. At approximately 8.15 pm, Mr Koinaki
launched his aluminium boat from the Sulphur Point boat ramp and remained on the water in the vicinity of the Quest.
[15] Mr A and Mr B were in Pilot Bay on the opposite side of the channel preparing to enter the water with a kayak and diving equipment. Police arrested them before they entered the water.
[16] Several hours later Mr Koinaki was arrested after he returned to the boat ramp at Sulphur Point. He told Police he was practicing to become a boat captain and wanted practice using his boat at night.
Driving while disqualified
[17] Mr Koinaki drove around Tauranga; and also from Auckland to Tauranga despite being a disqualified driver.
Construction of the sentence
Starting point
[18] The Crown seeks a starting point of seven to eight years for the conspiracy charge. Defence submits a six-year starting point for the conspiracy charge would be appropriate.
Aggravating features of the offending
[19]The Crown identifies four aggravating features.
(a)The large quantity of cocaine which evidences a high degree of commerciality and expected financial gain.
(b)The was a significant degree of planning and premeditation.
(c)Mr Koinaki’s role, while not that of an organiser or leader, was fundamental.
(d)The significant harm to the community that results from commercial‑scale drug offending.
[20] There is no guideline decision for cocaine offending. Zhang v R provides guidance,5 however starting points for cocaine related offending must be slightly adjusted downwards to reflect the somewhat less harm that cocaine causes compared to methamphetamine.6
[21] When sentencing for a conspiracy charge, a downwards adjustment is also needed to reflect the lower maximum penalty.7
[22] In this case the offending involved 120 kilograms of cocaine. This is a significant amount and places the offending at the high end of band five in Zhang.8 Band five in Zhang ranges between 10 years’ imprisonment and life. That upper limit must be adjusted downwards to 14 years’ imprisonment to reflect the maximum penalty Mr Koinaki faces for the conspiracy charge.
[23] It is important to consider how well advanced this conspiracy was. Mr Koinaki was very close to completing his role in the operation. He was at sea, close to the Quest, waiting on his co-defendants to retrieve the cocaine and bring it to him. The Court of Appeal’s comment in R v Te Rure is relevant:9
… planning something illegal is logically less serious than actually doing it. However, it is equally logical that, the closer a conspiracy comes to execution, the closer it becomes in seriousness to the actual illegal act being planned.
[24] The closer to completion a conspiracy is, the more serious the offending. That is because the opportunity for a defendant to change his or her mind, to withdraw from the conspiracy or put an end to it, is lower as the conspiracy nears completion. The closer the operation is to completion — the higher the culpability.
5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
6 Cavallo v R [2022] NZCA 276 at [62]–[63].
7 Banaba v R [2016] NZCA 122 at [30], referencing R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627 at [25].
8 Zhang v R, above n 5, at [125]. Band five captures offending involving greater than two kilograms.
9 R v Te Rure, above n 7, at [25].
[25] Mr Koinaki’s role is said to be limited but fundamental. There is no evidence to suggest that he had influence on those above him in the chain. There is no evidence as to what financial gain Mr Koinaki would have made had the conspiracy been successful, but I agree with the Crown that it is clear that the group had significant funds. Financial motivation can be inferred. Intercepted text communication suggested the diver would receive $250,000. There is nothing to suggest Mr Koinaki’s involvement was due to exploitation or that he was motivated by his own addiction, although there is some evidence of drug use later while on bail. I consider Mr Koinaki’s role was lesser relative to the co-defendants, but it falls between lesser and significant as identified by the Supreme Court in Berkland v R.10
[26]Crown and defence counsel rely on three cases:
(a)R v Hodder:11 starting point of seven years’ imprisonment.12 That case involved a charge of attempted possession of cocaine for the purpose of supply. Hodder intended to recover 91 kilograms of cocaine from the hull of a vessel berthed in Dunedin. The drugs had in fact been removed by authorities in Philadelphia. Mr Hodder travelled from Melbourne to Dunedin and went diving to attempt to recover the cocaine. He was sentenced on the basis that he did not know the quantity or identity of the drugs he was to retrieve. Mr Hodder’s role went “beyond that of a catcher” and was on the cusp of the lesser and significant role categories.13
(b)R v Swinton:14 starting point of four years and three months’ imprisonment.15 One charge of conspiracy to import cocaine. Mr Swinton was a stevedore who worked at the Port of Tauranga and agreed to give advice and assist with the retrieval of a believed shipment of 200 kilograms of cocaine that never arrived. The
10 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [71].
11 R v Hodder [2024] NZHC 459.
12 At [6].
13 New Zealand Police v Hodder [2023] NZHC 3715 at [88].
14 R v Swinton [2023] NZHC 216.
15 At [6].
conspiracy was not at an advanced stage because there was no evidence the cocaine was ever loaded onto the ship.
(c)Banaba v R:16 starting point of 13 years’ imprisonment imposed on appeal.17 Three charges of conspiracy to import methamphetamine. The drugs had been intercepted by Canadian authorities. The quantity involved was 6.75 kilograms of methamphetamine. Mr Banaba played an important role in the conspiracy, keeping in contact with co‑defendants as to the timing of three deliveries and providing an address for the delivery of some packages of methamphetamine. He was described as “the man on the ground”.18
[27] Hodder is the most similar to the present case. The offending in that case involved significant, although lesser, quantities of cocaine and the charge carried a maximum penalty of 10 years’ imprisonment. Mr Hodder played a similarly limited, yet fundamental, role of receiving the product from the ship meant to be holding it. The drugs did not actually enter New Zealand.
[28] Mr Koinaki’s starting point must, in my view, be higher than Swinton due to the comparatively much more advanced stage of his alleged offending. Further, Banaba is more serious involving three attempted importations and Mr Banaba played a more significant role.
[29] Mr Koinaki’s counsel submits that the starting point sought by the Crown of seven to eight years would be appropriate for those with a leadership role. I do not agree. This conspiracy was all but complete. Those with a leadership role can expect a starting point in the 10 years plus range.
Uplifts
[30] I consider that for Mr Koinaki a starting point of seven years and six months’ imprisonment is the least restrictive possible for the charge of conspiracy topossess
16 Banaba v R, above n 7.
17 At [38].
18 At [28].
cocaine for supply. This reflects that this conspiracy was incredibly close to completion. The drugs were in New Zealand and Mr Koinaki was at sea near the Quest and clearly willing to follow through with the agreement. There was no prospect of his withdrawing from the plan voluntarily.
[31] The Crown submits an uplift of six months’ imprisonment is appropriate for the driving while disqualified charge. Defence submits an uplift of three months.
[32] Mr Koinaki’s criminal history includes 12 previous convictions for driving while disqualified. He also has convictions for driving contrary to an alcohol interlock license, in a dangerous manner and with excess breath alcohol. As defence submits, nine of the driving while disqualified offences are historic, occurring before 2007. However, Mr Koinaki does have three convictions since 2020 for driving while disqualified. I consider an uplift of six months is warranted to reflect his continued disregard for his disqualification from driving.
[33] In terms of his general criminal history, Mr Koinaki has a steady history of offending over the years including dishonesty offences and two more minor drug convictions. The Crown does not seek an uplift for Mr Koinaki’s criminal history except for a small uplift required to reflect the fact that Mr Koinaki was subject to a sentence of supervision at the time of the offending.
Discounts
[34] Mr Koinaki was on EM bail at the Grace Foundation between April 2023 and October 2023. The Crown submits that no discount should be applied for time spent on EM bail as Mr Koinaki was exited from the Grace Foundation due to drug use.
[35]The Crown accepts a guilty plea discount of 20 to 25 per cent.
Decision
[36] I indicate a starting point of seven years and six months’ imprisonment for conspiracy to possess a Class A drug. Given how close this matter was to completed offending, the starting point reflects that as well as the accepted lack of knowledge as
to the exact quantity or identity of the drugs and the lack of any leadership role. Mr Koinaki’s role was, however, fundamental. He provided the means to get the drugs to shore.
[37]The starting point for the conspiracy charge would be uplifted by six months
for the driving while disqualified.
[38] A further uplift of two months would apply to reflect the fact that Mr Koinaki was on a sentence of supervision for dishonesty offending at the time of the offending. This was serious offending committed while subject to supervision and shows a complete disregard for the Court order he was subject to and the lack of any real rehabilitation in respect of the earlier sentence.
[39] I would allow a 25 per cent discount for guilty plea given that the sentence indication was sought at the first High Court appearance.
[40] Personal mitigating factors and any allowance for time spent on EM bail is better considered at a subsequent sentencing hearing. Further credit may well be available which would reduce the end sentence imposed.
[41] I note also that the influence of the familial relationship and other matters are probably best dealt with in either a pre-sentence report or s 27 report.
Result
[42] The indicated sentence at this point is an overall starting point of eight years and two months’ imprisonment with a 25 per cent discount for guilty plea with potential further credit for personal mitigating factors and time spent on EM bail.
[43] This is an indication of the sentence Mr Koinaki would receive if he entered a guilty plea in the near future.
[44] If he declines to accept this indication and is found guilty at trial, the trial Judge will sentence him on the basis of the facts as the Judge finds them to be and he will obviously lose any credit for a guilty plea.
[45] A memorandum is to be filed within five working days indicating whether Mr Koinaki accepts or declines the sentence indication. Mr Koinaki is remanded in custody to 9 am on 1 May 2024 either for a sentencing date to be identified or the matter to progress to trial.
Wilkinson-Smith J
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