R v Kokiri HC Auckland CRI 2008-054-5862

[2010] NZHC 1048

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2008-054-5862

THE QUEEN

v

DUANE JARROD KOKIRI

Hearing:         10 June 2010

Counsel:         B D Vanderkolk for Crown

P S Coles for Prisoner

Sentence:       10 June 2010

SENTENCING OF RONALD YOUNG J

[1]      Mr Kokiri you are for sentence today having pleaded guilty to charges of possession of cannabis for supply, possession of cannabis oil and cultivation of cannabis.

[2]      On 27 November 2008 a search warrant was executed at your address.  You were located smoking cannabis.  Two plants were found and in addition there was cannabis plant material found including four tinnies weighing 2.5 grams valued at some $80, 20 grams of cannabis depending on how it was sold valued at several hundred dollars.  In addition there were two caps of cannabis oil, a set of electronic

scales, a police scanner and a number of snaplock bags with cannabis residue.

R V DUANE JARROD KOKIRI HC PMN CRI 2008-054-5862  10 June 2010

[3]      The day after that search warrant there was a search warrant executed on Vodafone relating to your cell phone.  A number of text messages were intercepted which it is said illustrate the sale of cannabis by you.  Some of the discussions did not result in any purchase or sale at all.   Others resulted in purchases and others offers to sell by you which do not seem to have resulted in a purchase.

[4]      During  this  time  it  seems  you  purchased  approximately  12 ounces  of cannabis and at $250 per ounce this would involve some $3,000.  There is evidence of the sale of some of this cannabis.

[5]      The pre-sentence report identifies your past criminal offending.  You began offending  in  1998.    Primarily  you  have  convictions  for  driving  and  property offences.   You have some previous convictions for drugs, possession of cannabis seeds and utensils in 2001 and a conviction for cultivation in 2004.  You have been imprisoned primarily for your driving offences.

[6]      The pre-sentence report records that you were in poor circumstances at the time of your drug dealing, you were not in receipt of a benefit and you were trying to make money to support your family by repairing cars and selling drugs.  You told the police officer you did not make much money from the sale of drugs, just enough to pay your bills.

[7]      The officer assesses you at high risk of re-offending, certainly reoffending by driving given your past record.  Unfortunately you reject psychological counselling which seems to be one of the few rehabilitative possibilities likely to work for you. No community based sentence is recommended but if you are sentenced to two years or less imprisonment special conditions following release are recommended.

[8]      The Crown say that the appropriate starting point is somewhere between two and two and a half years’ imprisonment emphasising this is commercial drug dealing on a regular basis but accepting it is not major dealing.

[9]      I take into account the submissions by your counsel both written and oral and

I take into account the letter that you have written me which I have read.  He stresses

that  the  guilty  pleas  were  entered  at  the  first  reasonable  opportunity  given discussions about the facts at depositions.  He suggests that the appropriate starting point should be one of two years given the modest amount of cannabis involved and the modest evidence of drug dealing found on your text messaging.  Your counsel says that none of your personal circumstances would justify any increase in the starting point and that proper credit should be given for your guilty plea.  He does not suggest that this is an appropriate case for home detention.

[10]     This is, in my assessment, a low medium level of commercial drug dealing. The amount of cannabis found by itself could only justify an assessment of low level offending but there is evidence of more significant cannabis purchases as sales as a result of the interception of the electronic communications.

[11]    I consider the appropriate starting point is two years and three months’ imprisonment.  I agree with Mr Coles, your lawyer, that there is no basis on which to increase that start sentence.  While you do have previous drug convictions they are relatively minor and while you do have a bad list of convictions for driving I do not consider that justifies an increase for cannabis offending now.

[12]     As  to  your  guilty  plea  you  were  first  charged  on  4 September and  you pleaded guilty on 15 April some eight months later on the date of depositions.  There were I accept some disputed fats to be resolved but it is clear you did not plead guilty at the earliest possible opportunity.  While I am not prepared to give a full one third discount I intend to give a substantial discount somewhere near that range.

[13]   I deduct from your starting sentence of two years and three months’ imprisonment, eight months reducing your start sentence therefore to 19 months’ imprisonment.    I  impose  the  special  conditions  recommended  by  the  probation officer in his probation report being; you undertake psychological assessment and counselling and treatment as recommended by the psychologist and, as directed by the officer, you are not to possess a motor vehicle or to involve yourself in fixing motor vehicles for the duration of your release on the conditions.

[14]     With regard to the other offences on the cannabis oil you are convicted and sentenced  to  three  months’  imprisonment.  On  the  cultivation  of  cannabis  six

months’ imprisonment, both sentences concurrent.

Solicitors:

B D Vanderkolk, Ben Vanderkolk & Associates, PO Box 31, Palmerston North, email:  [email protected]

P S Coles, Barrister, PO Box 208, Palmerston North Central 4440,

email:  Karen[email protected]

Ronald Young J