R v Korach - [2016] NZHC 923

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-092-005952 [2016] NZHC 923

THE QUEEN

v

STEVAN KORACH

Hearing: 6 May 2016

Appearances:

Y Yelavich for Crown
E P Priest for Defendant

Sentence:

6 May 2016

SENTENCE OF KEANE J

Solicitors:
Kayes Fletcher Walker, Auckland

R v KORACH [2015] NZHC 923 [6 May 2016]

[1] Stevan Korach, you appear for sentence for 11 offences within the span July

2013 – May 2014: seven of manufacturing the class A drug methamphetamine, two of producing the precursor substance, pseudoephedrine, and two representative charges of supplying, or offering to supply, methamphetamine and the class B drug Gamma-BTL.

[2] On 16 October 2015 you pleaded to these offences after you accepted a sentence indication I gave you on 12 October 2015, in which I said I would take a 13 year starting point for your manufacture offences, uplifted to 14 years, six months, by three discrete six month uplifts for your methamphetamine and Gamma-BTL supply offences, for your production of pseudoephedrine offences and, finally, for your offending on bail and your previous convictions.

[3] In my indication I told you that I would allow you a full 25 per cent discount for plea, that I would sentence you concurrently for your remaining offences, and that I was inclined not to impose on you a minimum term if you completed the Odyssey House program satisfactorily as you now have. Two issues, as I then said, remained.

[4] The first was whether, as well as a full discount for your plea, you should receive a distinct prior discount for constructively resolving with the Crown by plea the charges against you. The Crown contends that a full discount for plea subsumes any such discount and your counsel does not now claim one for you as long as you receive a full discount for plea; the discount I am going to give you.

[5] The second issue, which has since been the subject of more complete submissions, is whether, apart from your full discount for plea, you should receive a prior discount for having completed the Odyssey House program satisfactorily. As to that the Crown accepts that you are entitled to a 15- 20 per cent prior discount. Your counsel claims for you a 40 per cent prior discount.

[6] To sentence you consistently with my sentence indication, and to assess what discount for your Odyssey House program is proportionate, I must first set out again your offending as I did in my sentence indication. I must then refer to your previous

convictions, your pre-sentence report and your own materials for me on sentence. I must then review the levels of discount allowed in earlier cases to reflect restrictive terms of bail, particularly EM bail, and to recognise positive rehabilitative efforts, after plea and before sentence.

[7] Before I begin, however, I must say this to you. I see from your highly impressive graduation proposal at Odyssey House that you then hoped that your completion of that program,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Korach

Details

AGLC: R v Korach [2016] NZHC 923
Case: [2016] NZHC 923
Decision Date: 6 May 2016

CaseChat Overview and Summary

Stevan Korach was sentenced by the High Court of New Zealand, Auckland Registry, on 6 May 2016, for 11 drug-related offences committed between July 2013 and May 2014. These included seven counts of manufacturing methamphetamine, two counts of producing the precursor substance pseudoephedrine, and two representative charges of supplying methamphetamine and Gamma-BTL. Korach pleaded guilty to these charges following a sentence indication provided by the judge on 12 October 2015. The court had to decide on the appropriate level of discount for Korach's participation in the Odyssey House rehabilitation program and his early guilty plea.

The court first considered whether Korach was entitled to a distinct prior discount for constructively resolving with the Crown by plea, in addition to the full 25 per cent discount for his plea. The Crown argued that the full discount for plea subsumed any such discount, which Korach's counsel did not contest. The second issue was the appropriate level of discount for Korach's satisfactory completion of the Odyssey House program. The Crown accepted a 15-20 per cent prior discount, while Korach's counsel claimed a 40 per cent discount. The court decided on a 20 per cent discount for Korach's participation in the Odyssey House program and his early guilty plea. The court took into account the seriousness of Korach's offending and the need to denounce and deter such behaviour, while also recognising his efforts to address his addiction and rehabilitation.

The court sentenced Korach to imprisonment for eight years and six months for the methamphetamine offences, with concurrent sentences of two years and six months for the other charges. The effective sentence remained at eight years and six months. The court did not impose a minimum period of imprisonment, as it was satisfied that Korach had answered all three purposes a minimum period serves by completing the Odyssey program. Korach's release from the term imposed on him would lie within the discretion of the Parole Board, once he had served his statutory minimum period.

Orders