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, under which you resumed ordinary work within the community, might qualify you for a community based sentence.

[8]      Your offending for sentence, however, is far too serious, and the starting point I have indicated to you is far too high, to begin to allow for any such possibility.  My only further ability in sentencing you consistently with my indication, is to allow you a discount for that program, set against those which have been allowed for the two reasons I have described.

[9]      In that respect, I note that your primary co-offender, Geoffrey Allen, whose offending was more serious than yours, and whose starting point for sentence was 20 years, was an addict like you.  He also apparently completed a residential program over nine months while on EM bail.  He was also on restrictive bail conditions over

11 months.   He received a three month discount for the former and a six month discount for the latter, in all nine months; a total discount of 3.75 per cent.1

[10]     That is not determinative in your case. Your time in Odyssey House was longer, and more structured so far as I can see, and more demanding.    But it will indicate to you that my ability to discount your sentence on that ground must be exercised consistently with the purposes and principles of sentence for serious drug offending and by the decisions of the Court of Appeal binding me.

Agreed summary

[11]    According to the agreed summary, on which I gave you your sentence indication, you were a member of a syndicate of five headed by Mr Allen who, on

1      R v Allen [2016] NZHC 445.

the Crown case, had between November 2011 and mid 2013 manufactured methamphetamine with unidentified associates and, occasionally, with the help of another syndicate member.  It was in mid 2013 that you became involved.

[12]     On  30  July 2013  and  again  on  8 August  2013,  according to  the agreed summary, you produced pseudoephedrine for Mr Allen to use in manufacture, in each instance producing between 540 – 900 grams of pseudoephedrine, which was capable of being turned into between 270 – 675 grams of methamphetamine.

[13]     From late 2013, according to the summary, Mr Allen began to manufacture methamphetamine, mostly with you assisting him, at a Puhoi address rented from a woman friend of yours, in a shipping container on her property.  You are accountable with him for seven instances of manufacture at that address within the span 21

December 2013 – 29 April 2014.

[14]     Your role, on the Crown case, was not simply to assist Mr Allen as a cook. You also obtained precursor substances for manufacture and you ensured that manufacturing could continue over that four month period at the Puhoi property.

[15]     According to the Crown, on the seven occasions when you and Mr Allan manufactured methamphetamine you used three – five sets of Contac NT.  If three were used, that would have yielded 135 – 202.5 grams of methamphetamine.  If five were used that would have yielded 225 – 337.5 grams. The Crown’s case at trial was to be that your yield in those seven instances lay in the range 945 grams – 2.3625 kilograms of methamphetamine with a street value between $567,000 - $1.4M.

[16]     When I gave you your sentence indication the Crown accepted that I should assume a yield at the lower end of that range, 945 grams, as otherwise the range was going to be a complicating disputed fact.  The indication I gave you rested on that conservative assumption and I adhere to it in the sentence that I am about to impose on you.

[17]     In each of those seven instances, however, as you accept, you received five grams   of   methamphetamine   per   set,   that   is   between   15   –   25   grams   of

methamphetamine, some of which you used yourself and some you gave to friends or sold.

[18]     The   representative   supply   methamphetamine   charge   you   also   face encapsulated  10  specific  incidents.    The  aggregate  quantity  identified  was  41.7 grams.   You also supplied class B Gamma-BTL to  your customers, six specific supplies of small quantities between 21 March 2014 – 19 May 2014.

[19]     You  were arrested  on  29  May 2014  and  remanded  in  custody until  you entered Odyssey House on 3 February 2015, an eight month period for which you will be credited administratively when you serve your sentence.

Previous convictions

[20]     In  my sentence  indication  I did  not  need  to  refer  in  any detail  to  your previous convictions.  I need to refer to them now, particularly because they explain one of the uplifts that I have made in the starting point I indicated to you.

[21]     You began offending in the Whangarei area in early 1982 when you were convicted of possessing cannabis.  Your convictions until 1993 were otherwise for driving offences, including excess breath alcohol offences.  Your final conviction in

1993, however, was indicative.  It was for procuring, or for possession of, cannabis seed.

[22]     You remained free of convictions in the Auckland area apart from twice driving while disqualified, or while your licence was suspended or revoked, until February 2005. You were then convicted of manufacturing methamphetamine and sentenced to imprisonment for four years, three months.  As a result, according to your graduation proposal from Odyssey House, you served two years, nine months, and you were subject to parole for two years after your release in late 2006.

[23]     On 1 December 2014 you were sentenced to imprisonment for two months principally for possession of methamphetamine and cannabis plant.   Your present offending had, of course, by then been happening since July 2013 and continued until April 2014.

Pre-sentence report

[24]     Your pre-sentence report, dated 11 January 2016, inevitably recommends that you be sentenced to imprisonment, in order to be consistent with the sentencing indication I have given you.  But it is a positive report.

[25]     It says, as I accept, that by that date you had achieved level four of the Odyssey House program, you showed remorse and you had taken responsibility for your offending.  While you remained at medium risk of re-offending, and of harming others, those risks were likely to decrease if you could maintain the advances you had made during the program.

[26]     You then told your assessor that you had offended partly as a result of coming into  contact  with  an  old  associate,  presumably  Mr Allen,  to  whom  you  felt  a misplaced sense of loyalty.  But as you also then accepted, you offended because you still had the entrenched addiction to methamphetamine, which had led you first to manufacture in 2000. You were also in debt.

[27]     That addiction was clearly entrenched.  In 2003 you went to Higher Ground but did not complete the program.  You then began to attend Narcotics Anonymous but how much you did so is not clear.   That was what you had to confront in the Odyssey House program.

Graduation proposal and letters

[28]     In  your  Odyssey graduation  proposal,  which  culminates  in  your  re-entry contract,  you  described  your  life  frankly  and  graphically,  and  identified  your situations of high and low risk, your short term and long term goals, and your recreational and vocational plans. You equally frankly identified the triggers that put you at risk of re-offending.

[29]     That graduation proposal, which I found very impressive, shows you to be a highly energetic and talented man, as you have demonstrated during your life in positive  as  well  as  negative  ways.    But  it  also  shows  how  vulnerable  to  your

addiction you have been, and will continue to be, unless you face up constantly to the triggers that you have recognised made you offend and continue offending.

[30]     The letters from your family and your close friends show you have good support.  I find that reassuring, as you must yourself.  All of that said, I must now return to your offending and the sentence that it calls for.

Manufacturing starting point

[31]     In fixing the starting point for your seven manufacture offences, your lead offences for sentence, I began my sentence indication with the yield I was invited to assume, 945 grams.  That, as I said, is well within band four R v Fatu, which sets starting points of 13 years – life imprisonment for manufacture of very large commercial quantities, beginning with 500 grams or more.

[32]     I also concluded that you were to be sentenced as a “primary offender”, as that band assumes. I equated you with the appellant Tuan Ho in R v Ho.2   Like him, you played an important role in sourcing material and in helping the principal offender, Mr Allen, to manufacture.  You also secured the place to manufacture. You received a reward of broadly the same order.

[33]     However, as I then also said, you and he stood in contrast as to the scale of manufacture in which you were implicated and the number of times you participated. Over six months he participated 23 times and the yield was at least 1552 grams. You, by contrast, participated seven times over four months and the assumed yield is

945 grams. That, I said, had to be reflected in your starting point.

[34]      On that basis, I took a 13 year starting point for your manufacturing offences and then, having regard to the principle of totality and to your recent sentences for related offending,  increased it by three six month uplifts, to 14 years, six months: for your supply of methamphetamine and Gamma-BTL offences, and your pseudoephedrine production offence and, finally, for offending while on bail for drug

offending and for your previous related convictions.

2      Ho v R [2015] NZCA 320.

Odyssey discount

[35]     The question what discount you are entitled to for having participated in the Odyssey Program for the last 15 months is the remaining issue of significance.  It is an issue on which counsel remain wide apart.

[36]     There is no issue that you are entitled to a discount for your participation in the Odyssey House Program, even though you appear for serious drug offending, which must be answered by a sentence which denounces and deters, and even though ordinarily personal factors carry little or no weight.3   The issue remains what level of discount.

[37]     Before coming to the principles on which that discount is assessed, I begin with the reports I have as to your progress during that program.

Odyssey reports

[38]     When I gave you your sentence indication on 12 October 2015 I had two reports from Odyssey House, the first of which, dated 17 September 2015, said that since you had been admitted to the program on 3 February 2015, as a result of a poor decision you had regressed to level one, the first of the four program levels.  It was still hoped that you would complete the program well.

[39]     The second, dated 9 October 2015, was more positive.  It said that you had reached level three.  You had responded well to the constructive criticism of your peers.   You were highly motivated.   You had joined the Kapa Haka Group and embraced your culture.   You had begun to assume more personal, and wider, responsibility.

[40]     The third, dated 15 October 2015, said that you were still at level three but making steady progress and still highly motivated, and that you would reach level four within the next four – six weeks.  You would become more responsible both for

yourself and within the community. You were then to receive personal therapy.

3      R v Honan [2015] NZCA 94; Horsfall v R [2012] NZCA 97 at [15], Chen v R (2009) NZCA 445 at 174 and 188.

[41]     The fourth, dated 11 November 2015, said you were still at level three, but likely to reach level four within two – four weeks.   You were still making good progress. The fifth, dated 2 December 2015, confirmed that you had attained level four.  You had begun personal therapy.  You continued to be engaged and motivated. You had become the workshop and a house supervisor.

[42]     The  sixth,  dated  26  January 2016,  said  you  were  still  at  level  four  and benefiting greatly.   You were beginning to prepare your re-entry contract, on graduation, and to look for employment.

[43]     The seventh, on 16 February 2016, said that you had found work and that you were able to move into a transitional house.  You were to graduate in late April or early May; and then, as the final report on 26 April 2016 confirmed, you graduated on 13 April 2016.

[44]     All of these reports confirmed that, throughout your time at Odyssey House, you were randomly tested for drugs and all tests were negative.

Discount principles

[45]     You claim a 40 per cent discount, relying on Heath J’s sentencing decision in R  v  Hereora,  where  he  gave  what  he  described  as  a  discount  of  “extreme proportion”, one year, seven months, to a methamphetamine supplier, who had been in custody for two years, five months, and when sentenced had been on a drug rehabilitation program for six months, with 12 months to run, and with 12 months

aftercare.4

[46]     The Crown contends, by contrast, relying on a recent decision of the Court of Appeal, R v Honan, that no higher discount than 15 – 20 per cent discount can be countenanced.   In that case a 20 per cent discount was allowed for an 18 month Odyssey House program, and for two other significant sources of mitigation.  The Court there described the 46 per cent discount given on sentence for those factors as

“patently excessive”.5

4      R v Hereora [2012] NZHC 3422.

5      R v Honan [2015] NZCA 94.

[47]     The Hereora percentage discount is also the highest that I have identified as a result of reviewing those discounts endorsed by the Court of Appeal for restrictive terms of bail and for rehabilitative gains before sentence.  If anything those discounts have been reduced over recent years to give second place to personal circumstances on sentence for serious drug offending.

[48]     In R v Faisandier,6  which is the source of the discounts that are given for restrictive bail conditions, the Court of Appeal held that what was required was an overall evaluation, not a calculation.  There the appellant had been on EM bail for 24 hours a day for 10 months and the Court increased to 12 months a six month discount given for that reason by the sentencing Judge;  a 25 per cent discount.

[49]     In R v Aram, by contrast, a 16 year starting point for class A drug offending was reduced by one year to reflect “fairly restrictive” bail conditions for over 18 months before trial;7  and that was affirmed on appeal.8    It amounted to a 6.25 per cent discount.

[50]     In R v Tamou, an 18 month starting point for sexual offending was further reduced on appeal by a three month discount to reflect EM bail for nine months before trial; a discount close to 17 per cent.9

[51]     In Keown v R, a seven year starting point for possessing and selling a class B drug, which had been reduced on sentence by two months (less than two per cent), because the appellant had been on EM bail for 12 months, was increased to four months (less than four per cent), because he had been on EM bail for 18 months.10

[52]     As  against  that,  in  R  v Mallett  a five  year starting point  for aggravated robbery and offering to supply methamphetamine, was reduced on appeal by 12 months (20 per cent) for time spent on restrictive bail conditions (four months on a

24 hour curfew and 12 months on an overnight curfew), and for “real and significant

6      R v Faisandier CA185/00, 12 October 2000.

7      R v Arram [2007] NZCA 328.

8      R v Arram HC Auckland CRI-2004-004-7049, 12 October 2006; [2007] NZCA 328 at [77].

9      R v Tamou [2008] NZCA 88.

10     Keown v R [2010] NZCA 492; [2011] NZSC 7.

positive changes” over a four year remand.11 The Court held that the discount given had to reflect both factors.

[53]   On that more general principle, rehabilitative gains before sentence, the percentage discount closest to that given by Heath J in Hereora was that in R v Hill, where on appeal a 35 per cent discount on sentence for low level drug offending was affirmed “to reflect the appellant’s efforts at, and prospects for, rehabilitation”.12   He had undertaken an “intensive out-patient” CADS program, and as a result obtained home detention.13

[54]     In Horsfall v R,14 by contrast, the Court of Appeal affirmed a sentence of two years, six months for the manufacture and supply of methamphetamine even though the appellant contended he did not receive due credit for his rehabilitation from drug and alcohol addiction.   The sentence was held proportionate because the starting point and allowance for plea had been generous and the discount claimed was less than compelling.

[55]     Finally I should mention R v Jarden where in a case involving low level methamphetamine offending the Supreme Court confirmed that, while on sentence drug offenders must receive sentences that denounce and deter, there is still room to take  into  account  personal  circumstances  either  because  they contributed  to  the offending, or on purely compassionate grounds.15

Discount justifiable

[56]     As this long survey makes clear, the discount to which you are entitled is not just a matter of percentage.   An overall evaluation is always called for.   The 40 percent discount in Hereora resulted in a discount of one year, seven months, which was proportionate to the programme for which it was given.  A 40 per cent discount

in your case would be five years, nine months, and that would not be proportionate.

11     R v Mallett [2014] NZCA 39.

12     R v Hill [2008] 2 NZLR 381.

13 At [8].

14     Horsfall v R [2012] NZCA 97.

15     R v Jarden [2008] 3 NZLR 612 (SC).

[57]     From that perspective also, furthermore, the 15 – 20 per cent discount, which the Crown concedes you are entitled to, is defensible.  It is higher than some of the discounts endorsed on appeal for this reason.  I adopt the Crown submission and for two reasons will give you a 20 per cent discount.

[58]     The first is that, as the reports I have narrated show, you have faced up to an entrenched addiction at Odyssey House over 15 months. You have had to work hard. You have gone backwards as well as forwards.  But you have made tangible gains. Your graduation proposal shows how honestly you have faced up to your addiction and what you will need to do to avoid re-offending. You are to be congratulated.

[59]     The second is that you are about to embark on what will still be a lengthy term of imprisonment, having made the gains you have made; and, to the extent that I am able to, I want to encourage you in the discount I give you to serve that sentence without becoming discouraged and losing the benefit of those gains.

Conclusion

[60]   In the result, I reduce my 14 year, six month starting point for your methamphetamine offences by 20 per cent, which I round up to three years, to 11 years six months.  I then reduce it again by a 25 per cent discount for your pleas, again rounded up to three years.  I sentence you for those offences to imprisonment for eight years, six months.

[61]     I sentence you concurrently for your two precursor substance offences, for your methamphetamine supply offences and for supplying Gamma-BTL to imprisonment on each for two years, six months.  Your effective sentence remains eight years, six months.

[62]     As  I said  to  you at  the outset,  I will  not  impose a minimum  period  of imprisonment on you, despite the seriousness of your offending, because I am satisfied that by completing the Odyssey program as you have, you have answered all three of the purposes a minimum period serves.

[63]     That means that your release from the term I have imposed on you will lie within the discretion of the Parole Board, once  you have served  your statutory minimum period, which will be calculated taking into account the eight or so months

that you spent on remand.  I wish you well.

P.J. Keane J