R v Moke

[2013] NZHC 2018

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2011-043-2338 [2013] NZHC 2018

THE QUEEN

v

NALEESHA ANGELICA MOKE

Hearing:                   9 August 2013

Counsel:                  C E Clarke for Crown

P J Mooney for Prisoner

Sentence:                 9 August 2013

SENTENCING NOTES OF THE HON JUSTICE KÓS

[1]      Ms Moke, you have been convicted by a jury of the following offences:

a)        conspiracy to supply class C ecstasy;1 and

b)        conspiracy to supply class C cannabis plant.2

[2]      You also pleaded guilty to offering to supply methamphetamine.3

[3]      As in the case of your co-offenders this morning, Ms Moke, I am going to tell you immediately where you stand.   You are not going to prison.   You will serve

eight months’ home detention.

1      Misuse of Drugs Act 1975, ss 6(1)(c) and s 6(2A)(c).

2      Sections 6(1)(e) and 6(2A)(c).

3      Section 6(1)(c) and 6(2)(a)

R v MOKE [2013] NZHC 2018 [9 August 2013]

Facts

[1]      You are 25 years old.   You are currently employed as a housekeeper and receptionist at a local hotel.

[2]      The charges against you arose out of Operation Puff, an investigation into the sale and supply of controlled drugs in the New Plymouth area between May and September 2011.   Part of that investigation focused on the activities of the New Plymouth chapter of the Rebels motorcycle gang.  You have no association with that gang.  But you did with its Sergeant at Arms, Nathan Couper.

[3]      You were identified in the operation through recorded conversations, text communication and surveillance.   You were in regular contact with your co- offenders, Mr Couper and Mr James.  At that time, Mr Couper was a senior patched Rebels Gang member.

[4]      Between 12 July and 27 July 2011 you and Mr Couper communicated in person, over the phone and via text message to organise the sale and supply of illicit drugs.

Offering to supply class A methamphetamine

[5]      On 12 July 2011 Mr James contacted you using Mr Couper’s phone.  You were asked to source half a gram of methamphetamine.  You replied, specifying the price  of  the  amount  to  be  paid  up  front.  The  drug  was  not  actually  supplied. Mr Mooney submits that you had neither the intention nor the ability to actually supply methamphetamine.  That may be so, but intent to participate in supply is an essential element of the charge. And you pleaded guilty to that charge ahead of trial.

Conspiracy to supply class C ecstasy

[6]      Between 12 and 26 July 2011 you conducted a series of communications with Mr James and Mr Couper regarding the sale of 500 ecstasy tablets.   There was a dispute over the cost of samples which Mr Couper and Mr James required in order to validate the authenticity of the tablets.  Between 21 July and 26 July you contacted

Mr Couper to inform him that you had the tablets available for him to purchase.  A text on 26 July suggests that you had actually supplied ecstasy to Mr Couper.  Just how much is unclear.

[7]      Your defence, articulated in your police interview, was that this was all a hoozle, and that you were just trying to cheat Mr Couper.  The jury verdict shows that they did not accept that defence.

Conspiracy to supply class C cannabis plant

[8]      This  charge  arose  from  your  involvement  in  a  single  transaction.    You attempted to source two lots of cannabis.  You expressed an intention to on-sell one lot, and keep the other lot for your own use.  There is no evidence that you actually on-sold the other part of the cannabis.  It is probable that you consumed it yourself. But the jury found a conspiracy to supply others, and that is that.

Sentencing purposes and principles

[9]      You heard me say in the case of others this morning that I have to take into account the various purposes and principles set out in ss 7 and 8 of the Sentencing Act 2002.   I am not going to repeat myself in terms of what I said to Mr James. What I said to him applies to you and I will follow the same approach.

Lead offence

[10]     The Crown accepts in this case that the lead charge for sentencing purposes should be conspiracy to supply class C ecstasy.     Given the law’s revulsion for methamphetamine, ordinarily that would be the lead charge.  But in this case there was no actual supply of methamphetamine, in contrast to the ecstasy charge.  And the methamphetamine charge earns a 25 per cent discount from the fact that you pleaded guilty to it an early stage.  So mathematically it is really academic whether the lead charge is the methamphetamine or ecstasy conspiracy.   I will adopt the approach suggested by the Crown.

[11]     There is no tariff case for the supply of class C ecstasy but the sentencing approach in R v Terewi4 is of assistance.5   This case falls at the lower end of band 2 of Terewi, which covers small scale sale for commercial ends.   Band 2 attracts a starting point of between two and four years imprisonment.

[12]     Where sales are infrequent, or of a very limited extent, then a lower starting point may be appropriate.  In my opinion, the quantity of tablets discussed does not justify a starting point of lower than two years here.

[13]     A discount is required to account for the fact that this was a conspiracy, and no actual sale took place.   There are broadly two classes of conspiracy.   Inchoate conspiracies  are  less  serious  than  those  in  which  the  conspiracy  resulted  in substantive offending.6     Mr Mooney suggests on your behalf that your ability to complete the transaction was limited.  On the other hand, your text messages indicate that you obtained some tablets for Mr Couper.  I am prepared to accept that you may have largely (but not entirely) been  leading Mr Couper on.   On balance,  I am satisfied that you were somewhere in between a theoretical plan and the point of

action.  I find that a discount of 20 per cent is appropriate.

Result on lead offence

[14]     I adopt, therefore, a starting point of 19 months for the lead offence.

Other offending

[15]     I must also apply an uplift in respect of your other offending.  I will start with the charge of offering to supply methamphetamine.   The Crown accepts that this offending falls at the lower end of band one of R v Fatu.  Band one is for low level supply of less than five grams and attracts a starting point of two to four years imprisonment.   The amount involved in your case was half a gram.  You pleaded guilty to this charge.  Mr Mooney submits that you had neither the intention nor the

ability  to  actually  supply  methamphetamine.    Turning  to  the  third  charge  of

4      R v Terewi [1999] 3 NZLR 62.

5      R v Day HC Hamilton CRI 2010-019-010271, 23 June 2011.

6      R v Te Rure (2007) 23 CRNZ 967 at [27].

conspiracy to supply cannabis, the amount involved there was small, and there was no actual evidence of on-sale.

[16]     I am satisfied that a modest uplift of three months is appropriate to reflect this additional offending.

Result on other offending

[17]     The initial start point of 19 months imprisonment is therefore uplifted by three months to one year, ten months imprisonment.

Totality

[4]      I am satisfied from the point of view of totality that that does not produce an outcome disproportionate to the gravity of your offending taken as a whole.

Aggravating and mitigating features of the offender

[18]     I turn now to aggravating and mitigating features concerning you personally.

Aggravating features

[19]     You have two prior relevant convictions.   In 2006, you were convicted of possession of cannabis and sentenced to 40 hours community work and ordered to pay $100 reparation.   In 2008, you were convicted of possession of cannabis for supply and you received three months’ home detention.  These convictions indicate your continuing involvement with drugs.   However, the convictions occurred five and seven years ago and the sentences you received for them indicate that they were relatively minor offences.

[20]      I am satisfied that no uplift is required for aggravating considerations.

Mitigating features

[21]     You have a number of mitigating factors that fall in your favour.  They relate to rehabilitation and remorse.

[22]     Your pre sentence report noted that you are motivated to address the causes of your offending.  You take responsibility for your actions.  The motivation to address the cause of your offending is borne out by your endeavours to address your drug use.  It significant that you sought help from the DHB Mental Health and Addiction Services prior to your arrest.  I note that you are continuing to try to address your issues with drug addiction, and you are currently attending alcohol and drug counselling.

[23]     You have been able to obtain regular employment, and I note that two of your previous employers speak very positively of you.   Your Work and Income Case Manager reports a significant change in your attitude and she states that in the last year you have developed into, and I quote, a “lovely young woman who has a lot of promise and potential”.

[24]     I was also influenced by the letter you wrote to the Court.  It showed insight into your offending and the factors that led you to offend.  I accept that your remorse is genuine, and that your actions were more the product of foolish gaming than determined criminality.  Your letter also detailed steps that you have taken to achieve rehabilitation. Those are tangible.

[25]     I encourage you to continue on this positive path.   I am certainly reluctant today to take a step today that would throw you off it.

[26]     I have also taken into account the material before me detailing the trauma that you have endured in the past.   I do not intend to add to the misery that you have endured by reciting the details in open Court.   But it says a great deal for you, Ms Moke, that you are not human wreckage.  Instead you are optimistic, committed to resolving your drug issues and desirous of conducting yourself again as a law- abiding member of the community.

[27]     Taking all of these factors into account, I am satisfied that a reduction of 15 per cent for remorse and tangible rehabilitation is appropriate.

[28]     This would bring your sentence to one year, six months’ imprisonment.

Home detention

[29]     Because your sentence is one of two years or less, you are eligible for a sentence of home detention.7   As I have said in the case of others I have sentenced today to home detention, I am satisfied that the purposes of sentencing, including denunciation and deterrence, can here be met by a sentence of home detention.8    I repeat again what I said earlier, in your presence, in the case of your co-offender Mr Dewar and the others, about the rehabilitative benefits of this sort of sentence for offender and society alike.9

[30]     I also repeat my observation that home detention is not a soft option.  The restrictions on your freedom are very real.  I intend, as in the case of the others, to enable you to continue in employment, because that is the step that is most likely to secure your rehabilitation, rather than depriving you of that liberty.

[31]     Repetition continuing, I remind you, that breach of conditions is likely to result in revocation and in that event you will go to prison for the balance of your sentence.

[32]    The term of home detention is approximately half the equivalent prison sentence.  The reasons for that I have stated already in the case of sentencing your co-offenders.

[33]     Your residence in New Plymouth has been assessed as suitable and that your sister, who I think is the legal occupant, understands the conditions to be imposed, consents to them, and has been informed that she may withdraw her consent at any

time.  I note that you consent to the conditions suggested by the probation officer and

7      Sentencing Act 2002, s 15A.

8      R v Iosefa [2008] NZCA 453 at [41].

9      R v Dewar [2013] NZHC 2010.

through your counsel, Mr Mooney, consent to the additional conditions that I have outlined this morning.

Sentence

[34]     Stand please.

[35]     Ms Moke, I sentence you to eight months’ home detention.

[36]     That sentence is to be managed in a way that enables you to continue in employment if at all possible.

[37]     The following conditions are to apply:

(a)      You  are  to  travel  directly  to  the  address  prescribed  in  your  pre- sentence report.   There you are to await the arrival of a probation officer and security officer.

(b)      You are to reside at that address for the duration of your sentence.

That is subject to any exceptions approved in writing by a probation officer, and to the following condition (c).

(c)      Those monitoring your sentence are to permit you to be absent for such time as is essential to enable you to maintain your present employment, or any other employment approved by a probation officer.  Such absences from the detention address are strictly limited to travelling directly to, remaining at and travelling from your workplace, unless an exception under condition (b) applies.

(d)You are to be subject to electronic monitoring to ensure compliance on such conditions as are determined by a probation officer.

(e)      You are not to purchase, possess or consume alcohol or illicit drugs for the duration of the sentence.

(f)      You are to submit to such drug tests as are required by your probation officer.

(g)You are to present yourself at the door of the detention address when called upon to do so by any probation or police officer visiting the address.

(h)You are to undertake an alcohol and drug assessment, and complete any recommended counselling or treatment for abuse of alcohol and other drugs, to the satisfaction of a probation officer and programme provider.

(i)       You are not to have any contact with your co-offenders.

[38]     Standard post-release conditions will apply for a period of six months only.10

[39]     Ms Moke, if you are serious about sorting your life out, as I believe you to be, then this Court is giving you a significant chance to do that.  I have decided that it is better that that happens through continued employment in the community, rather than turning you into a couch potato on home detention.  I doubt the chance being given to you will be repeated.  So take it, respect it, use it and make the best of it. Good luck to you, and good morning.

[40]     Stand down.

Stephen Kós J

Solicitors:

Crown Solicitor, New Plymouth

Mooney & Webb, New Plymouth for Prisoner

10     Sentencing Act 2002, s 80N(2)(a).