ORDER THAT NO PERSON IS TO HAVE ACCESS TO THE COURT FILE ON THIS MATTER WITHOUT FIRST OBTAINING LEAVE OF A JUDGE OF THIS COURT
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-090-001097
CRI-2014-004-008151 [2014] NZHC 3287
THE QUEEN
v
JOSEF BRIAN RAKICH and
MICHAEL REEVES
Hearing:
21, 30 and 31 October, 25 November and
11 and 12 December 2014
Counsel:
A J Pollett and S R Jacobs for the Crown A D Couchman for the Prisoner, Rakich J I S Kovacevich for the Prisoner, Reeves
Sentence:
12 December 2014
SENTENCE OF DUFFY J
Counsel: A D Couchman, Auckland
J I S Kovacevich, Auckland
Solicitors: Meredith Connell, Auckland
R v RAKICH and REEVES [2014] NZHC 3287 [12 December 2014]
[1]Mr Reeves, you appear for sentence today having pleaded guilty to:
(a)One representative charge under s 6(1)(e) of the Misuse of Drugs Act 1975 (the Act) of selling class C drugs;
(b)One representative charge under s 6(2A)(c) of the Act of conspiring to sell class C drugs; and
(c)One representative charge under s 6(1)(b) of producing class C drugs.
[2]Mr Rakich, you appear for sentence today having pleaded guilty to:
(a)One representative charge under s 6(1)(e) of the Act of selling class C drugs; and
(b)One representative charge under s 6(2A)(c) of the Act of conspiring to sell class C drugs.
[3] The class C drugs involved in this offending were the drugs 1- benzylpiperazine or A2 benzylpiperazine or N-benzylpiperazine (1-benzyl-1,4- diazacyclohexane) (“BZP”), 1-(3-trifluoromethylphenyl)piperazine or N-(3 - trifluoromethylphenyl)piperazine) (“TFMPP”), Methedrone and MDPV. As these drugs are sold in tablet form, I shall refer to them collectively as the “class C tablets”.
[4] These drugs are sold on the street as ecstasy, even though they are not the drug MDMA, which is an acronym for the chemical name for ecstasy. Further, the drug MDMA is classified as a class B drug under the Act, whereas the drugs involved in this offending are not; they are class C.
[5] Now your counsel may have explained to both of you that as I work through the sentencing process, I have to adopt what is called a starting point, and the starting point for offending of this nature is a term of imprisonment. The fact that I adopt that starting point does not mean that there will be a term of imprisonment. It is just the foundation on which I build the ultimate sentence.
[6]I also indicate at the outset – this is particularly important for you, Mr Reeves
– that I am of the view that certainly for neither of you, there should be a sentence of imprisonment, and I propose to have enquiries made as to whether the address of your parents is a suitable address from which you could serve a sentence of home detention. If it is, that will be the sentence. If it is not, and there is no suitable address, I will be left with no alternative but to send you to prison, but in…
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.
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AGLC
R v Rakich [2014] NZHC 3287
Case
[2014] NZHC 3287
Decision Date
CaseChat Overview and Summary
This case involved the sentencing of two individuals, Josef Brian Rakich and Michael Reeves, who had pleaded guilty to various drug-related offences. The Crown sought to impose imprisonment sentences on both offenders, while the defence argued for home detention and community work sentences. Additionally, Mr. Rakich sought to be discharged without conviction, while Mr. Reeves faced difficulties in finding a suitable address for a home detention sentence. The court considered the purposes and principles of sentencing, including the need to hold offenders accountable, promote responsibility and acknowledgement of the harm caused, denounce and deter such conduct, protect the community, and assist in the rehabilitation and reintegration of offenders. The court assessed the gravity of the offending, the consequences of a conviction, and the proportionality of the sentence in relation to the offending. Ultimately, the court decided to discharge Mr. Rakich without conviction and impose a sentence of home detention and community work on Mr. Reeves.
The final orders of the court were as follows:
1. Mr. Rakich was discharged without conviction on the two charges to which he pleaded guilty, pursuant to s 106 of the Sentencing Act.
2. Mr. Reeves was sentenced to a term of home detention of 12 months and 200 hours of community work on the charges on which he pleaded guilty and was convicted.
3. An order was made that no person is to have access to the Court file on this matter without first obtaining leave of a Judge of this Court, in relation to the financial information provided by Mr. Rakich.