R v Youkhana

[2024] NZHC 3248

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2022-085-002285

[2024] NZHC 3248

THE KING

v

RAMI LAZAR YOUKHANA

Hearing:

4 November 2024

Counsel:

M K Story for Crown

K F Preston for Defendant

Sentencing:

4 November 2024

SENTENCING NOTES OF RADICH J

[1]    Rami Lazar Youkhana, you appear today to be sentenced on the eight charges of receiving to which you have pleaded guilty.1

[2]    In sentencing you today, I will address, first, the broad receiving operation of which your conduct forms a part, as well as your involvement in that operation. I will then discuss the starting point that I am taking for your offending, including the adjustments I need to make to that starting point to take account of the fact that you are already serving a sentence for receiving and burglary charges committed in 2023.

1      Crimes Act 1961, s 246. Six of the charges (one of which is representative) are for receiving property valued at over $1,000 and carry a maximum penalty of seven years’ imprisonment; one is for receiving property valued between $500 and $1,000) and carry a maximum penalty of one year’s imprisonment; and one is for receiving property valued at less than $500 and carries a maximum penalty of three months’ imprisonment.

R v YOUKHANA [2024] NZHC 3248 [4 November 2024]

Finally, I will describe the adjustments I make to account of factors that are personal to you.

The receiving operation as a whole

[3]    Your offending arises from a police operation, carried out across 2022, to target a large-scale receiving operation. The primary instigator, and operator, of the enterprise was your co-offender Mr Soon. Mr Soon would be contacted by people offering stolen goods for sale; people who had stolen the goods or who had, themselves, received them. Equally, Mr Soon would provide to people lists of goods he wished to  have, on the basis  that they would be stolen or shoplifted to  order.  Mr Soon had connections throughout Wellington and received stolen goods from several groups in the district.

[4]    You were one of the two most significant providers of property to Mr Soon. You were in regular communication with him over the course of 2022 and your conversations with him related almost exclusively to the sale and purchase of stolen property. Telecommunication records show that, when funds from Mr Soon were slow to arrive, you would chase him for money, referring to the need to pay other people for the goods in question. You were also “by far” the most regular communicator with Mr Soon, as shown through calls and text messages. There were 1,668 communications between you and Mr Soon between 19 February 2022 and 19 October 2022. You communicated with Mr Soon by text on average 50 times a week. Mr Soon visited your address regularly, where he would collect stolen property.

[5]    You sold items to Mr Soon that had a retail value in excess of $100,000. Property to a value of over $2.9 million was recovered by police in the course of the operation as a whole.

Mr Youkhana’s role in the operation

[6]    You carried out your offending between 25 January 2022 and 6 October 2022. You received stolen property including power tools, building materials, hardware and fittings, appliances, whiteware, consumer electronics, and bikes.

[7]    The nature of your communications with Mr Soon reveal an active role on your part. The communications include discussions about items in your possession for sale to Mr Soon, negotiations over the price that Mr Soon would pay, discussions about the transportation and storage of the items, warnings about police being present at or near the property at which you lived, and advice from you to Mr Soon about who he should or should not purchase stolen property from. Observations from police surveillance of you and Mr Soon reveal other meetings, for example, a car park meeting and an occasion on which you were seen putting a PlayStation and a bicycle into Mr Soon’s car. There is also evidence that bank transfers were made to you from accounts operated by Mr Soon and his partner.

[8]    Six of the particular representative receiving charges you have been convicted of relate to certain bikes that you received. The other receiving charge you have been convicted of relates to 18 Fujitsu heat pumps valued at $30,185.82. The total value of the items in these charges is $49,885.82. These particular items were all recovered from various storage units in Kenepuru, Ngauranga and Lower Hutt.

Starting point

[9]    In setting a starting point, regard is to be had to the purposes and principles of sentencing in the Sentencing Act 2002. The sentence must promote in you a sense of responsibility for the harm that it is alleged that you have caused, and it must deter other people from committing the same or similar offences.

[10]   The receiving charges may be assessed together in setting the starting point. There is no tariff case for offending of this type. However, authorities show that, in assessing culpability for receiving, regard should be had to the value of the goods, to the duration of the offending, to the number of charges, to the existence or otherwise of a commercial element and to the closeness of the relationship between a burglar and a receiver.2

2      R v Tua [2014] NZHC 3049 at [15], citing Allen v Police HC Christchurch CRI-2009-409-113,  3 September 2009 at [21] and [22].

Aggravating and mitigating factors relevant to Mr Youkhana

[11]   I consider your level of culpability to be high. While you were not the ultimate leader, or ringleader, in the scheme, you were conducting a commercial operation in your own right. You would arrange for associates to bring stolen items to you which you would then look to sell to Mr Soon. You established yourself as the main conduit for stolen property in the Wellington region being onsold to Mr Soon. Your offending spanned a six-month period.

[12]   The retail value of the stolen property received by you across all of the receiving charges, as I have said, exceeds $100,000. This level of offending has caused harm to many civilian and commercial victims. I have received three victim impact statements.

[13]   The first is from a victim whose two bikes were stolen by others and received by you. She has said she could not afford to replace the bikes, which meant a great deal to her in providing support for her at that time when she was facing some mental and physical health issues. It was, as she put it, a very difficult time in her life. She spoke also of the fear that stemmed from the bikes being stolen from what was meant to be a secure area in her apartment building. The second statement is from a victim whose bike and biking accessories were stolen by others and received by you. He said that, while he was able to get his bike back, he had to replace other accessories to the value of $450.

[14]   The third statement is from a victim, on behalf of himself and of the corporation for which he is managing director; a Wellington-based construction company. There were several thefts that took place at the company’s development sites that resulted in the company’s property being received by you. He has said that the thefts caused financial strain due to the loss of expensive materials and appliances but also due to the delays that resulted in the building works which in and of themselves caused expensive consequences, including the erosion of client relationships, which have proven to be enduring. These factors have caused him and others associated with his company and the building works great stress. He said that, in addition, the thefts took

an emotional toll on those working on the projects who felt their hard work had been undermined, and that their trust and feeling of security at the sites had been violated.

Similar cases

[15]   While, as I have said, there is no tariff decision in this area, a number of previous sentencing decisions for receiving offences provide some assistance. They produce something of a spectrum. In the sentence indications I gave to you and your co-offenders, I said that there would appear to be three different groupings of cases.

[16]   The most serious category is comprised of cases in which a defendant is a principal member of an organised group, where receiving is sophisticated, on a large- scale, with property stolen to order and where the property involved is relatively significant in value.3 In those cases, starting points of five to six years, and sometimes a little more, have been imposed.4

[17]   The middle category as I see it is comprised of cases in which a defendant is an active participant in an organised receiving group but led by others, and has arranged proactively for associates to steal items in order to receive them involving property to a total value (in 2024 terms) in the broad order of $75,000. In those cases, starting points of four years have been imposed.5

[18]   The least serious category in the authorities reviewed is made up of cases involving a single event and relatively valuable property (with values ranging from between $5,000 to $60,000), where starting points of between 12 to 18 months have been imposed.6

[19]   As I said in your sentencing indication, I see your offending as sitting above the middle category of the cases I have mentioned. When I gave that indication, I said I saw your offending as being more serious than that of one of your co-offenders who

3      Examples in this category having included motor vehicles, expensive cameras and IT equipment.

4      R v Bom CA209/96, 16 October 1996; R v Lasike HC Auckland CRI-2004-044-7103, 7 September 2006; Andrews v R [2012] NZCA 61.

5      R v Clayton [2008] NZCA 348; Paramore v Police [2014] NZHC 646; and R v Lasike, above n 4, at [66].

6      Henry v Police [2021] NZHC 573; Carpenter v Police [2021] NZHC 3545; and Ellis v R [2012] NZCA 513.

I indicated would receive a starting point of four years’ imprisonment. While your role in the operation was similar to hers, the value of the property you are alleged to have received is materially higher. You face an additional two receiving charges and the level of your communications with Mr Soon reflected that the level of your involvement in the operation as a whole was materially higher. In the sentencing indication, I agreed with the Crown’s assessment that a starting point of four years and three months’ imprisonment is appropriate. No new information has come to light that would change that view, based upon where the seriousness of your offending sits within the spectrum of seriousness indicated through the cases I have mentioned.

Successive sentencing adjustment

[20]   The next thing I need to do is to take into account the fact that you are serving a sentence of imprisonment at the moment for receiving and burglary charges committed in 2023. Judge Nicholls in the District Court sentenced you to two years’ imprisonment for that offending. The Sentencing Act requires me to take into account the totality of that sentence alongside any sentence that I would impose for the present offending.

[21]   The first step in that process is to consider whether these charges should be sentenced cumulatively with – that is, in addition to – the 2023 charges rather than concurrently with them – that is, at the same time as them. That decision depends upon, in terms of s 84 of the Sentencing Act, whether or not the offences are of a different kind. Having regard to the fact that, while the offending is all for receiving, the offences are not part of a connected series, that they occurred at different times, and to the significantly more serious nature of the current charges – which include your involvement in the large-scale receiving operation I have described – the sentence imposed will need to be cumulative.

[22]   That being the case, this sentence, together with the sentence imposed by Judge Nicholls in the District Court must not result in a total period of imprisonment that is wholly out of proportion to the gravity of the overall offending.7

7      Sentencing Act 2002, s 85(2) and see Haywood v R [2015] NZCA 551 at [11] and Piao v R [2020] NZCA 607 at [22] and [23], citing R v Bradley [1979] 2 NZLR 262 (CA) at [263]–[264].

Two different methods

[23]   Ultimately at the sentencing indication your counsel and counsel for the Crown agreed upon the approach that should be taken in order to account for totality for the successive sentences.

[24]   Before turning to the approach taken in this case, I observe that the different possible approaches under this head have, in previous cases, revealed two methods for accounting for totality when setting the starting point for successive sentences.

[25]   Under the first method, totality is assessed by asking whether the combined starting points are wholly out of proportion to the overall gravity of all of the offending. If the answer is yes, then the starting point for the successive sentence would be adjusted. Any uplifts or discounts would then be applied to the starting point for the successive sentence without a further assessment for totality. To achieve this in practice, one would approach the exercise as if sentencing all the offending together.

[26]   This was the method used by Lang J in R v Wilson. 8 In that case, Lang J was considering sexual offending against victims that had occurred at varying points in the past. It was something that Heron J had already, in 1996, sentenced Mr Wilson for in relation to different victims.

[27]   In approaching the sentencing exercise, Lang J considered first what the starting point for the successive sentence would be, if it stood alone. Then he considered whether Heron J would, had the later offences been before him, have adopted a higher starting point than the starting point he had adopted in 1996. He concluded that he would have. And then Lang J adjusted downwards the starting point for the successive sentence to reflect an appropriate overall starting point. He took discounts from that overall starting point.9

[28]   The Court of Appeal upheld an appeal from that decision but it did not disturb the approach taken by Lang J. It was suggested by Mr Preston in the earlier hearing that the Court of Appeal had endorsed that approach. As I mentioned at the time, I do

8      R v Wilson [2018] NZHC 3117.

9      At [25]–[29].

not know that that is quite the right way to put it, but certainly the Court of Appeal looked at both that approach and the approach that I come on to describe and said that, in either case, the uplift that was given could not have been objected to. This first method, as I have called it, was used also by Powell J in R v G. 10

[29]   The second method entails first calculating the starting point for the successive sentence and adding any uplifts or discounts before assessing totality. Totality is then assessed by asking whether the combined end sentences are wholly out of proportion to the overall gravity of the offending combined. If the answer is yes, the successive sentence is adjusted accordingly.

[30]   The second method was used, for example, by Jagose J in R v Piao.11 In that case, the Judge calculated, first, the starting point for the successive sentence. He adjusted it for aggravating and mitigating factors and then he considered totality, looking at the prior sentence.

[31]   That decision was upheld on appeal, with the Court of Appeal saying that the Judge had in fact looked at the offending in its totality and had considered the appropriateness of the total sentence as if the offender was before the Court for all offences.12

[32]   The second method was used also by the Court of Appeal in Haywood v R,13 Opetaia v R14 and Ngamoki v R.15

[33]   In their oral submissions at the sentence indication stage, both counsel indicated support in this case for the use of the first of the two methods that I have described.

[34]   Therefore, the ultimate question that must be asked when assessing totality is whether the total end sentence is wholly out of proportion with the gravity of all of the

10     R v G [2021] NZHC 218.

11     R v Piao [2020] NZHC 1839.

12     Piao v R [2020] NZCA 607 at [22] and [23].

13     Haywood v R [2015] NZCA 551 at [15] and [16].

14     Opetaia v R [2013] NZCA 434 at [34].

15     Ngamoki v R [2022] NZCA 171 at [31].

receiving offending – that is, the offending in 2022, which is being considered here, and the offending in 2023, for which you have been sentenced already. While it might be said that the question can be answered adequately using either method and that they might, adopting a broad totality approach, lead to the same conclusion, I am drawn to conclude that the first method minimises the risk of assessing totality by reference to factors other than the gravity of the offending.

[35]   To explain what I mean by this, it is helpful to consider the way in which totality is engaged when a Court is sentencing an offender to multiple charges (but not where successive sentences are involved, as here). Courts have accepted that there are two methods, which mirror those that I have described:

(a)The first method involves the Court setting the starting point, adjusting for totality, then adding or subtracting for any aggravating or mitigating factors.

(b)The second method involves the Court setting the starting point, adjusting or subtracting any aggravating or mitigating factors, then adjusting for totality.

[36]   There have been cases where the second method has been found to have led to error.16 That is because, if totality is considered only after allowances have been made for personal factors, there is a risk that the totality assessment is influenced by factors that are irrelevant to the gravity of the offending.17 However, as was discussed in Dudley-Tough v R, both methods are used by the courts and the second method, while sometimes problematic, will not necessarily lead to error.18 Whether or not the risk of accounting for irrelevant factors materialises will depend on the particular circumstances of the case.19

16     See, by way of example, Polaapau v R [2020] NZCA 227 at [44]; and Jacobson v R [2023] NZHC 1358.

17     Jacobson v R, above n 16, at [14].

18     Dudley-Tough v R [2023] NZHC 3459 at [27]–[30].

19 At [30].

[37]   The relevance of this risk is, as far as I can tell, yet to be discussed in relation to assessing totality when imposing a successive sentence. It is, as I see it, a relevant risk in successive sentence cases and could well be material depending on the facts of the particular case. In this case, for example, where, Mr Youkhana, you have received significant discounts for mitigating factors personal to you (and not bearing on the gravity of you offending) for this existing sentence – and where you may well receive similar discounts for this successive sentence – using the second method would, in my view, create a risk of assessing totality by reference to factors irrelevant to the gravity of offending assessed as a whole. While the second method could be used, that risk would need to be borne in mind.

The calculations that result

[38]   I come back now to the starting point of four years and three months’ imprisonment that I have assessed as being appropriate for the offending before me today.

[39]   I am now going to consider the increase to that starting point that I would make if accounting now for the 2023 offending that was the subject of sentencing before Judge Nicholls – in other words, the uplift that I would make to the starting point that I have assessed having regard to the offending before Judge Nicholls – which was a charge of receiving and a charge of burglary. Mr Preston, in his sentence indication submissions (which included an analysis of burglary offending cases that were said to be relevant) had submitted that a six-month uplift would be appropriate. In submissions for the Crown, it was submitted that a 12-month uplift would be appropriate.

[40]   I am drawn to conclude that it would be inappropriate for anything less than a 12-month uplift to be applied in this case. Having regard to the four years and three months’ starting point, and looking at the offending that was before Judge Nicholls, a 12-month uplift is in my view the minimum appropriate uplift in the circumstances for that offending assessed as a whole. That would result in a sentence starting point for all of the offending – in 2022 and 2023 – of five years and three months.

Uplifts

[41]   Next, I come to the uplift for previous convictions and for offending on bail. Your history, Mr Youkhana, of property and dishonesty offending just over the last six years is very concerning indeed. You have 13 previous convictions for receiving. However, Judge Nicholls has already applied a five-month uplift for the same set of previous relevant convictions, so no further uplift should be imposed now. To do so would amount to double counting. Accordingly, in the joint assessment we are undertaking here for the 2022 and 2023 offending, I reapply here that five-month uplift. In this way, it is applied only once.

[42]   That means that at this point the cumulative total is 68 months – or five years and eight months – as a starting point. That is the starting point I adopt on the successive sentencing approach I have discussed.

Guilty plea

[43]   A starting point is able to be reduced if a guilty plea is entered at a sufficiently early point in time. The Crown does not oppose the full 25 per cent credit that can be available for the entry of a guilty plea at an appropriate point in time. A 25 per cent credit is regarded essentially as the maximum available discount when a guilty plea is entered at the earliest opportunity. Here, the guilty plea was entered when the trial was five weeks away and had been scheduled for some time. Nonetheless, because your co-offenders, who pleaded guilty not long before yourself, received full credit, as I said at the sentence indication stage, I will apply that 25 per cent credit here.

Drug and alcohol addiction

[44]   As the Supreme Court said in Berkland v R, a background factor personal to an offender is relevant to sentencing where it helps to explain why the offender has come on to offend in some rational way.20 Background factors of this type can include those that have contributed causatively to offending – such as more diffuse drivers or intergenerational sources of offending – rather than only those that have been an

20     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].

operative or proximate cause. However, there will be a point at which background factors no longer assist in explaining offending.21

[45]   An addiction to drugs or alcohol can be such a factor. The pre-sentence report for sentencing today gives details of your addiction history and of related issues. I am satisfied that you have substance abuse issues, particularly with methamphetamine, which helps to explain why you have come to offend. You have felt the need to fund that addiction. When Judge Nicholls sentenced you in February, he applied a credit of three months’ imprisonment. That was approximately a 10 per cent credit on the basis of the comprehensive drug and alcohol report that had been prepared. I accept that a credit of that sort is also appropriate here, because, equally for the present offending as for the offending that the Judge was considering, your addiction has contributed causatively to your offending.

Time spent on restrictive bail conditions

[46]   Counsel are agreed that the two-month deduction for restrictive bail conditions that you serve should be made. I agree. That then results, at this point, in a 42-month period.

Remorse and rehabilitative prospects

[47]   Where a defendant demonstrates genuine remorse – assessed through evaluating robustly all of the relevant circumstances – a separate credit will generally be justified.22 Whether remorse is genuine is a question of fact and judgment. The defendant bears the onus of satisfying the Judge their remorse is genuine, although remorse need not be extraordinary to justify a credit.23

[48]   You have written a letter in which you have said that you are sorry for what you have done and sorry for the impact your offending has had on its victims. You

21 At [110].

22     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

23     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24].

have said that your time in prison has woken you up to how drug offending has affected your perspective such that funding your addiction had to be your priority, no matter the cost. In prison, you have been receiving treatment through a drug addiction treatment programme. As your counsel said, you have taken that on voluntarily. You have said that when you are released you would like to be paroled to a rehabilitative centre to continue with your treatment. While it is not for this Court now to impose parole conditions,24 that sentiment is acknowledged and it is appreciated. It is said in your pre-sentence report that you have left the gang with which you were involved and that you intend to stay away from that sort of lifestyle.

[49]   I acknowledge what you have said in your letter. If you are able to maintain your motivation to address your addiction issues, I believe that you can turn things around. From what your pre-sentence report describes, you have supportive parents. They care very much for you and they are at a loss as to how you have ended up walking the path that you have walked. It seems that if you continue your motivation to change, they would take steps to support you in achieving a better life for yourself where your actions are not harming others.

[50]   Equally clearly, you are intelligent and have the ability to be motivated. These qualities are demonstrated through the qualifications you have obtained. However, I do not see these factors as justifying, Mr Youkhana, a separate credit. While you have expressed remorse, it is in generalised terms and does not, in my view, demonstrate the full awareness of the impact of your offending on the many victims involved. Your long history of dishonesty does make it difficult to take the points that you made at face value; while I do acknowledge them. While you are serving your first sentence of imprisonment, previous sentences for home detention and supervision have provided an opportunity to reflect on drug use and how it has contributed to your offending. As it stands, I have been prepared to give you significant credits for other factors personal to you – including what I see as being a generous credit for your guilty plea in those circumstances and for your addiction. In these circumstances, I do not see any further credits at this point as being appropriate.

24     See Parole Act 2002, s 75; because the end result is that Mr Youkhana will serve a long-term sentence of imprisonment, any release conditions are a matter for the Parole Board.

Result

[51]   We come now to the point at which all of this comes together. What I have done is looked at how you would be sentenced if you were being sentenced for all of your offending together – that is, your 2022 offending together with your 2023 offending, for which you are presently serving a sentence of imprisonment. On the approach that I have taken, a starting point of 68 months’ (five years and eight months’) imprisonment would be imposed which factors in your extensive history of dishonesty convictions and the fact you offended while on bail. I have applied credits totalling 35 per cent for your guilty pleas on all offending and for the role your addiction has played in all of your offending. I have applied also a credit of two months to reflect the time you spent on restrictive bail. That results in an end sentence of 42 months, or three and a half years’ imprisonment.

[52]   So 42 months is the sentence you would have received were you being sentenced for all of your offending together. However, as mentioned, you have already received a sentence of two years’ imprisonment from Judge Nicholls. Therefore, I need to account for that by reducing the 42 month sentence assessment by two years. That results in an additional sentence today of 18 months’, or one and a half years’, imprisonment. This sentence will be served cumulatively on the sentence of two years’ imprisonment, so that in total you will serve a period of three and a half years’ imprisonment for your 2022 and 2023 offending.

[53]   I do hope that you will continue to use your time in custody to reflect on the choices you have made and that have put you in the position you are in, and the harm that your drug addiction has caused through the offending it has led you to carry out. As you have heard from the victim impact statements, I have described, your offending has harmed others quite deeply. You have the chance to turn that around by continuing to engage in the courses to address your drug problem and by making good on the wish you have expressed to attend rehabilitative programmes if granted parole. I

commend you for that. Moreover, it will be vital for you, as you have acknowledged yourself, to stay away from those who would lead you back into the lifestyle that has caused you to be where you are today.

[54]Mr Youkhana:

(a)For each of the six charges of receiving property exceeding $1,000 in value, you are sentenced to a term of 18 months’ imprisonment.

(b)For the charge of receiving property exceeding $500 but not exceeding

$1,000 in value, you are sentenced to a term of three months’ imprisonment.

(c)For the charge of receiving stolen property not exceeding $500 in value, you are sentenced to a term of three months’ imprisonment.

[55]   The sentences will run concurrently, or at the same time, so your effective sentence is 18 months’ imprisonment. They will be served cumulatively on the term of two years’ imprisonment that you are serving presently.

[56]Please now stand down.

Radich J

Solicitors/Counsel:

Crown Solicitor, Wellington for Crown

Kevin Preston Barrister, Wellington for Defendant