R v Koekoe

Sentence 1HIS HONOUR: The Offender Tiare Koekoe appears for sentence consequent upon her pleading guilty on 1 November 2012 to supplying 22.8 grams of ecstasy at Olympic Park on 30 June 2012. 2The offence has a maximum penalty of fifteen years imprisonment and/or 2,000 penalty units. There is no standard non parole period and it cannot be dealt with summarily. 3The Offender pleaded guilty on arraignment and on the first occasion that the matter came before this Court. In a case a few years ago, the Court of Criminal Appeal [R v Borkowski (2009) 195 A Cr R 1] emphasised the need for consistency across the State in the approach to the discount given for the utility of guilty pleas. Here at Parramatta, as the list judge, it is patently obvious that only a tiny percentage of cases committed for trial are resolved by way of a plea of guilty upon arraignment. There are a large number of matters involving offenders who plead guilty in the Local Court and who are committed for sentence. But, of those who are committed for trial, on each Monday somewhere in the order of twenty-five to thirty-three per cent of cases where a trial is due to begin are resolved by way of a guilty plea. 4There is a need to encourage such guilty pleas to be entered at a much earlier date. The consequence of this high percentage of matters listed for trial that resolve in guilty pleas on the day of the trial or within the week the trial is listed is that the Court has to over-list the matters that are listed for trial. This sometimes results in matters being marked "not reached", which can involve great expense to the taxpayer and to self-funded litigants. Notwithstanding the need to ensure that the approach is consistent across the jurisdiction, it seems to the Court that there is a need to revisit the percentage of a discount delivered in the usual case where a guilty plea is entered on arraignment. 5The only additional thing that occurs, usually between committal for trial and arraignment, is a Crown Prosecutor screens a matter and finds an indictment. The way the cases are conducted here suggests that conferences with complainants and witnesses usually take place at a point much closer to the trial date. It seems to the Court a much greater degree of energy and resources from the prosecution and police point of view are put in once a not guilty plea is entered and a trial date is fixed, in comparison to the effort and resources put in between committal for trial and arraignment. For this reason the Court proposes in this case, having considered these matters as well as the need to consistency, to extend a discount of about twenty per cent to reflect the utility of the Offender's guilty plea. 6There is no evidence before the Court of remorse and the Court is not satisfied the conditions referred to in para 21A(3)(i) are met. Accordingly, no discount was given to reflect remorse. 7The Offender apparently attended a dance party at Olympic Park on 30 June this year. Police were in attendance with a drug detection dog. At around 9.40pm, that dog indicated the presence of drugs on the Offender. Constable Fairley indicated to the Offender the dog had smelt drug in her presence and issued her with a caution. After asking her if she understood it, she said "Yes". After asking if she had drugs on her, she denied that proposition. She then placed her hands in her pockets. She was asked to keep her hands in front of her. She was then taken to a female constable who apparently escorted her to a command post located nearby. After being told that she was going to be searched, she was asked by the female officer if she had any drugs on her and replied in the negative. She appeared to be nervous, was stepping from side to side on the same spot and had her hands in her pockets. 8She was then escorted into a searching room. When the police officer asked her to remove a top layer of clothing, which was apparently a tracksuit, she told the officer she had no underwear on. When she started to remove her pants, the officer heard a rustling sound and asked the Offender what it was. The Offender responded by saying she had her periods. The officer indicated she did not accept that proposition and asked the Offender to give her anything that she had. The Offender shook her head. Once her pants were off, it was apparent that she was wearing a pair of tights. The officer again gave her the opportunity to produce anything if she had them down her pants. It was at this juncture that the Offender folded down the waist of her tights and underwear and handed the officer a resealable bag containing black pepper substance and two other packages. 9She was then asked some questions and agreed that the packages had been produced by her during a search. When asked if she could say what it was she said "No". When asked what was inside the bag, she said "pills". When asked "How many?" She said a hundred. She did not know what they were and told the officer she did not know where she got them. The Court notes that she declined later to sign the notebook. She was interviewed at Auburn Police Station and exercised her right to silence concerning the drugs found on her. Whether she was invited to adopt the conversation at the time immediately after producing the drugs during that interview is not established from the evidence. She did, during the interview, acknowledge that she used drugs in the past but said she had only ever used cannabis. 10There was a total of 101 tablets in the bags. There were 73 tablets with a heart logo on them. These weighed 16.4 grams and contained 24.5%pure ecstasy. Another 26 tablets also had a heart logo on them. These weighed 5.86 grams and contained ecstasy but were not tested to determine the quantity of pure ecstasy in them. There were two further tablets that were loose and they tested positive to amphetamines. One of them also contained ecstasy along with ketamine and methyl amphetamine. 11According to the last paragraph in the facts, pepper is used to disguise drugs from being discovered by drug dogs. 12The Offender was nineteen when she committed the offence. She turned twenty in September of this year. Has two younger brothers and a younger step sister. The evidence discloses that she has the disadvantages of a dysfunctional upbringing because of domestic violence and, after her parent's separation which occurred when she was around ten or eleven years of age, she spent some time living with her mother and some time living with her father. She apparently had behavioural problems. 13She was expelled in Year 8 for using cannabis. After attending a new school, she truanted frequently and ultimately completed Year 10 whilst in custody. The evidence discloses a sound work history, although she lost at least one job because of her addiction. She has been working in gaol. 14The Court notes that she started doing martial arts when she was in kindergarten [resulting in misalignment ofher hips]. She has had a number of operations for those and claims to still have pain. She fractured her jaw in 2010 but did not have an operation to fix this because she chose to go to the Cook Islands because her father was remarrying. 15The evidence discloses she has had the benefit of some counselling, including whilst at school, because of her attitude and rebellious behaviour. This seems to have improved the relationship between her and her mother. 16Her substance abuse problem started when she was aged twelve or thirteen. That was an age when she would not have appreciated the long term consequences of that abuse. She claims that, since she has been in custody, she is over cannabis She did tell the psychologist that she participated in the Youth Drug Court program, although on the face of it, exhibit B1 does not support that. She did participate in the MERIT program. She claims that she was doing well. However, she was still abusing alcohol at least during that time, which was this year. Her consumption of alcohol increased after she terminated her pregnancy last year. 17The Court notes that she does not have a respectful relationship with her step father. 18The Offender does not have the benefit of prior good character. The Court noted the number and nature of matters dealt with in the juvenile jurisdiction between 2007 and 2010, including proceedings where earlier community-based orders were revoked. On 18 January 2012, she was: