Atkins v Police - [2022] NZHC 61

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2021-416-10

[2022] NZHC 61

BETWEEN
LARA MICHELLE KIMIORA ATKINS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 26 January 2022 (via VMR)

Appearances:

W R Hawkins for Appellant C Stuart for Respondent

Judgment:

1 February 2022

JUDGMENT OF ISAC J

[Appeal against sentence]

Introduction

[1] Ms Atkins appeals a sentence of two years and three months’ imprisonment imposed by Judge Cathcart on:

(a)four charges of possession of methamphetamine for the purpose of supply;1

(b)three charges of offering to supply methamphetamine;2 and

(c)two charges of supplying methamphetamine.3

1      Misuse of Drugs Act 1975, ss 6(1)(f), and (2)(a); maximum penalty of life imprisonment.
2      Section 6(1)(c) and (2)(a); maximum penalty of life imprisonment.
3      Section 6(1)(c) and (2)(a); maximum penalty of life imprisonment.

ATKINS v NEW ZEALAND POLICE [2022] NZHC 61 [1 February 2022]

[2] The principal submission on behalf of the appellant is that the District Court failed to apply a sentencing methodology consistent with the Court of Appeal’s decision in Moses v R,4 and failed to provide sufficient reductions to reflect the role of addiction in the offending and for remorse.

The offending

[3]Sentencing proceeded based on an agreed summary of facts.

[4] On 10 November 2020 police executed an arrest warrant in relation to Ms Atkins’ partner. He was located in a motel room in Gladstone Road, Gisborne. On police arrival Ms Atkins was located in bed with her partner. Police observed in plain view on a chair a large quantity of unused plastic snaplock bags and a cutdown plastic straw.

[5] A subsequent search of the motel revealed a rolled-up sock underneath a pillow on the bed containing a bag with 25.8 grams of methamphetamine. For the purposes of sentencing, it was accepted that Ms Atkins and her partner had obtained the methamphetamine together and were intending to sell half each to their own customers (equating to 12.9 grams each). Police also located $20,140 in cash in a backpack belonging to Ms Atkins’ partner, and a further $1,242.50 in his wallet. The backpack also contained a set of digital pocket scales and cellphone. On the floor next to the bed was a police radio scanner.

[6] Police also located a further 11.1 grams of methamphetamine in a bag in Ms Atkins’ jacket pocket, along with a significant quantity of unused smaller plastic snaplock bags. Another bag in the defendant’s jacket pocket contained 3.5 grams of methamphetamine, but as its purity was less than one per cent both the parties, and the District Court, ignored it for sentencing purposes. Police also located a further
$7,542.60 in cash in Ms Atkins’ clothing and bags.

4 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

[7] Ms Atkins’ cellphone was later searched and communications revealed further methamphetamine dealing. It consisted principally of offers to supply, and two instances of actual supply totalling a further 10 grams.

[8]The agreed summary of facts…

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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Details

Case: [2022] NZHC 61
Decision Date: 1 February 2022

CaseChat Overview and Summary

Lara Michelle Kimiora Atkins appeals against a sentence of two years and three months’ imprisonment imposed by the District Court for drug-related charges, including possession, offering to supply, and supply of methamphetamine. The appeal focuses on whether the District Court erred in its sentencing approach and whether the sentence is manifestly excessive. The court examined whether the District Court properly applied the two-step methodology from Moses v R and whether it adequately considered factors such as addiction, remorse, and personal circumstances. The High Court found that while the District Court’s approach did not strictly adhere to the Moses methodology, it resulted in a generous discount of 21 per cent from the starting point of 54 months, reflecting addiction and rehabilitative efforts. The court also concluded that no more than a 10 per cent discount was warranted for personal circumstances and that the refusal to provide a discount for remorse was justified. Ultimately, the High Court determined that the sentence was not manifestly excessive and dismissed the appeal.

Orders