Atkins v Police - [2015] NZHC 1836

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2015-416-015 [2015] NZHC 1836

BETWEEN
LARA MICHELLE KIMIORA ATKINS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 August 2015

Appearances:

T Epati for Appellant
S B Manning for Respondent

Judgment:

4 August 2015

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

ATKINS v NEW ZEALAND POLICE [2015] NZHC 1836 [4 August 2015]

[1] Ms Atkins pleaded guilty in the District Court to seven charges of offering to supply methamphetamine, two charges of conspiring to supply methamphetamine, a representative charge of supplying methamphetamine and a charge of being in possession of methamphetamine for supply. In addition, she pleaded guilty to three charges of attempting to pervert the course of justice.

[2] On 3 July 2015, Judge Bergseng sentenced Ms Atkins to an effective sentence of three years seven months imprisonment.1 She appeals against sentence on the basis that the Judge failed to provide her with adequate discount in respect of mitigating factors.

Background

[3] The charges of perverting the course of justice related to three separate incidents between 13 August 1997 and 7 June 2001. On each occasion a search warrant had been executed at Ms Atkins’ home address and drugs had been found. She then approached associates and persuaded them to advise the police that the drugs belonged to the associates rather than to Ms Atkins. In each case the police accepted the associate’s acknowledgment of responsibility and charges against Ms Atkins were withdrawn. On one of these occasions, the associate was convicted on a charge of being in possession of cannabis for supply.

[4] The drugs charges were laid as a result of a police operation targeting drug dealing activities in the Gisborne area. This led the police to discover that between 1
April and 14 November 2014 Ms Atkins was supplying methamphetamine to several associates, including one of her children. The police analysed text data from Ms Atkins’ cellphone and discovered that she had supplied her son with methamphetamine. He, in turn, on-sold methamphetamine at street level. On occasions Ms Atkins would direct her son to one of her associates in the event that he needed more methamphetamine to sell. The text message data also revealed that Ms Atkins had offered to supply methamphetamine directly to the users of seven identified cellphone numbers.

[5] The police searched Ms Atkins’ address when they terminated the operation on 14 November 2014. At the address they found keys to a vehicle that was parked away from the address. When the police searched the vehicle they found the sum of
$4,911 in cash, together with 28 snaplock bags containing 5.25 grams of methamphetamine.

[6] It was not possible for the police to establish the precise quantity of methamphetamine that was involved in the transactions between Ms Atkins and her son and other persons. The police believe that, in total, up to 20 grams of methamphetamine may have been involved.

The hearings in the District Court

[7] Ms Atkins entered guilty pleas to…

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: [2015] NZHC 1836
Decision Date: 4 August 2015

CaseChat Overview and Summary

The appeal in Atkins v Police before the High Court of New Zealand involved Lara Michelle Kimiora Atkins, who was appealing against her sentence. Atkins had pleaded guilty to various drug-related charges, including offering to supply, conspiring to supply, supplying, and possessing methamphetamine for supply, as well as charges of attempting to pervert the course of justice. Atkins contended that the District Court Judge had failed to provide her with an adequate discount in respect of mitigating factors. The High Court was required to determine whether the sentence imposed by the District Court Judge was appropriate and whether the Judge had adequately considered the mitigating factors presented by Atkins.

The court examined the reasoning behind the sentence indication given by Judge Down and the subsequent sentencing by Judge Bergseng. The court found that while Judge Down had indicated a significant discount of 25% for all charges, it was unclear whether this discount was intended to reflect only the guilty pleas or if it also included other mitigating factors. The court concluded that the discount should have accounted for other mitigating factors, such as Atkins's remorse, childcare responsibilities, and efforts to seek rehabilitation. The court found that a discount of only five percent, or three months, was inadequate to reflect these factors. The court determined that a discount of at least ten percent, or six months, should have been applied.

The appeal was allowed on the charges of being in possession of methamphetamine for supply and supplying methamphetamine. The existing sentences of three years seven months imprisonment were quashed, and new sentences of three years four months imprisonment were imposed, to be served concurrently with all other sentences. This decision highlights the importance of ensuring that mitigating factors are adequately considered when sentencing, particularly in cases involving drug offences.

Orders