Barakat v The Queen - [2020] NZCA 440

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA266/2019
[2020] NZCA 440

BETWEEN	FIONA FAYE BARAKAT Appellant
AND	THE QUEEN Respondent

Hearing:	27 August 2020
Court:	Gilbert, Thomas and Dunningham JJ
Counsel:	R E Webby for Appellant J E Mildenhall for Respondent
Judgment:	21 September 2020 at 9.30 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Thomas J)

On 18 October 2018, Ms Barakat pleaded guilty to five charges: offering to supply methamphetamine,[1] possession of methamphetamine for the purposes of supply,[2] possession of methamphetamine utensils,[3] possession of cocaine,[4] and possession of LSD.[5] This followed a sentence indication given the previous day.[6]
[1]Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2)(a).
[2]Sections 6(1)(f) and 6(2)(a).
[3]Sections 13(1)(a) and 13(3).
[4]Sections 7(1)(a) and 7(2)(a).
[5]Sections 7(1)(a) and 7(2)(a).
[6]The sentence indication set a starting point of four years' imprisonment, uplifted by six months for offending while on home detention for drug supplying offences. A 10 per cent deduction was made for guilty pleas, leaving a sentence of four years’ imprisonment. Depending upon further information provided at sentencing, and the pre-sentence report, Judge Cameron indicated further discounts would likely be available for personal circumstances, including attendance at a drug treatment programme.
At sentencing on 19 December 2018, Ms Barakat applied to vacate her guilty pleas to all charges except possession of utensils and sentencing did not proceed. Following a hearing in the District Court at Tauranga, Judge Macdonald was not satisfied that it was in the interests of justice to grant Ms Barakat leave to vacate her guilty pleas. The application was accordingly declined.[7] Ms Barakat now appeals that decision. The appeal is against conviction.[8]

Background

[7]R v Barakat [2019] NZDC 8688.

[8]R v Kihi CA395-03, 19 April 2004 at [14]. Ms Barakat must therefore demonstrate that a miscarriage of justice has arisen through the decision to decline her application to vacate the guilty pleas: Criminal Procedure Act 2011, s 232(2), (4) and (5).

On 14 November 2017, police executed a search warrant at an address in Tauranga where Ms Barakat was living. Ms Barakat was asleep at the time and her room was searched. Police located four glass pipes used for smoking methamphetamine, a quantity of methamphetamine and a small electronic safe containing $7,600 in cash, six LSD tablets, 0.12 grams of cocaine and Ms Barakat’s passport. Ms Barakat admitted to one of the pipes and the safe being hers but denied any knowledge of the drugs.
Text messages offering to supply methamphetamine were subsequently discovered to have been sent from Ms Barakat’s cell phone number.
Ms Barakat was charged with offering to supply methamphetamine (a representative charge covering the period 1 to 14 November 2017), possession of methamphetamine for the purposes of supply, possession of methamphetamine utensils, possession of cocaine and possession of LSD. By 16 January 2018, Ms Barakat had entered not guilty pleas to all charges and elected trial by…

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.

Continue reading Barakat v The Queen

Details

AGLC: Barakat v The Queen [2020] NZCA 440
Case: [2020] NZCA 440
Decision Date: 21 September 2020 at 9.30 am

CaseChat Overview and Summary

In Barakat v The Queen, Ms Fiona Faye Barakat appealed against the District Court decision to decline her application to vacate her guilty pleas to drug-related charges. Ms Barakat argued that the District Court judge failed to give adequate weight to her vulnerability, did not sufficiently consider the availability of a defence, and that her trial counsel's preparation was inadequate, increasing the pressure on her to plead guilty. The Crown argued that Ms Barakat had been appropriately advised and made an informed decision to plead guilty, and that her regret was not sufficient to amount to a miscarriage of justice.

The Court of Appeal found that Ms Barakat had been given appropriate advice and that she understood and accepted that advice. The Court held that Ms Barakat had a viable defence, but she had expressly rejected it because she would not name her former partner. The Court further found that Ms Barakat's trial counsel had adequately prepared for the trial, and that the suggestion of further charges did not amount to improper pressure on her to plead guilty. The Court concluded that Ms Barakat was appropriately advised and made an informed decision to plead guilty, and dismissed the appeal against conviction.

Orders