R v Birkinshaw
[2016] NZHC 2257
•23 September 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2015-085-001882 [2016] NZHC 2257
THE QUEEN
v
KATHERINE JANE BIRKINSHAW
Counsel: J M OʼSullivan and S W P Woods for Crown
C B Wilkinson-Smith for Defendant
Sentence:
23 September 2016
NOTES ON SENTENCE OF COLLINS J
Introduction
[1] Ms Birkinshaw, you appear for sentence having pleaded guilty on 29 July
2016 in the Wellington High Court to the following charges:
(1) One representative charge of importing methamphetamine.1
(2) One charge of possession of utensils for smoking methamphetamine.2
[2] You also appear in relation to two more charges, to which you pleaded guilty in the Palmerston North District Court:
(3) One charge of receiving property.3
1 Misuse of Drugs Act 1975, s 6(1)(a) and 2(a). Maximum penalty is life imprisonment.
2 Section 13(1)(a). Maximum penalty one year imprisonment/$500 fine.
3 Crimes Act 1961, ss 246 and 247(a). Maximum penalty is seven years’ imprisonment.
R v BIRKINSHAW [2016] NZHC 2257 [23 September 2016]
[3] You consented to the Crown’s application for all charges to be dealt with
together at sentencing.5
[4] In sentencing you this afternoon, I shall: (1) summarise your offending;
(2) explain the starting point I have adopted;
(3) explain the adjustments I will make to the starting point;
(4) explain the adjustments I will make for personal mitigating factors;
and
(5) explain your final sentence.
Your offending
[5] I begin with the charges you pleaded guilty to in the District Court.
Receiving property
[6] On 21 May 2014 at about 9.30 am police executed a search warrant at
27 Worcester Street, Palmerston North. You own the property and you reside there with your children and partner. The address had a number of surveillance cameras attached to its exterior.
[7] On 28 March 2014 there was a burglary at Lockhart Avenue, Palmerston
North where a watch valued at $40.00 was stolen. The watch had distinctive marks on it and was located in your bathroom.
4 Crimes Act 1961, s 6(1)(f) and (2). Maximum penalty is life imprisonment.
5 Criminal Procedure Act 2011, ss 70 and 138.
[8] On 26 April 2014, there was a burglary at Hooker Pacific Transport, Palmerston North where Kathmandu clothing and apparel valued at approximately
$6,600 was stolen. Some of the clothes were located in a number of rooms at your address.
[9] On 5 May 2014, two “Stoney Creek” rain jackets were shoplifted from the Hunting and Fishing store in Palmerston North. Each has a value of $559.49. One jacket was found in your lounge.
[10] On 18 May 2014, there was a burglary at Noel Leemings, Palmerston North where electronic items including televisions, computers and cellphones valued at
$54,229.34 were stolen. A number of these electronic items were located at your address.
[11] The items subject to the receiving charge to you have pleaded to are: (1) the watch worth $40?
(2) goods from Noel Leemings located in your bedroom valued at
$4,270.
(3) Kathmandu goods located in your bedroom valued at $232.
Methamphetamine offending
[12] Two glass pipes used to smoke methamphetamine were located in the master bedroom of your house as a result of the search warrant. Also located in the master bedroom was a small plastic bag containing methamphetamine. Large sums of money were located in different bags hidden throughout the bedrooms of the house, namely:
(1) $30,984.80 cash in a black Kathmandu purse;
(2) $55,000.00 cash in a black Kardashian handbag; and
[13] You were personally searched and a plastic snaplock bag as well as two small round white plastic containers containing methamphetamine was found hidden in your clothing. A small set of electronic scales was located in your handbag with traces of methamphetamine. When escorted to the police station you tested positive for methamphetamine.
[14] The exact weight of the methamphetamine located during the search was
38.89 grams. It is accepted 20 grams was for supply and the remaining close to
20 grams was for your personal use.
[15] I now refer to the importation and possession of utensils charges. In 2013 and 2014 the Organised and Financial Crime Agency of New Zealand, along with the Department of Corrections and the New Zealand Customs Service conducted an
18 month investigation codenamed “Operation Gandolf”. This targeted the activities of an organised criminal group involved in the importation and distribution of methamphetamine throughout New Zealand. You were one of the defendants involved in the group.
[16] Mr Atta was at the centre of the group and in prison at time of his offending. You were on electronically monitored bail at your home address in Palmerston North.
[17] Mr Atta would co-ordinate the importation of methamphetamine by cellphone. He would arrange for New Zealand based buyers, including you, to pay a Thai associate in several instalments through the Western Union money transfer system. The Thai associate charged $15,000 for 100 grams of methamphetamine and Mr Atta charged $5,000 as a commission fee. The buyer would provide the delivery address to Mr Atta who forwarded this to his Thai associate. Once the package was sent, Mr Atta would confirm its delivery to the buyer.
Importing methamphetamine (representative charge)
[18] Between 5 August 2014 and 12 August 2014 you and Mr Atta exchanged a number of text communications in which you arranged for the importation from Thailand of a package containing 100 grams of methamphetamine, with a street value of $60,000 to $100,000. You sent Mr Atta the delivery address of
39 Peppertree Glade, Palmerston North. You acknowledged you received the package in a text message sent to Mr Atta at 9.45 am on 12 August 2014. You subsequently paid Mr Atta his $5,000 commission fee via a third party in Egypt.
[19] Between 19 August 2014 and 12 August 2014 you arranged for another package of 100 grams of methamphetamine to be sent from Thailand to New Zealand. You provided a delivery address of 60 Guy Ave, Palmerston North. On 9 September 2014 at about 1.47 pm the package was delivered to that address. You paid Mr Atta his $5,000 commission fee via a third party in Egypt.
[20] On 21 September 2014 communications between you and Mr Atta make reference to his Thai associate sending packages from Thailand and the Philippines. Mr Atta said he would ask the associate to send to you a package containing
100 grams of methamphetamine. You arranged for the $5,000 commission fee to be paid to Mr Atta.
[21] Between 11 and 17 October 2014 you and Mr Atta exchanged further calls and arranged for the importation of a package from Thailand. The conversation shows you had sent several previous payments to Thailand, indicating you had arranged several previous importations. On 13 October, two messages indicate that
$15,000 had been paid to a Thai associate. The price paid was for 100 grams of methamphetamine. A delivery address was confirmed on 16 October 2014 as
5 Angelina Way, Palmerston North. This was the delivery address for a package of
100 grams of methamphetamine.
[22] On 16 October Mr Atta called you to discuss the packages that had been intercepted and that a person had for a second time been arrested immediately after the delivery of a package. The conversation shows you and Mr Atta discussing
security measures to be taken to safeguard your importations from police and customs. Mr Atta was arrested later that day.
Possession of utensils
[23] On 8 December 2014 a search warrant was executed at your home address. A glass pipe used for smoking methamphetamine was found in your Mitsubishi motor car.
[24] You declined to make comment in relation to any of these matters.
Personal circumstances
[25] I understand you are 41 years old and you have four children.
[26] Your previous convictions include drug related offending for possession of methamphetamine in 2009 and possession of prescription medicine and cannabis in
1999. Your previous convictions also include dishonestly using a document for pecuniary advantage and receiving.
Starting point
[27] The importation of methamphetamine charges are the lead charges for the purposes of setting a starting point. The tariff judgment for methamphetamine importation offending is R v Fatu.6 Your offending sits in the upper range of band two, where the quantity is between five grams and 250 grams and the starting point
is generally between three years six months’ and ten years’ imprisonment.7
6 R v Fatu [2006] 2 NZLR 72 (CA).
7 At [36].
[28] Your offending has the following aggravating features:
(1)Planning and premeditation:8 your offending involved a number of coordinated purchases over a period of time. It was clearly planned and premeditated.
(2)Quantity, value and frequency:9 it is accepted you imported 200 grams of methamphetamine in two importations.
[29] I have taken into account the role you played in the incidents as this is a relevant factor. Those who are primary offenders can expect starting point sentences toward the higher end of the relevant band with the converse applying to those whose role is less significant.10
[30] I accept the Crown’s submission you were a “buyer” of methamphetamine. I note the Minute of Simon France J who considered your co-defendants to similarly be buyers, who can be properly described as importers.11 An importer is more culpable than a supplier.12 You generated the transaction, provided funds and addresses. Although you were not the mastermind of the operation, you were an
instigator in allowing the importations to occur.
[31] Taking into account your offending, sentences of your co-offenders,13 the quantities involved and the role that you played, I consider a provisional starting point of eight years’ imprisonment is appropriate.
Uplifts for the offending
[32] I firstly consider the charge of possession for supply. The amount involved was 20 grams and your offending sits at the lower end of band two of R v Fatu. I
8 Sentencing Act 2002, s 9(1)(i).
9 R v Fatu, above n 6.
10 At [31].
11 Minute of Simon France J, 7 October 2015 at [4].
12 R v Fatu, above n 6 at [22].
13 R v Blewden [2015] NZHC 3159; R v Derek Te Hau [2016] NZHC 619 and R v Moka [2016] NZHC 40.
have considered other cases14 and your level of offending would normally attract a sentence of four to five years’ imprisonment. However, for reasons of totality, I consider a further 18 months’ imprisonment is appropriate.
[33] I turn to the charge of receiving. There is no tariff judgment for this offence. The comments of French J in Allen v Police are nonetheless helpful, where her Honour says that the Court must have regard to “the value of the goods, the duration of the offending, the number of charges, the existence of a commercial element and the closeness of the relationship between the burglar and the receiver”.15 The accepted value of the goods is over $4,500. Considered alone, the starting point would be 12 months’ imprisonment in your circumstances.16 However, taking into account the totality of your offending, I consider a further six months’ uplift to reflect the receiving charge is appropriate.
[34] The starting point is therefore one of 10 years’ imprisonment.
Personal aggravating features
[35] I do not consider your previous offending to be serious enough to warrant an uplift. However, I do accept the Crown’s submission that an uplift is necessary to account for the fact that your offending in relation to the Operation Gandolf charges occurred while you were on bail and an uplift of a further six months is therefore necessary to reflect that factor.
Personal mitigating features
Rehabilitative efforts
[36] You have spent 14 months in Odyssey House on a drug rehabilitation programme. You have ended your relationship with Mr Dankloff and you are now drug free. The course has clearly had a positive impact on you. During your time in Auckland you completed a certificate in community skills at Unitec. Your teacher
says that you were an “excellent student” and you have support from your
14 Levett v R CA 473/05, 20 March 2006 and R v McGrath HC Wellington CRI-2007-078-793, 7
November 2008.
15 Allen v Police HC Christchurch CRI-2009-409-113, 3 September 2009 at [22].
16 Aurupa v Police [2012] NZHC 2750 and O’Connell v Police [2012] NZHC 3286 at [25],
programme leader to undertake further studies. You have also taken on volunteer work at the organisation “Keep on Keepin on”. I accept Mr Wilkinson-Smith’s submission that these rehabilitative efforts are significant and they entitle you to a discount of 20 per cent, which equates to 25 months.
Personal circumstances
[37] You have four children, aged 21, 17, ten and five. I have read the letters from Jake and Amber and they clearly believe in your ability to move forward and change for the better. Your friend Mr Brown says you were “a good mum that made mistakes”. You also rely on a letter from your counsellor, Mr Doherty, who refers to the abusive relationships you have suffered in the past. I am going to give you a further discount of six months to reflect your personal circumstances.
Time on restrictive bail
[38] You have been on electronically monitored bail for three months in 2014 and then 15 months in 2015 till now. You were present at Odyssey House during that time between 11 May 2015 and 27 July 2016. Your main restriction while on bail was a nightly curfew. It is now well-established that some allowance may be appropriate to reflect time spent on restrictive bail.17 I consider a discount of a further six months is appropriate to reflect this factor.
Forfeiture
[39] The Crown seeks forfeiture of $165,000. This is not opposed and you are now entitled to recognition for that forfeiture and that will be reflected in a further reduction of six months’ imprisonment.
Remorse
[40] Mr Wilkinson-Smith submits you are entitled to a discount for remorse and I note the letter you wrote to the court regarding your electronic monitoring bail application in which you did express regret for your actions. I accept that a discrete
but small discount for remorse is appropriate. That discount will be three months.
17 R v Faisandier CA 185/00, 12 October 2000; Schuster v R [2011] NZCA 343.
Guilty plea
[41] You are entitled to credit for pleading guilty and I consider a discount in the vicinity of 20 per cent is appropriate. That equates to 16 months.
Result
[42] This results in a final sentence of five years and four months’ imprisonment. I do not believe a minimum period of imprisonment is required.
[43] Ms Birkinshaw, can you now please stand. On the charge of importing methamphetamine you are sentenced to five years and four months’ imprisonment. On the possession of a pipe charge you are sentenced to a concurrent term of six months’ imprisonment. On the other drugs charges you are sentenced to concurrent terms of four years’ imprisonment. On the receiving charge you are sentenced to a concurrent term of one year imprisonment. Charges 39 and 40 are withdrawn.
[44] Stand down.
D B Collins J
Solicitors:
Crown Solicitor, Wellington
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