R v Birkinshaw - [2016] NZHC 2257

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…

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 R v Birkinshaw

Details

AGLC: R v Birkinshaw [2016] NZHC 2257
Case: [2016] NZHC 2257
Decision Date: 23 September 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Ms Katherine Jane Birkinshaw was sentenced after pleading guilty to charges including the importation of methamphetamine, possession of utensils for smoking methamphetamine, receiving property, and possession of a controlled drug. The court had to decide on the appropriate sentence, considering the nature and extent of the offending, the role of the defendant in the criminal activities, and various personal mitigating factors. The court identified significant aggravating factors such as the planning and premeditation of the offences, the quantity of drugs involved, and the defendant's role in the importation scheme. These factors led the court to set a provisional starting point of eight years’ imprisonment for the importation charges. However, the court also considered several personal mitigating factors, including the defendant's participation in a drug rehabilitation program, her efforts to distance herself from previous associates, and the impact of her offending on her children. The court concluded that these factors warranted a reduction in the sentence, leading to a final sentence of five years and four months’ imprisonment, with concurrent terms for the other charges. The court also ordered the forfeiture of $165,000, which the defendant did not oppose.

Orders