R v Ishak - [2014] NZHC 2027

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-092-13378 [2014] NZHC 2027

THE QUEEN

v

FIONA ISHAK

Charge:
Plea:

Possession of Class A drug for supply

Guilty

Counsel:

K Raftery for Crown
KH Maxwell for Prisoner

Sentenced:

26 August 2014

SENTENCING NOTES OF BREWER J

Solicitors/Counsel: Meredith Connell (Auckland) for Crown
Kathryn Maxwell (Auckland) for Prisoner

R v ISHAK [2014] NZHC 2027 [26 August 2014]

Introduction

[1] Ms Ishak, I have to sentence you on one charge of possession of methamphetamine for supply. The quantity is 1.5 kilograms. Its street value is
$1.5 million.

Facts

[2] The facts can be set out simply.

[3] A Mr Miranda was intercepted at Auckland International Airport in possession of the methamphetamine. He agreed to help the Police find the people who had arranged for it to be imported. It seems one of those people was Mr Obiaga, a man who you worked with and who you considered to be a good friend. Mr Obiaga did not want to personally arrange with Mr Miranda for the handover of the methamphetamine. He wanted to keep his distance. So, he got you involved.

[4] Your role, Ms Ishak, was to make telephone calls. On 20 November 2013, you telephoned Mr Miranda using a mobile phone provided by Mr Obiaga. You told Mr Miranda that your name was Suzanne and that you were the partner of Alfred – the man who Mr Miranda expected to collect the methamphetamine. You said Alfred was overseas and gave Mr Miranda details of a Western Union money transfer for
$500. You rang Mr Miranda again, later that evening, asking to see him at his house. He was unavailable and so you said you would contact him about a meeting the next day.

[5] The next day, 21 November 2013, a meeting was arranged by Mr Obiaga by text message using the name Suzanne. Mr Miranda duly went to the meeting place and waited. You then telephoned Mr Miranda to say that Alfred would be there shortly to get the package. You made this call from a pay phone because you did not have Mr Obiaga’s phone and you did not want to use your phone.

[6] The handover did not go as planned because the man Mr Obiaga sent did not have the code phrase Mr Miranda was expecting him to use. Another participant in

Mr Obiaga’s group, Nancy Leefe, got you to ring Mr Miranda to find out what had

gone wrong. He told you.

[7] Later, Ms Leefe got you to telephone Mr Miranda again to confirm that he

should hand the bags over to Mr Obiaga’s man. He did.

[8] By this time you were in a car with Ms Leefe. You were in the vicinity of the handover of the bags and you watched Mr Miranda get on a bus and leave.

[9] Ms Ishak, there is no suggestion that you ever actually possessed any of the methamphetamine. There is no suggestion that you got any…

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 Ishak

Details

AGLC: R v Ishak [2014] NZHC 2027
Case: [2014] NZHC 2027
Decision Date: 26 August 2014

CaseChat Overview and Summary

In the case of The Queen v Ishak, the defendant, Fiona Ishak, was charged with the possession of a Class A drug, methamphetamine, for the purpose of supply. The court heard that the quantity of methamphetamine involved was 1.5 kilograms, with an estimated street value of $1.5 million. Ishak pleaded guilty to the charge. The primary legal issue for the court to decide was the appropriate sentence for Ishak, given her involvement in the drug supply operation and her otherwise good character and lack of previous convictions.

The court considered the severity of the offence, noting the significant quantity of methamphetamine involved and the predominant purposes of sentencing in cases of serious drug offending, which include holding the offender accountable for the harm done to the community, denouncing the offending, and deterring the offender and others from further offending. The court also examined Ishak's role in the drug supply operation, finding that while she was not a crucial player, her repeated telephone calls and physical presence on the day of the handover warranted a starting point at the lowest end of the sentencing band for such offences, which was 10 years' imprisonment. However, the court recognised Ishak's genuine remorse, her plea of guilty, and her exceptional personal circumstances, which included her long-term work as a carer for people with intellectual and/or mental health problems, her dedication to her family, and her lack of any personal involvement with drugs. Taking these factors into account, the court determined an appropriate sentence of four years' imprisonment, which represented a 60% reduction from the starting point.

The final orders of the court were that Fiona Ishak be sentenced to four years' imprisonment for the charge of possession of the Class A controlled drug methamphetamine for the purpose of supply.

Orders