R v Kau Kau - [2013] NZHC 2688

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-009-005715
[2013] NZHC 2688

THE QUEEN

v

JACQUELINE DANIELLE KAU KAU

Hearing:

15 October 2013

Appearances:

K C Francis for the Crown

R M Mansfield for the Defendant

Judgment:

15 October 2013

SENTENCING NOTES OF WYLIE J

R v KAU KAU [2013] NZHC 2688 [15 October 2013]

[1] Ms Kau Kau, you appear for sentence today, having made a voluntary appearance in the Auckland District Court on 19 July 2013, and having pleaded guilty to the following charges on 2 August 2013:

(a)Dealing in the Class A controlled drug methamphetamine. This is an offence pursuant to the Misuse of Drugs Act 1975, and the maximum penalty is life imprisonment;

(b)Possession of the Class A controlled drug methamphetamine for the purpose of supply, together with others. Again, this is an offence pursuant to the Misuse of Drugs Act, and again, the maximum penalty is one of life imprisonment;

(c)Possession of the Class B controlled drug gamma-hydroxybutyrate (GHB or Fantasy). This is also an offence pursuant to the Misuse of Drugs Act, and the maximum penalty is three months’ imprisonment, and/or a fine of $500.

[2] The guilty pleas were entered prior to committal, and you were committed to this Court for sentencing. You have spent some time in custody. Counsel are agreed the total time you have spent in custody is approximately a month.

Relevant Facts

[3] In early 2013, police in Christchurch were investigating the flow of methamphetamine into the city from Auckland. One of your co-accused, who is based in Auckland, was identified as a source of the drug. He was transporting methamphetamine to Christchurch in a number of ways. On some occasions, he would travel to Christchurch himself to deliver the drug. On other occasions, he would use drug couriers, or “mules”, who travelled to Christchurch on domestic airline flights.

[4] You were one of those couriers. You flew to Christchurch on three occasions. On the first trip, you simply accompanied the drug supplier. On the other two occasions, you transported methamphetamine which he had provided to you.

[5] On the first of these trips, on 14 May 2013, you met the supplier in Auckland, and you and he went to the Domestic Terminal at Auckland Airport. He purchased a ticket for you to Christchurch. He provided you with a package containing an ounce, or 28 grams, of methamphetamine. You concealed that package on your person. You flew to Christchurch. On arrival, you met the other of your co-accused, the recipient of the drug. You travelled to a motel together in his car. You handed your co-accused the package containing the methamphetamine. Two days later, he gave you $2,000 in cash in part payment for the drug. You, in turn, passed this on to the supplier in Auckland.

[6] The second trip was on Wednesday, 5 June 2013. The supplier picked you up in Auckland, together with a friend, and took you to the Domestic Terminal. He purchased…

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 Kau Kau

Details

AGLC: R v Kau Kau [2013] NZHC 2688
Case: [2013] NZHC 2688
Decision Date: 15 October 2013

CaseChat Overview and Summary

Jacqueline Danielle Kau Kau appeared in the High Court of New Zealand in Auckland for sentencing after pleading guilty to multiple drug-related charges. The charges included dealing in and possessing methamphetamine for the purpose of supply, and possessing gamma-hydroxybutyrate (GHB), all in violation of the Misuse of Drugs Act 1975. Kau Kau had acted as a courier for methamphetamine shipments from Auckland to Christchurch. She admitted to transporting a total of 40 grams of methamphetamine on three occasions, and was also found in possession of a small amount of GHB.

The court had to determine an appropriate sentence, considering the nature and extent of Kau Kau's involvement, her culpability, and both aggravating and mitigating factors. The starting point was guided by the Court of Appeal decision in R v Fatu, which outlines sentencing guidelines for methamphetamine-related offences. Given the total quantity of methamphetamine involved, the court determined a starting point of four years' imprisonment. However, the court recognised that Kau Kau's role as a courier, without significant profit participation, lessened her culpability compared to other offenders. The court also considered mitigating factors, including Kau Kau's genuine remorse, early guilty plea, and her motivation to reform and provide for her daughter. These factors warranted a 50% discount from the starting point.

Consequently, the court imposed a sentence of two years' imprisonment, reduced to a term of 10 months' home detention, considering Kau Kau's time already spent in custody. The sentence aimed to hold her accountable, promote responsibility, and provide an opportunity for rehabilitation while allowing her to remain in the community to support her child. The court also imposed specific conditions, including residence at her sister's address, prohibition of drug use and association with co-offenders, and participation in a drug addiction program. The judge expressed hope that Kau Kau would take this chance to reform and avoid future criminal conduct.

Orders