The King v Marcella Patricia May Griffen
[2023] NZHC 3800
•13 December 2023
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2021-088-2754
[2023] NZHC 3800
THE KING v
MARCELLA PATRICIA MAY GRIFFEN
Hearing: 12 and 13 December 2023 Appearances:
B O’Connor and A Goodwin for the Crown B Hunt for the Defendant
Judgment:
13 December 2023
ORAL JUDGMENT OF BECROFT J
Solicitors/Counsel:
Marsden Woods Inskip Smith, Whangarei B Hunt, Hobson Chambers, Auckland
R v GRIFFEN [2023] NZHC 3800 [13 December 2023]
Disputed facts hearing
[1] This is a disputed facts hearing arising out of Ms Griffen’s pleas of guilty to three serious drug-related charges:
(a)Importation of methamphetamine, a single charge, carrying with it a maximum penalty of life imprisonment.1
(b)Conspiracy to import methamphetamine relating to two separate importations, that carrying a maximum penalty of 14 years’ imprisonment.2
(c)Participation in an organised criminal group, carrying with it a maximum sentence of 10 years’ imprisonment.3 That relates to two separate importations of methamphetamine.
[2]Ms Griffen, you do not need me to tell you how serious these charges are.
[3] I mean no criticism or disrespect to counsel, but the estimates of one hour from Ms Hunt and for three hours from Ms O’Connor have proved somewhat illusory. The best part of a day has been given to this hearing.
[4] That said, it has given me a very clear understanding of, and has provided detailed knowledge about, what is known as Operation Freya – and also the roles in that operation of both Mr Gillett, to whom I gave a sentencing indication today, and of Ms Griffen, who was for a time his partner.
[5] In this hearing I have heard evidence from Detective Senior Sergeant Berry, who has provided a detailed overview of Operation Freya and produced much of the documentation relied on by the Police to establish the case against Ms Griffen and her partner. I have also heard from Ms Griffen, herself, in amplification of her affidavit. Both witnesses were cross-examined.
1 Misuse of Drugs Act 1975, ss 6(1)(a) and (2)(a).
2 Sections 6(1)(a) and 6(2A)(a).
3 Crimes Act 1961, s 98A.
What is in dispute?
[6] There were initially said to be two areas of disputed material facts. They would have had great significance for sentencing. As it happens, only one now requires resolution.
First area of dispute: quantum of methamphetamine involved
[7] The first area of dispute is the quantum of drugs involved. In respect of the single importation of methamphetamine, the total amount seized by Customs was 4.9 kilograms. That has been analysed as having a 69 per cent purity rate. The Crown accepts that the amount of methamphetamine thereby imported reduces to 3.3 kilograms.
[8] In respect of the other four importations, those amounts are 1.056 kilograms, 478 grams, 755 grams and 1.013 kilograms respectively. That would make a total, including the separate gross amount intercepted by Customs – that is the 4.9 kilograms (in paragraph [7]) – of 8.3 kilograms.
[9] There is still the option of those four other amounts either being analysed or the Crown agreeing as to their purity, which would bring down the “net” amount, as it were, of methamphetamine. In a sense, it matters little. On any analysis, the total quantum of methamphetamine involved in these three charges is well above the 2- kilogram amount referred to in Zhang v R as engaging band 5, where the range is 10 years to life imprisonment.4
[10] In that way, the quantum is no longer in dispute. But the amount may be refined downwards as a result of further discussion between the defence and the Crown.
4 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
Second area of dispute: Ms Griffen’s role in the offending
Introduction
[11] That leaves to be resolved the second disputed area, which is Ms Griffen’s role in the offending.
[12] By way of brief summary, whatever her role actually was, which I will turn to in a moment, it is clear she was in a relationship with Mr Taioma Gillett who was the true “middleman” in this operation.
[13] Given her assertions of repetitive, serious, and chronic violence by him against her, the issue as to her role is really to what extent she was a “middleman” herself in a voluntary and deliberate way, and to what extent she was under the influence or thrall of Mr Gillett who was violent and manipulative.
The law
[14] When I put it that way, it could be said to be a personal mitigating factor, and to a degree it is. But, as Zhang makes clear, where there are personal mitigating factors relating to a person’s offending, and by inference their role in it, it is for the Crown to exclude any such mitigating factor raised by the defence.5
[15]Section 24 of the Sentencing Act 2002 is clear on that point. Section 24(2)(a)-
(e) sets out the relevant principles:
(a)the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:
(b)if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial:
(c)the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:
5 See Zhang, above n 1, at [127].
(d)the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender’s part in the offence:
(e)either party may cross-examine any witness called by the other party.
[16] Here, perhaps a little reluctantly, Ms O’Connor, as I understand it, accepts that the prosecutor must prove beyond reasonable doubt the existence of any disputed aggravating factor, and must also negate beyond reasonable doubt any disputed mitigating fact raised by the defence that relates to the nature of the offence or Ms Griffen’s part in it.
The evidence
[17] Having heard all the evidence, I can quickly conclude that, in the general sense, Ms Griffen’s actions in respect of the first single charge of importation put her in what might be called a “middleman” role, if only because of her association with Mr Gillett and their joint activities.
[18] Reinforcing that conclusion are her pleas to the charges of conspiracy and of being a member of an organised criminal group – which both relate to very similar importations as the one importation charge to which she has pleaded here. To that extent there is a cross-propensity argument that the charges to which she has also pleaded point towards an overall role that was more than just what might be called a mere “mule”, or to use the Police jargon, a “catcher”.
[19] For the specific importation charge, on 9 June 2021 she went to the Westfield mall at Albany and is clearly seen paying a bill which allowed release of the package containing methamphetamine from the airport. She accepts that was what she was doing. She also accepts she photographed the receipt for that payment and would have had a role in forwarding it to the freight forwarding agency.
[20] On 16 June, at the Otaika shopping centre, just at the southern part of Whangarei, she was clearly observed entering the Postbank shop and she accepts she did that so that she could pay a further amount to ensure release of the methamphetamine.
[21] She is also observed and photographed with others at a nearby carpark when the methamphetamine was uplifted by Mr Gillett. At the carpark, she would have seen the package being moved from Mr Gillett’s blue vehicle and transferred to a silver Subaru. That Subaru was then driven, it seems by Mr Kerr, to his house in Ruakākā with Mr Gillett and Ms Griffen. She knew full well what was going on. She knew that what was being imported was methamphetamine. Her role in it was consistent with someone who was at the middle level, as I say by virtue primarily of her association with Mr Gillett.
[22] There is other evidence. What appears to be her pink cell phone was found in a car that she had purchased. She says the car is actually, for all intents and purposes, Mr Gillett’s. The records of that cell phone were all produced in evidence. These records suggest combined use of the phone with Mr Gillett. Clearly the phone was sometimes used to contact members of the conspiracy, including the ringleader.
[23] There was much other documentation that was found in her house when the Police visited because of an unrelated shooting. All the documentation points to other similar drug importation transactions. For instance, there were false driver licences for Mr Gillett, using his photo but with other names. Ms Griffen was aware of that.
[24] Indeed, there was an intercepted and recorded telephone conversation with UPS postal that clearly has Ms Griffen, in the background, providing information for Mr Gillett in respect of another transaction.
[25] Ms Griffen struck me as a bright, intelligent, and astute woman. She is to be taken by her pleas, together with all the other evidence, which is significant, to be sure of what was going on for that importation. She was associated with Mr Gillett to do it, and was apparently happy to be with Mr Kerr, the ringleader.
[26] She accepts that on another occasion, when asked by Mr Kerr, she made a payment to ensure the release of a package that she says she understood contained motorcycle parts. When I pushed her on that point she accepted she may have turned a blind eye to that knowing that she was being asked to make the payment but with a pretty clear suspicion about whether it really was for motorcycle parts at all.
[27] I could go further. However, I am satisfied that all the evidence provided by the Police points towards actions consistent with Ms Griffen being a “middleman”, or perhaps more appropriately, a “middleperson”.
[28] All that said however, her plea all along has been that she was in a violent relationship with Mr Gillett: that she both loved and hated him and that she was regularly beaten and seriously so – on at least one occasion medical treatment was necessitated. On another occasion his violence caused her to flee to a nearby church to seek refuge.
[29] All that is asserted to be the real reason for her offending. This is a matter, as I have said, that I have concluded needs to be disproved beyond reasonable doubt by the Crown.
[30] The Crown have raised significant concerns about your evidence, Ms Griffen. For instance, “Ms Griffen has previous convictions”. On two previous occasions, in the context of a disastrous relationship, you have blamed men for manipulating you into what appears to be property offending, just as you are seeking to do here with Mr Gillett. You have never made a complaint to the Police about Mr Gillett’s treatment of you in any way. That is perhaps not unknown for women in a grip of a battering relationship. You have provided no medical evidence today in terms of your visit to the Lincoln Road A&E but you have pointed to a scar on your forehead which you say was caused by Mr Gillett’s violence.
[31] You are, in your own way the Crown points out, a strong woman and you have been quite able to tell Mr Gillett on at least one occasion “fuck you”. On another occasion you called him an “asshole”. It appears that none of your physical injuries were immediately obvious to others – somewhat puzzlingly, not even to your mother. But you say that was because Mr Gillett is no fool and knew how to injure you in a way that would not easily leave marks or bruises noticeable to others.
[32] Also, when your parents were at the premises, how is it they were unaware of Mr Gillett’s violence? You say they would not have seen it because the violence was restricted to taking place in the garage.
[33] Also, the Crown says it is clear that you have taken a photograph (of the receipt) voluntarily. You have provided information over the phone.
[34] In short, the Crown says there must be real reservations about the extent to which you really were acting because of threats of violence. In my view, they are all legitimate submissions.
[35] On the other hand, I have had the opportunity to see you and observe you giving evidence for several hours. I am not an expert in assessing body language. Your tears seemed genuine and restricted to the times you were talking about “reliving” the violence. But equally, they could have been tears of a manipulative woman facing prison – with the enormity of that hitting home. I do not know. But it seemed, assessing you as best I can, that you were fundamentally telling the truth about the fact that you were in a violent relationship.
[36] There are two texts from you to Mr Gillett that could hardly be said to be self- serving because you had not been charged at the time. They refer to Mr Gillett’s violence. I place particular reliance on them. They are both to be found in Exhibit 16. On 4 June 2021, 19:05.03 words to the effect “I don’t care if you beat me up”. And on 6 June 2021, 16:03:24 “no need to beat me up if you don’t like me”.
[37] You also talk about being “luggage in the relationship” and you also talk about “how difficult you are finding it” by way of text. Those are all matters that, as it were, independently support your allegation.
[38] Also, I see the scar on your forehead. I do not know where it came from but it is at least consistent with what you say.
[39] There is no evidence of you receiving any money or playing a role that would justify any payment, or evidence that you had any authority to direct others in the operation. That, too, is consistent with simply acting as Mr Gillett asked you to.
[40] You admit that you received methamphetamine, some grams at a time. I take it this was when you wanted or needed it to support your habit.
[41] All of your evidence, in one sense, is consistent with what we know of “battered woman” syndrome. This is something that Ms O’Connor, herself, needs no reminding of as a seasoned Crown prosecutor. Your own words in response to her question about whether you wanted the relationship to end are insightful. Your answer was “I did and I didn’t”. That is quite consistent with someone in a violent relationship who both “loves and hates” her partner. And such that is known about the “battered woman” syndrome shows that a twisted sense of love and loyalty can develop in the face of significant long-term violence.
Conclusion as to your role
[42] I have reflected on your evidence over the last two days. On the balance of probabilities, I am prepared to accept it. I think you were involved in this criminal offending primarily because of your relationship with Mr Gillett. But for that relationship, you would never have offended.
[43] The Crown have not anywhere near excluded beyond reasonable doubt that you were in a battering relationship. I accept that would be very hard for the Crown to do so. The Crown has raised questions about the relationship. But as I say, I think it more likely than not, that was the main reason and explanation for your involvement.
[44] While you may fall within the “middleperson” definition, I think in your case that is largely technical. That which you did, you did for Mr Gillett and on his behalf and because of the threats of violence. I think that considerably reduces your role in terms of the middle category – of “significant” involvement. And it probably gets down to merging with the lowest category or band – “lesser”.
[45] In my view, you were honest when you said you “did what you did”, both because of the fear of the “bash” and also to get drugs. And you were honest when you said, “rather than the thrill of being involved in a big-time activity”, you were the whole time scared of the consequences which are going to be life-changing for you.
Next steps
[46] I am not sure that I can go further now than making these findings. I certainly note, given all that I have heard in the last two days, that it would seem appropriate that I sentence you. I will ensure that is passed on to the Court schedulers. Probably, that sentence will take place at a similar time with Mr Gillett. But it may be safer for you to be kept away from him.
[47] I note that you are receiving treatment. Mr Gillett also wishes to do so. Next year we will need to decide, after the Crown has reflected on the matter, whether the sentencing should be postponed to enable treatment to be completed. I can give no assurance about that. I will be interested in the Crown’s view. The Crown, in turn, will be interested to know what progress you have made, and are making, and how long the treatment is predicted to last.
[48] There are more comments that I could make. Given that I may not be the sentencing Judge, I should perhaps say no more because I may “tie the hands” of that sentencing Judge.
[49] However, it would not be inappropriate for me to say that, given my findings in this hearing, the twelve-and-a-half- to thirteen-year starting point I indicated for Mr Gillett self-evidently cannot apply to Ms Griffen. But I should also say that Mr Hokai’s starting point of eight years’ imprisonment, given the amount that was involved here significantly outweighs Mr Hokai’s 1.9 kilograms, means the starting point could not be as low for Ms Griffen. More than that, I cannot and should not say.
[50] This matter is formally adjourned on existing bail conditions to 9 February 2024 for callover. Mr Gillett’s case, if he pleads guilty, will be remanded to that date also. On that date, if I am the sentencing Judge, I will hear the two applications to postpone sentencing until completion of treatment. Otherwise, those decisions will be in the hands of the Executive Judge for Whangarei.
[51]Ms Hunt and Ms Griffen have permission to appear by VMR.
Becroft J