R v Birkensleigh [2012] NSWSC 430 (2 May 2012)

Last Updated: 23 May 2012

This decision has been amended. Please see the end of the decision for a list of the amendments.

Supreme Court New South Wales

Case Title:	R v Birkensleigh
Medium Neutral Citation:	[2012] NSWSC 430
Hearing Date(s):	1 May 2012
Decision Date:	02 May 2012
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Sentenced to imprisonment for 18 months. The sentence is to date from 2 November 2010 and expire on 1 May 2012.
Catchwords:	CRIMINAL LAW - sentence - accessory before the fact to robbery - robbery of drug dealer - purchase and provision of materials to bind and gag victim - victim robbed of substantial quantity of drugs - offender and robber fled the State and lived off the proceeds
Legislation Cited:
Cases Cited:
Texts Cited:
Category:	Sentence
Parties:	Regina Jessica Tess Birkensleigh
Representation
- Counsel:	Counsel: Mr J McLennan (Crown) Mr E Johnston (Offender)
- Solicitors:	Solicitors: Solicitor for Public Prosecutions James Fuggle Rummery
File number(s):	2011/329820
Publication Restriction:

JUDGMENT

1. HIS HONOUR: The offender, Jessica Tess Birkensleigh, was found guilty by a jury of an offence of robbery. The Crown case against her was not that she committed a robbery herself; rather that she was an accessory before the fact to a robbery committed by her co-offender, Rodney Boyd White. The maximum penalty that is applicable is imprisonment for 14 years.

Background

2. The offender was born in September 1986. She was living with her family on the Gold Coast when she left home at the age of 16. It would seem from the evidence I heard in the sentence proceedings that she was rather headstrong at that time and had a strained relationship with her mother. She moved in to a friend's home. Her family subsequently moved to Victoria. She was in a relationship with a man from the age of 17, but tragically he died in a motorcycle accident just before the offender's 21st birthday in September 2007.

3. The offender was, understandably, grief stricken. Her family were not around to support her. Rodney White had been a friend of her fiancée. He and the offender became closer and commenced a relationship from about January 2008. They moved to Victoria to live with the offender's family at about this time. The family tolerated Mr White but did not approve of him. The offender's mother described him as "bossy", "self-centred" and a person "who wouldn't take no for an answer". In another sentencing judgment I have described White as a most belligerent, arrogant and manipulative person.

4. The offender said in her evidence that she was attracted to Mr White. He always had a lot of drugs and a lot of money and because of this, she believed that he was a drug dealer. There was something about his lifestyle that attracted her. She said she had always smoked cannabis but during the relationship she became addicted to speed. She said that the relationship with Mr White was "good when it was good" but they had their ups and downs. He was violent at times, physically and emotionally; usually when he had consumed too much drugs. He gave evidence in the trial that he used half a gram to a gram of methylamphetamine a day (T928.40). He also used cocaine. I do not know how truthful that account is because Mr White's evidence was of very dubious credibility. The offender said that he was very aggressive when he was angry and seemed unable to control himself. Her mother confirmed that he had a tendency to aggression.

5. In September 2008, White asked the offender to move to Queensland with him. He told her that he had problems with his liver and needed a transplant. Treatment was available for him in Queensland. He also wished to be closer to his children who lived in that State. The offender agreed. She quit her job and the couple moved to Chinderah, just south of Tweed Heads, where White owned a cabin in a caravan park. Incidentally, White admitted in the trial that his claim that he needed a liver transplant was a lie.

6. By December 2008, the offender was using speed and cannabis on a daily basis. It was White who provided her with the drugs.

7. The offender knew Mr Saaid ("Sid") Zaiter as an associate of White's. Mr Zaiter lived at Main Beach on the Gold Coast. She said in her evidence in the sentence proceedings that she thought that he was a drug dealer as well. She thought this because he was involved in the "drug scene" and she heard people saying that if ever you needed something you could go to Sid. She heard similar things said about White.

8. There was evidence in the trial to the effect that Mr Zaiter was a major participant in the illicit trade in drugs. There were suggestions that he transported drugs from Sydney to the Gold Coast secreted within motor vehicles.

9. White himself admitted in evidence in the trial that he was involved in the supply of drugs but maintained that this had only occurred on a single occasion, in August 2008, when he brokered the sale by Mr Zaiter of a pound of speed for which he, White, received $15,000 from the proceeds.

Facts

10. In December 2008, Mr White made various attempts to arrange a meeting with Mr Zaiter, ostensibly to obtain from him three pounds of methylamphetamine.

11. At the time these events were occurring, the offender and White were planning to move back to Victoria. They were in the process of packing up their furniture and belongings in the cabin, and placing various items in a storage shed rented for Mr White in Casino.

12. The meeting with Mr Zaiter was first scheduled to take place on the evening of 14 December. There was evidence that in anticipation of this meeting, Mr White put out a false story that he and the offender had separated. There was a text message to the offender asking her to repeat this story. The Crown contended that this was an indication that there was a plan to rob Mr Zaiter because anyone who tried to find Mr White after such a robbery might well try to locate him via his girlfriend.

13. The meeting did not take place on 14 December. There was also evidence that Ms Birkensleigh had plans to fly to Melbourne on that day but missed her flight.

14. The meeting with Mr Zaiter was re-scheduled for the afternoon of 15 December at Mr White's cabin at Chinderah.

15. The offender set herself an alarm/reminder on her mobile phone for the morning of 15 December. The reminder read "Zip ties tape". Although she did not give evidence in the trial, her evidence in the sentence proceedings was to the effect that Mr White had asked her to purchase these items for him.

16. The offender and White arranged to stay with friends in Casino, Stephen and Sarah Orams. The Orams returned from a holiday at Coffs Harbour around the middle of the day on 15 December and the offender and White turned up at their home a short time later.

17. In the early afternoon, Mr Orams agreed to take the offender to the shops in Casino. She went to a hardware store and purchased a packet of 70 zip ties of varying lengths. It seems highly likely that she also purchased some tape. Later that afternoon, Mr Orams and Mr White went to the cabin at Chinderah. The purpose was to do some more packing but also for Mr White to meet with Mr Zaiter. However, Mr Zaiter did not attend.

18. The meeting was re-scheduled for 16 December. That morning, Mr Orams drove Mr White from Casino to Chinderah. They stopped in Lismore on the way and picked up Mr Ricky Humphries. Mr Humphries understood that Mr White was intending to engage in a drug deal and he was to back him up in the event that there was trouble.

19. Mr Zaiter attended the cabin at some stage in the early afternoon. A violent fight took place between Mr White and Mr Zaiter. Humphries assisted White. It culminated in Mr White bashing Mr Zaiter either to death, or into unconsciousness and then suffocating him.

20. The ensuing events are rather complicated but they are in large part irrelevant to Ms Birkensleigh's offence. Suffice to say that Mr Zaiter's body was subsequently found on the floor of the cabin. His hands were bound behind his back with one or more zip ties and there was tape over his mouth and nose, making breathing impossible. The car in which he arrived at the cabin was taken to a remote location where the interior was searched and approximately three pounds of methylamphetamine was discovered and removed. The car was then completely destroyed by fire.

21. Soon after the events in the cabin, White sent a text message to the offender, "Jobs done ok on way back now". She replied, "Be safe, I love you oxoxox".

22. In an attempt to prevent detection, or to deflect a police investigation, White asked that the people involved in the events get rid of their mobile phones. At his request, the offender went to a mobile phone store in Casino on the afternoon of 16 December 2008 where she purchased four new phones. Ms Orams accompanied her. On the way to the store, the offender told Ms Orams, "Something's happened and I think Rob's bashed someone".

23. On the morning of 19 December, Mr Orams took the offender to a travel agency in Casino where she asked to purchase a one-way ticket on the first available flight to Melbourne. The next available flight was the following morning.

24. The offender flew to Melbourne from Ballina on the morning of 20 December. White hastily left the area as well and found his way to the home of friends at The Rock, near Wagga Wagga on 21 December. Later that day, Ms Birkensleigh and some members of her family arrived and took White with them to Victoria.

25. White and the offender were arrested by police at Kamarooka near Bendigo on 4 September 2009. They were extradited to New South Wales.

26. Victorian police uncovered a considerable amount of expenditure by White and the offender between December 2008 and September 2009. There was evidence in the trial, which was not disputed, that they had bought various items such as accommodation, motor vehicles and a block of land. The total sum expended, all in cash, was in the order of $132,000. To cover their trail, both White and the offender had various identity documents in false names that they used in many of the transactions.

27. It was the Crown case that these purchases of goods and services were made with money acquired through the distribution by White of the drugs that he had stolen from the deceased. There was evidence that on the night of 17 December 2008, White had spoken of his proposal to dilute the drugs in such a way that would yield a quantity with an ultimate street value of about half a million dollars.

28. In summary, the Crown case, which was obviously accepted by the jury, was that Ms Birkensleigh knew that White was planning to rob the deceased. She assisted him in that endeavour by acquiring and providing him with the zip ties and the tape. Zip ties could really only have had one possible use in a robbery venture of this kind and that would be to bind the wrists or ankles of the victim. Tape could be used for binding, gagging or both. I am satisfied that the offender would have appreciated this. It must, therefore, have been apparent that considerable force and violence was a real prospect if the robbery was to be carried out as planned, or anticipated.

29. The offender must have been aware that the object of the robbery was Mr Zaiter's drugs; no other conclusion is realistically open. I am satisfied that something in the order of three pounds of methylamphetamine was in fact taken. To put it into context, that is an amount in excess of the large commercial quantity prescribed in legislation concerned with drug trafficking. Those caught supplying such a quantity face a sentence of up to life imprisonment. The evidence does not establish that the offender was aware, prior to the robbery, that the drugs stolen would be of such a quantity. But she must have been well aware afterwards that White had considerably more money available to him as a result of what she had assisted him to do.

30. A countervailing consideration in terms of the objective seriousness of the offence is that I am satisfied that the offender was subject to the domineering and manipulative personality of White. Mr Johnston, counsel for the offender, acknowledged that she must bear responsibility for her own actions, but submitted that this was a relevant consideration and reduced the level of her moral culpability to a degree. I accept that submission.

Subjective features

31. The offender was born in September 1986, as I have mentioned, and was aged 22 at the time of the offence and is now 25.

32. She has a criminal history that is limited to relatively minor drug possession and related offences in Queensland in December 2006 and March 2007.

33. I have already set out some detail of her background. Her family, with whom she has been living since she was released from custody, comprises her parents, her brother, and her niece who is severely disabled and requires around-the-clock care. She has another brother who resides in Tasmania.

34. The offender remained in custody, having been refused bail, following her arrest until she was discharged at the conclusion of the committal proceedings on 16 March 2011. She said that being in gaol was the hardest time of her life. All of her family were in Victoria and they had limited opportunities to visit. She came to realise when she was in custody and away from prohibited drugs that she had become addicted. When her thinking became clearer she realised that she had not been leading the sort of life she wished to lead. She had always had full-time employment but her life of drug use with Rodney White was the antithesis of this and made her realise that she needed to change.

35. The offender seems to have enthusiastically sought out and engaged in work in the custodial environment. She was eventually given jobs with greater responsibility. A "Work Readiness Assessment" report of 2 February 2010 describes her as a punctual, reliable, compliant worker who interacted well with others. She is also described as being "well disciplined", with good manners and attitudes; in short, "an excellent worker".

36. Ms Anne Maria Folinazzo, the offender's mother, gave evidence that her daughter did not brood while in gaol. She said it was like she had woken up to herself and decided to get on with her life.

37. The offender maintained contact with Rodney White by way of letters and telephone calls after going into custody. However, she claimed that after she was provided with the brief of evidence in about April 2010 and read it, she came to realise the detail of what he had been up to and she decided to cease any contact. She initially said that it was only then that she learned that he had killed someone. This is difficult to accept, given that she was arrested on 4 September 2009 and charged with being an accessory after the fact to a murder committed by White. She subsequently sought to explain that she did not recognise the name of the deceased, as she only knew Mr Zaiter as "Chucky". Overall, I found the offender's evidence to be credible, but on this aspect it was doubtful. I do, however, accept that she has not had any contact with White for about two years and does not intend to resume contact in the future.

38. It appears that the offender now has a solid relationship with her family, including her mother who seems to be particularly supportive of her, notwithstanding the difficulties they have experienced in the past. She has a boyfriend, to whom she is engaged, but she said that she has not moved out to live with him because she wants to be able to play her role in caring for her disabled niece. The boyfriend has been living with the offender's family and Ms Folinazzo spoke favourably of him.

39. Almost immediately after being released from custody in March last year the offender obtained employment, both a full-time and a part-time job. Her mother explained that the offender had debts that had accrued on her credit card from the time before she went into custody and she made it a priority to put her financial affairs in order. It would seem that aside from the period of time in which she was with Rodney White, the offender has demonstrated a strong work ethic. An illustration of this was when she was refused legal aid for her trial and people suggested that she should withdraw from employment so as to qualify. She declined to do so.

40. The offender currently works for a firm of solicitors in Melbourne, mainly as a receptionist but she also assists with general administrative tasks. A testimonial from one of the senior lawyers at the firm speaks very positively about her worth as an employee. It is said that she has been open and forthright about the events of recent years and, if she obtains her liberty, she has a bright prospect for advancement within the firm.

41. Her plans for the future include pursuing an Advanced Diploma of Legal Practice at TAFE. She wishes to obtain employment as a paralegal. She also hopes to marry at some stage and have children.

42. I am satisfied that, aside from matters arising from her involvement with Rodney White, the offender has been a person of good character. Her prospects of rehabilitation are strong and there appear to be no reason to think that she will have any further involvement with the criminal justice system. I cannot, however, take into account that she is remorseful. She does not claim to be. She quite candidly said in her evidence that while she accepts the verdict of the jury, she does not agree with it.

43. Another matter for which the offender should get credit is the manner in which the trial was conducted. It was evident that there was a lot of co-operation between her legal representatives and the prosecuting authorities on the question of agreeing to facts, and consenting to statements being read and evidence being led. This obviated the need for the Crown to call a considerable number of witnesses and the associated expense. It also served to substantially shorten the time taken in the presentation of the evidence.

Other considerations

44. The offence for which Ms Birkensleigh is to be sentence is somewhat unusual. The Judicial Commission sentencing statistics for the period April 2004 to March 2011 contain only three instances of robbery by way of aiding and abetting, or being an accessory before the fact. Such a small database is of no utility whatsoever. There would undoubtedly be many more instances of accessories before the fact being recorded in the statistics as robbery itself, given that such a person can be, as the offender was, indicted as a principal. In any event, the primary benchmark against which to assess any particular sentence is the maximum penalty prescribed by Parliament, not the sentences that have been imposed in other circumstances on other offenders.

45. The offence is of quite some seriousness. The additional feature that it involved one drug dealer robbing another drug dealer, adds emphasis to the importance that general deterrence must play in the assessment of the appropriate sentence. Other purposes of sentencing - punishment, denunciation, making the offender accountable for her actions - have a role to play; so too does promoting the rehabilitation of the offender.

46. I am satisfied that no sentence other than one of imprisonment is appropriate. The contrary has not been suggested.

47. The offender was in custody, as I have mentioned, from 4 September 2009 until 16 March 2011. I was told that this amounts to a period of 558 days, a little over 18 months.

48. Mr Johnston submitted that the time his client had served to date was sufficient punishment. In other words, I should backdate the sentence so as to permit the offender's immediate release to parole. It was then submitted that I should find special circumstances and thereby allow for a longer period on parole. If I was to accede to the latter submission, it would have the result that I would be imposing a longer total term than would otherwise be the case. In any event, I do not believe that the offender requires, or would benefit from, parole supervision.

49. The Crown Prosecutor's submission was that the seriousness of the offence warranted there being a further period of custody.

50. Having regard to the seriousness of the offence, as I have found it to be, and the very favourable subjective case presented by the offender, I have concluded that I should impose the following sentence.

Sentence

Convicted.

Sentenced to imprisonment for 18 months. The sentence is to date from 2 November 2010 and expire on 1 May 2012.

I decline to set a non-parole period because there would be no utility in doing so.

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Amendments

07 May 2012

Incorrect name removed

Paragraphs: 38