Atkins v Police [2015] NZHC 1836 (4 August 2015)

Last Updated: 14 August 2015

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2015-416-015 [2015] NZHC 1836

BETWEEN	LARA MICHELLE KIMIORA ATKINS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	4 August 2015
Appearances:	T Epati for Appellant S B Manning for Respondent
Judgment:	4 August 2015

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

ATKINS v NEW ZEALAND POLICE [2015] NZHC 1836 [4 August 2015]

[1] Ms Atkins pleaded guilty in the District Court to seven charges of offering to supply methamphetamine, two charges of conspiring to supply methamphetamine, a representative charge of supplying methamphetamine and a charge of being in possession of methamphetamine for supply. In addition, she pleaded guilty to three charges of attempting to pervert the course of justice.

[2] On 3 July 2015, Judge Bergseng sentenced Ms Atkins to an effective sentence of three years seven months imprisonment.¹ She appeals against sentence on the basis that the Judge failed to provide her with adequate discount in respect of mitigating factors.

Background

[3] The charges of perverting the course of justice related to three separate incidents between 13 August 1997 and 7 June 2001. On each occasion a search warrant had been executed at Ms Atkins’ home address and drugs had been found. She then approached associates and persuaded them to advise the police that the drugs belonged to the associates rather than to Ms Atkins. In each case the police accepted the associate’s acknowledgment of responsibility and charges against Ms Atkins were withdrawn. On one of these occasions, the associate was convicted on a charge of being in possession of cannabis for supply.

[4] The drugs charges were laid as a result of a police operation targeting drug dealing activities in the Gisborne area. This led the police to discover that between 1

April and 14 November 2014 Ms Atkins was supplying methamphetamine to several associates, including one of her children. The police analysed text data from Ms Atkins’ cellphone and discovered that she had supplied her son with methamphetamine. He, in turn, on-sold methamphetamine at street level. On occasions Ms Atkins would direct her son to one of her associates in the event that he needed more methamphetamine to sell. The text message data also revealed that Ms Atkins had offered to supply methamphetamine directly to the users of seven identified cellphone numbers.

[5] The police searched Ms Atkins’ address when they terminated the operation on 14 November 2014. At the address they found keys to a vehicle that was parked away from the address. When the police searched the vehicle they found the sum of

$4,911 in cash, together with 28 snaplock bags containing 5.25 grams of methamphetamine.

[6] It was not possible for the police to establish the precise quantity of methamphetamine that was involved in the transactions between Ms Atkins and her son and other persons. The police believe that, in total, up to 20 grams of methamphetamine may have been involved.

The hearings in the District Court

[7] Ms Atkins entered guilty pleas to the three charges of perverting the course of justice. She also entered a guilty plea to the charge of being in possession of methamphetamine for the purposes of supply. That charge was laid as a result of the methamphetamine that the police found in her possession on 14 November 2014. She then sought a sentence indication in respect of the remaining charges.

[8] On 17 April 2015, Judge Down conducted a sentence indication hearing.² He said he was prepared to provide an indication in respect of the starting points to be adopted in respect of the two sets of charges, and that he would also provide an indication regarding the discount to be given in respect of guilty pleas. He left the issue of additional discount to be given for other mitigating personal factors to be dealt with at sentencing.

[9] The salient points to be taken from the Judge’s sentence indication remarks

for present purposes are as follows:

[3] I have had the opportunity to read submissions from both the prosecution, (the Crown) represented today by the Crown solicitor himself and also from your counsel, Mr Rishworth. I have to say from the outset that in the submissions made as to the appropriate length of sentence and perhaps even type of sentence; both Mr Manning and Mr Rishworth are far apart. It is therefore necessary for me to try on a principled basis, to come to the appropriate conclusion as to what the appropriate start-point is in this case.

[4] I have read and heard from Mr Rishworth a number of mitigating matters on your behalf today and I acknowledge your family here today in support of you. In my view, all of those things will be of great importance to the final sentence that is imposed upon you, but I am not going to indicate today a final sentence. What I am going to indicate is the appropriate start- point for all of the offending taken together and taking into account the principle of totality. I am also going to give an indication as to what I think is the appropriate discount for the different offences.

[5] From that your counsel, Mr Rishworth will be able to advise you and will be able to give you a very good idea of what the final sentence will be, dependent on the view taken of personal mitigation, and I accept from the outset that there is significant personal mitigation to be taken into consideration here.

...

[19] As I have already indicated, I think that you probably do have significant personal mitigation and I agree with Mr Rishworth that for the drugs offences, discount of 25 percent is appropriate, and for the perverting offences, a discount of 25 percent is appropriate for your guilty pleas. So that is the indication, five years with those indicated discounts for guilty pleas and a further discount for personal mitigation.

[20] To be fair as I can to Ms Atkins, I am going to indicate that guilty pleas to all the remaining charges will result in 25 percent discount across the board of all offending. Ms Atkins, I am going to give you some time to talk to your lawyer and for him to speak to your family as well, and we will have you back via AVL at 2.15 this afternoon and you can tell me whether that is an indication that you accept or not.

[10] The Judge took an overall starting point on all the drugs charges of three years imprisonment. He then added an uplift of two years to reflect the charges of perverting the course of justice. He then indicated he would apply a discount of 25 per cent in respect of all charges if Ms Atkins was to enter guilty pleas to the remaining charges.

[11] Ms Atkins subsequently accepted the sentence indication, and subsequently appeared for sentence before Judge Bergseng on 3 July 2015. Judge Bergseng adopted the starting points selected by Judge Down, and applied 25 per cent discounts across the board to reflect guilty pleas. He then applied a further discount of three months, or five per cent, to reflect the remaining mitigating factors.

The appeal

[12] Ms Epati submits that the discount that Judge Bergseng applied in respect of mitigating factors other than guilty pleas was far too low. She contends that an overall reading of Judge Downs’ remarks confirms that he was of the view that a much greater discount was potentially available in respect of mitigating factors other than guilty pleas, and that Ms Atkins pleaded guilty to the charges on that basis. Ms Epati submits that Judge Bergseng erred by failing to give effect to the indication Judge Down had given earlier in relation to other mitigating factors. She contends that a discount of 15 per cent, or nine months, ought to have been applied to reflect these factors.

Decision

[13] The present case provides an example of the difficulties that can arise when a sentence indication is given by one Judge and a different Judge subsequently imposes the final sentence.

[14] Reading Judge Down’s remarks at [19] and [20], it is difficult to determine precisely what he intended the discount of 25 per cent on all charges to reflect. On one reading of his remarks the discount relates only to the guilty pleas. On another, however, it can be deduced that the Judge may have included within the 25 per cent some allowance for other mitigating factors.

[15] I accept Ms Epati’s submission, however, that, read as a whole, the sentence indication remarks suggest that a significant discount would be given at the time of sentencing to reflect mitigating factors other than the guilty pleas. I accept Ms Epati’s submission that Ms Atkins would have entered her guilty pleas based on that understanding. Given that scenario a discount of just five per cent would, in my view, be inadequate to give effect to Judge Down’s obvious intention.

[16] I accept the Crown’s submission that this was serious drug offending and that the starting points that the Judge adopted may be viewed as lenient. The important issue to be considered in the present case, however, is whether the procedure that Judge Bergseng adopted went awry because it failed to give proper effect to Judge

Down’s earlier indication. I have reached the conclusion that there is a real risk in the present case that that may have occurred.

[17] There are three separate factors in respect of which Ms Atkins could claim a discount by way of mitigation. The first is that she expressed sincere remorse to both the Court and the writer of the pre-sentence report. Secondly, she has significant childcare responsibilities in relation to both her 11 and 9 year old daughters. She is also a primary caregiver in respect of a 6 year old granddaughter who suffers from a significant disability. That factor must be balanced, of course, against the fact that she was obviously prepared to supply drugs to her older son.

[18] Furthermore, Ms Atkins had written to numerous agencies before she was sentenced seeking to avail herself of rehabilitation courses offered by those agencies. Unfortunately, none of the agencies was able to offer rehabilitative intervention until such time as Ms Atkins had served her sentence. Nevertheless, the fact that she was prepared to take these steps means that she must be given some credit for rehabilitative efforts.

[19] In cases of serious drug offending, personal circumstances are likely to be given less weight than would be the case in respect of other types of offending. Even giving effect to that principle, however, I am satisfied that a discount of just five per cent was not sufficient to recognise the mitigating factors referred to above. I consider a discount of at least ten per cent, or six months, ought to have been applied to reflect those factors. Although this does not alter the sentence greatly, an issue of principle arises. As a result, this Court is entitled to disturb the sentence imposed by Judge Bergseng.

Result

[20] The appeal is allowed on the charges of being in possession of methamphetamine for supply and supplying methamphetamine. On those charges the existing sentences of three years seven months imprisonment are quashed. In their place, I impose sentences of three years four months imprisonment. Those sentences are to be served concurrently with each other and with all the other

_{sentences that the Judge imposed.}

Lang J

Solicitors:

Crown Solicitor, Napier