R v Birkensleigh [2012] NSWSC 430

Supreme Court New South Wales

Medium Neutral Citation: R v Birkensleigh [2012] NSWSC 430 Hearing dates: 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 Category: Sentence Parties: Regina Jessica Tess Birkensleigh Representation: Counsel: Mr J McLennan (Crown) Mr E Johnston (Offender) Solicitors: Solicitor for Public Prosecutions James Fuggle Rummery File Number(s): 2011/329820

Judgment 1HIS 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 2The 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. 3The 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. 4The 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. 5In 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. 6By December 2008, the offender was using speed and cannabis on a daily basis. It was White who provided her with the drugs. 7The 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. 8There 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. 9White 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.