Clark v R
[2020] NZCA 641
•11 December 2020 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA269/2020 [2020] NZCA 641 |
| BETWEEN | MICHAEL JOHN BENJAMIN CLARK |
| AND | THE QUEEN |
| Hearing: | 9 November 2020 |
Court: | Brown, Duffy and Nation JJ |
Counsel: | E A Hall for Appellant |
Judgment: | 11 December 2020 at 10.00 am |
JUDGMENT OF THE COURT
AThe appeal against sentence is allowed.
BThe sentences of six years and two months’ imprisonment imposed on the three offences of possession of methamphetamine for supply and the offence of conspiring to supply methamphetamine are set aside.
C On each of those offences a concurrent sentence of five years’ imprisonment is imposed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Duffy J)
The appellant, Michael Clark, pleaded guilty in the District Court and was convicted of three charges of possessing the Class A controlled drug methamphetamine for supply, one charge of conspiring to supply methamphetamine and one charge of possession of an offensive weapon.[1] He received concurrent sentences of six years and two months imprisonment on each of the offences involving methamphetamine.[2]
[1]See R v Clark [2020] NZDC 4554. There was also an additional charge of possession of a methamphetamine pipe which related to earlier offending for which Mr Clark was convicted and discharged. This forms no part of the appeal.
[2]Mr Clark also received a concurrent sentence of 12 months’ imprisonment for the offence of possession of an offensive weapon. There is no appeal against this sentence.
Mr Clark now appeals against those sentences on the basis: the starting point adopted was too high; insufficient recognition was given to mitigating factors; the sentence lacks parity with others involved in the offending; and the Judge erred by failing to apply the correct sentencing methodology.
The offending
Mr Clark was found to be in possession of a total of 583 grams of methamphetamine and to have conspired with others to obtain a further 137 grams of this drug. The offending covers two separate time frames.
On 1 February 2017 Mr Clark was driving with an associate and his partner, Melissa Alberts, near Ashburton when he was stopped by police. Mr Clark produced and surrendered a machete. The police, after noticing a glass pipe in the vehicle, undertook a search which uncovered $6,000 in cash, a toilet bag containing electronic scales, a cell phone, empty zip lock bags, empty pill containers, a small plastic spoon and two zip lock bags containing a total of 14 grams of methamphetamine. A second bag was found containing a plastic container holding 149 grams of methamphetamine.
In December 2017 the police uncovered further offending by Mr Clark, which came to light during a covert operation targeting a commercial supply of methamphetamine in the Wairarapa area. Intercepted communications from this operation indicated that Mr Clark, as well as two other individuals Chanel and Wayne Namana, had been receiving methamphetamine from an Auckland based dealer Michael Hanna to then on-sell. On 13 December 2017 Mr Clark arranged to pay Mr Hanna for 420 grams of methamphetamine that had been previously supplied to him. Mr Clark met with one of Mr Hanna’s associates, a Mr Crozier, and handed over $53,000 in cash for that purpose.
Also on 13 December 2017, Mr Clark phoned Mr Hanna to discuss further payment of the debt owing and for more methamphetamine to be supplied to him. They arranged for Mr Crozier to deliver more methamphetamine to Mr Clark, however, while doing so Mr Crozier was stopped and searched by police. He was found in possession of 137 grams that was intended for supply to Mr Clark. Mr Clark was subsequently arrested later the same day. He was found in possession of 19 grams of methamphetamine and $33,870 in cash.[3]
[3]Neither this methamphetamine nor the cash appear to form the basis of any of the charges faced by Mr Clark.
Following Mr Clark’s arrest, the police found text message data on his cell phone that indicated between 9 and 13 December 2017 he was both supplying methamphetamine to his own customers and to dealers to on-supply to their customers.
The sentencing in the District Court
On 11 March 2020 Mr Clark came up for sentence before Judge Hobbs, who had earlier provided him with a sentencing indication.[4] Mr Clark essentially challenged the outcome of the sentencing indication, which led to the Judge working through the sentencing process again.
[4]R v Clark, above n 1, at [4]. Mr Clark made it clear he wished to present further information to the Court in the hope it would reduce the end sentence to less than what had been indicated.
In setting the starting point the Judge followed the approach outlined in Zhang v R; he took account of the quantity of methamphetamine involved and the role Mr Clark played in the offending.[5]
[5]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
The 583 grams of methamphetamine found in Mr Clark’s possession coupled with the further 137 grams that he had arranged to purchase caused the Judge to place Mr Clark in the lower end of band four, which indicates an available starting point between eight and 16 years. The Judge had regard to the descriptors of “leading” “significant” and “lesser” which were referred to in R v Zhang as helpful categorisations of the roles offenders play in methamphetamine operations.[6] The Judge rejected Mr Clark’s contention that he had played a “lesser” role, choosing instead to categorise it as “significant”. This was based on Mr Clark having obtained “multiple ounces” of methamphetamine from a high-level dealer (Mr Hanna) who was found in possession of 30 kilograms of methamphetamine on arrest, and text message data which indicated Mr Clark was active in on-supplying methamphetamine to his customers and to other dealers for them to supply to their customers.[7]
[6]At [126][127]; these descriptors are slight modifications of those found in the Sentencing Council (UK) Drug Offences: Definitive Guideline (2012).
[7]R v Clark, above n 1, at [19].
Accordingly, the Judge concluded that: (a) Mr Clark was engaged in commercial dealing; (b) much of the methamphetamine found in his possession was not for personal use; and (c) the submission that Mr Clark had little awareness of the scale of the illicit operation was rejected.[8] The Judge adopted a starting point of nine and a half years’ imprisonment, which reflected the seriousness of all the offending including the possession of an offensive weapon charge.[9] The outcome was the same as that given in the sentencing indication.
[8]At [20].
[9]At [23].
The Judge then turned to the second stage of the sentencing process. There were no aggravating factors. As to mitigating factors, the Judge accepted Mr Clark was addicted to methamphetamine, and that addiction may have been the “catalyst” for the drug-related offending.[10] However, the Judge considered the offending went “beyond what was required of an addict to sustain his own addiction”, and there was nothing to suggest that Mr Clark’s addiction “was so severe it impaired [his] ability to exercise rational choice about the scale of [his] offending”.[11] Accordingly, the Judge concluded that a 15 per cent deduction was appropriate for this factor.[12] He then awarded a further 10 per cent deduction to reflect Mr Clark’s good rehabilitative prospects and remorse,[13] and a final 15 per cent deduction for his guilty pleas.[14] These deductions were applied in a staggered fashion, which resulted in concurrent end sentences of six years and two months’ imprisonment on the four charges involving methamphetamine.
The appeal
Starting point
[10]At [24].
[11]At [24]–[25].
[12]At [26].
[13]At [29].
[14]At [36].
Ms Hall, on behalf of Mr Clark, submits the Judge overstated the role Mr Clark played in the supply of methamphetamine, which led him to adopt too high a starting point. Ms Hall characterises Mr Clark’s role in the earlier offending in Ashburton as that of an expendable courier driver shuttling drugs between dealers. By the time of the subsequent offending he was in considerable debt to Mr Hanna and was “well entrenched in a raging methamphetamine addiction”. Also, with the latter offending Mr Clark had no operational function other than to supply methamphetamine down the chain and did not have authority to direct others. He was motivated by his methamphetamine addiction and had little to gain from the offending. Seen in this way, Mr Clark met a number of the indicia recognised by this Court in Zhang v R to reflect a “lesser” role in the supply of methamphetamine, and therefore a lower starting point should have been adopted. We reject this submission.
We do not accept Ms Hall’s characterisation of Mr Clark. We reject the contention he was simply an expendable courier driver who played no more than a “lesser” role in the offending. On Mr Clark’s own reporting he had been dealing methamphetamine from February 2017.[15] The items located in Mr Clark’s car when he was arrested on 1 February 2017 support the inference his role then was more than just a courier.[16] By December 2017 Mr Clark had direct communication with Mr Hanna, a high-level dealer, and Mr Clark was engaged in supplying methamphetamine to his own customers and to other dealers for on-supply. Whilst there is nothing to suggest that he was directing others in a wider illicit enterprise, the evidence shows that by then he was essentially running his own supply operation. These factors are consistent with him having a “significant” role in the offending.
[15]Mr Clark informed the drug and alcohol counsellor that he started dealing approximately 12 months before he was arrested. Whether Mr Clark was referring to his arrest in December or February 2017, in either circumstance he was involved in dealing prior to the Ashburton offending.
[16]The presence of methamphetamine, ziplock bags, scales, a spoon and cash all suggest he was involved in dealing methamphetamine.
Nor do we consider that his addiction to methamphetamine substantially alters how his role is categorised. Although the evidence of Mr Clark’s addiction is compelling, the scale of his offending went beyond what was necessary to fuel his addiction. We accept he does not appear to have lived a life of luxury from his drug dealing, but he did gain financially from it.[17]
[17]Mr Clark had a debt to Mr Hanna that he was repaying with the proceeds of his dealing, he was also found with a substantial sum of cash on each occasion, and self-reported that he would gamble $1,000 at a time.
Ms Hall referred us to various cases which she submitted would support a lower starting point. In this regard Ms Hall submitted that Mr Clark’s role was considerably less involved than that of Mr Watene-Toi in Hall v R[18] and Mr Parkes in Parkes v R,[19] where starting points of nine years’ imprisonment were adopted in each case. However, we do not find these comparator cases helpful as they involve offending of a substantially different nature to that of Mr Clark’s.[20] Indeed, if anything, the starting points adopted in those cases accord with the nine years and six months that was adopted here.
[18]Hall v R [2020] NZCA 183.
[19]Parkes v R [2020] NZCA 203.
[20]Mr Watene-Toi was involved in the manufacturing of a little over one kilogram of methamphetamine. He not only assisted in bringing the manufacturing material to the manufacturing site, he remained present throughout the manufacturing process and was well aware of what was going on and of the scale of the operation. The quantum involved in Mr Watene-Toi’s offending was greater than that in Mr Clark’s, however, Mr Watene-Toi’s physical role was rather limited. By way of comparison Mr Clark’s role was much more active and the fact he was supplying substantial quanta of methamphetamine to other dealers to then on-sell would also have given him insight into the scope of the enterprise he was involved in. Thus, we do not find this case a particularly helpful comparator.
Mr Parkes was involved in supplying 568.8 grams of methamphetamine to a single customer. Mr Parkes was close to the source of the methamphetamine, appreciated the magnitude of the enterprise and was motivated by significant financial gain; his role was a leading one. Mr Clark’s role falls far short of being a leading one, however, he was much more actively involved in the enterprise than Mr Parkes was and built up his own network of customers whom he supplied. The nature of the defendant’s involvement in each case is wholly different and it is not useful to attempt to draw a comparison with this case either.
Accordingly, we agree with the Judge’s categorisation of Mr Clark’s role as “significant” and the starting point adopted.
Mitigating factors
Ms Hall submits the Judge should have given a discount of no less than 20 per cent for Mr Clark’s addiction. She contends the discount the Judge arrived at was influenced by his error in finding the addiction was not so severe as to impair Mr Clark’s ability for rational choice. She argues this error arose from the Judge’s misunderstanding that Mr Clark remained employed throughout his offending, when in fact he had lost his job following his arrest for the first set of offending in February 2017. To support this assertion Ms Hall relies on the submissions she made as Mr Clark’s counsel at sentencing. However, there was no evidence before us to support that assertion. Nor was there anything in the pre-sentence report or the personal information provided by Mr Clark to support this assertion. Finally, the assertion is at odds with the report of the alcohol and drug assessment counsellor Roger Brooking who interviewed Mr Clark and other persons relevant to his offending.
Mr Brooking’s report states that Mr Clark had been in prison on remand for 21 months, which is consistent with Mr Clark being remanded in custody in December 2017 following his arrest for the offending in Wellington.[21] Mr Brooking also records Mr Clark’s employment as a professional seaman and reports that “Mr Clark continued going to sea up till he was sent to prison” and “a week before he was arrested, he was offered a job as skipper of a tugboat at $95,000 a year”.[22] Taken together these statements suggest that until Mr Clark was remanded in custody in December 2017 he was at liberty for some of the time between the first arrest in February 2017 and the later arrest in December 2017 and during this period he continued to work at sea, which is contrary to Ms Hall’s assertion. Accordingly, we are not prepared to find the Judge erred in his factual assessment of Mr Clark’s employment history. Nor do we consider this issue to be material to the sentencing assessment.
[21]Mr Brooking’s report is dated September 2019. In his affidavit at paragraph 11 Mr Clark refers to going into custody after the Ashburton charges and then being released. He does not say how long the release was for or whether he was working or not during the period of release.
[22]These statements were noted by the Judge at [25] of the sentencing notes: R v Clark, above n 1.
Ms Hall also submits that in Zhang v R this Court did not rule out the possibility that impaired rational choice because of addiction may coexist with commercial offending. She argues that Mr Clark was dealing in methamphetamine to sustain a severe addiction in the face of significant risk and little hope of financial gain, which indicates he was suffering from impaired rational choice. We reject this submission.
As this Court observed in Zhang v R, addiction may affect sentencing in a variety of ways, including as a mitigating factor.[23] Irrespective of any error by the Judge regarding when Mr Clark’s legitimate employment ended, it is clear to us the Judge accepted Mr Clark’s capacity for rational choice was somewhat impaired by his addiction. Impairment on account of addiction will always be a matter of degree. In this case, we agree with the Judge that Mr Clark’s capacity for reason was not so impaired that he lacked capacity to exercise a rational choice about the scale of the offending he engaged in, which went beyond what was necessary to sustain his addiction.
[23]See Zhang v R, above n 5, at [139]–[150].
Ms Hall contends that Mr Clark’s choice to engage in drug dealing despite the risks associated with that conduct is evidence of his impaired reasoning. However, this is a choice made by every individual who engages in drug-dealing. For some this choice may be overwhelmingly influenced by their addiction, for others addiction will be a partial influence and for the remainder it may have no role at all in their decision-making. We find that Mr Clark falls into the middle category, he acted partly to feed his addiction and partly in the hope of financial gain. This particularly seems to be the case with the later offending in December 2017, which was at a higher level than the earlier offending. Accordingly, we are satisfied there was no error in applying a 15 per cent discount here.
Ms Hall submits the 15 per cent discount for a guilty plea deduction was insufficient. She contends a 20 per cent deduction should have been available to Mr Clark. Ms Hall contends that although guilty pleas were not entered at the first available opportunity, sentencing indications were sought soon after disclosure was completed.[24] The Crown disagrees and debates the time at which Ms Hall says the sentencing indications were sought. In Moheebi v R this Court recently noted that the background to the timing of a guilty plea may often be “somewhat involved” and the sentencing judge is best placed to assess the value of the guilty plea.[25] Accordingly, his or her assessment should not be interfered with unless it is “wholly unsustainable”.[26] Here we can find no proper basis to depart from the 15 per cent deduction awarded by Judge Hobbs.
[24]Initially two indications were sought for the two separate sets of offending.
[25]Moheebi v R [2020] NZCA 343.
[26]At [33]–[34].
Where we find there is a proper basis to interfere with the sentence is in relation to the combined discount of 10 per cent given for remorse and rehabilitation. Ms Hall submits this discount is inadequate. She contends that Mr Clark’s genuine remorse warranted a deduction of at least five per cent, and that Mr Clark’s rehabilitative prospects alone justified a 20 per cent deduction. On the other hand, the Crown submits there is nothing to suggest the discount given to Mr Clark was outside the Judge’s sentencing discretion.
In our view this was a case where remorse and rehabilitation required separate recognition, and it is here the Judge erred. When these factors are viewed separately the evidence supports discounts of five per cent for remorse and 12 per cent for rehabilitation. The information available to the Judge at sentencing shows Mr Clark is genuinely remorseful for the offending and determined to take rehabilitative action. While on remand in custody prior to sentence he engaged in three separate courses aimed at rehabilitation. The report from Mr Brooking confirms that Mr Clark has taken significant steps since the remand in custody to come to grips with his drug addiction and is genuinely motivated to take further steps to do so.
The effect of these discounts on the end sentences warrants this Court making a fresh re-assessment on the basis the end sentences are manifestly excessive. When calculated in accordance with the two-stage approach approved in Moses v R, the approximate outcome is end sentences of five years’ imprisonment.[27] Accordingly, we are satisfied the appeal against sentence should be allowed.
[27]In Moheebi v R at [35] n 34, this Court noted that once errors in sentencing are identified on appeal, substituted sentences are assessed in accordance with Moses v R [2020] NZCA 296.
Given the view we have reached we see no reason to consider the other arguments in support of the appeal. The reduction in sentences that we have reached also answers the arguments for a reduction based on disparity with the sentences of other offenders whom police arrested as part of their investigation. We have followed the two-stage process approved in Moses v R, which answers Ms Hall’s submission the Judge followed an incorrect sentencing approach.
Result
The appeal against sentence is allowed.
The sentences of six years and two months’ imprisonment imposed on the three offences of possession of methamphetamine for supply and the offence of conspiring to supply methamphetamine are set aside.
On each of those offences a concurrent sentence of five years’ imprisonment is imposed.
Solicitors:
Crown Law Office, Wellington for Respondent
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