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Clark v R

Clark v R

Case [2020] NZCA 641 11 December 2020

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA269/2020
[2020] NZCA 641

BETWEEN	MICHAEL JOHN BENJAMIN CLARK Appellant
AND	THE QUEEN Respondent

Hearing:	9 November 2020
Court:	Brown, Duffy and Nation JJ
Counsel:	E A Hall for Appellant J A Eng for Respondent
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clark v R

Details

AGLC: Clark v R [2020] NZCA 641
Case: [2020] NZCA 641
Decision Date: 11 December 2020 at 10.00 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Michael John Benjamin Clark appealed against his sentences of imprisonment for drug-related offences. The court heard arguments from Clark's counsel, who submitted that the starting point for sentencing was too high, insufficient recognition was given to mitigating factors, the sentence lacked parity with others involved in the offending, and the judge erred by failing to apply the correct sentencing methodology. The appeal court examined the starting point adopted by the sentencing judge and found no error in the categorisation of Clark's role in the offending. The court also found no error in the discount for Clark's addiction or for his guilty pleas. However, the court found an error in the combined discount for remorse and rehabilitation, which it considered should have been separate. The court substituted concurrent sentences of five years' imprisonment for the offences of possession of methamphetamine for supply and conspiring to supply methamphetamine.

The appeal against sentence was 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 were set aside. On each of those offences, a concurrent sentence of five years' imprisonment was imposed. The court followed the two-stage process approved in Moses v R, which answered Clark's counsel's submission that the judge followed an incorrect sentencing approach. The court did not consider it necessary to address the other arguments in support of the appeal, as the reduction in sentences it reached answered the arguments for a reduction based on disparity with the sentences of other offenders.

Orders