Clarke v R
[2013] NZCA 473
•10 October 2013 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA524/2012 [2013] NZCA 473 |
| BETWEEN | BRENDAN JOHN CLARKE |
| AND | THE QUEEN |
| Hearing: | 19 August 2013 |
Court: | French, Rodney Hansen and Mallon JJ |
Counsel: | P J Knowsley for Appellant |
Judgment: | 10 October 2013 at 11.30 am |
JUDGMENT OF THE COURT
AThe appeal against sentence is allowed.
BThe appellant’s sentence of four years and eight months’ imprisonment is quashed and replaced with a sentence of four years and two months’ imprisonment.
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REASONS OF THE COURT
(Given by Mallon J)
Introduction
Brendan Clarke was one of six people involved in the distribution of almost three kilograms of cocaine which had been imported into New Zealand. He was the second of the six offenders to be sentenced in relation to this offending. He was sentenced to four years and eight months’ imprisonment for possession of a class A drug for supply.[1] He appeals against his sentence on the basis that it is disparate with the sentences imposed on his co-offenders, particularly that of Cameron Lockie, who was the last of the six offenders to be sentenced.
The background
General circumstances of the offending
[1]R v Clarke [2012] NZHC 1692.
On 13 December 2011 the New Zealand Customs Service located 2.985 kilograms of cocaine hidden in the suitcase of a Mexican national, David Negrete Nevarez, a passenger on a flight from Los Angeles to New Zealand.[2] Over the next six days the suitcase passed from Mr Nevarez to Samantha Gemmell to Adrian Kemp to Mr Clarke and finally to Mr Lockie. Other than Mr Lockie, each was approached by the police shortly after receiving the suitcase. Each agreed to assist the police in their investigation by passing the suitcase on to the next link in the supply chain. Each of them was charged, as was Daniel McGannan, the London‑based organiser of the New Zealand supply chain, who was extradited to New Zealand. Each of the offenders entered guilty pleas over the course of the next 18 months and were sentenced accordingly.
Mr Nevarez
[2]Mr Nevarez was charged under the name of Negrete.
Mr Nevarez was the first to be sentenced. He was sentenced on 3 July 2012 on charges of importation and possession for supply.[3] The sentencing Judge (Peters J) accepted that Mr Nevarez had a limited role as a courier on this occasion and that he was motivated by a wish to earn money. The Judge adopted a starting point of 12 years’ imprisonment. With discounts for various mitigating factors including his guilty plea, Mr Nevarez received an end sentence of seven years’ imprisonment.
Mr Clarke
[3]R v Nevarez [2012] NZHC 1566.
Mr Clarke was the next to be sentenced. He was sentenced on 13 July 2012 on a charge of possession for supply.[4] The sentencing Judge (Dobson J) set out the facts on which he was sentencing Mr Clarke as follows:
[3] The Crown case is that the originally intended purchaser cried off, and a business associate of yours [Mr Lockie] approached you to see if you could find buyers for the cocaine. It is suggested in the summary of facts that he did so because of the prospect that you would have appropriate contacts from previous experience as a DJ. So the connection is made with you not because of any prior involvement in drug dealing.
[4] You expressed an interest in participating at that stage. You later changed your mind, and told the associate who had propositioned you that you were no longer interested in dealing the drugs. His response was that as the package was already en route to Wellington, you should take possession of it, and that he would collect it from you the following week. You agreed to receive the package and store it in a lock-up you had in Wellington.
[5] You duly took possession of the suitcase containing the cocaine and you paid the person who delivered it to you $2,000 for doing so. You had opened the suitcase to inspect the cocaine when the Police intervened. You explained that you had initially been the intended recipient of the cocaine and that you were going to sell it, but you later decided that you could not do so and therefore the suitcase was going to be passed on to somebody else. ...
[4]R v Clarke, above n 1.
In accepting these facts for sentencing the Judge took a more favourable view of Mr Clarke’s role than the Crown’s view, which was that Mr Clarke had not changed his mind and that he remained the wholesaler at the point he was apprehended by the police. The Judge went on to say that he accepted that Mr Clarke had played no role in importing the suitcase and had only become involved two or three days prior to taking possession. He considered that Mr Clarke became involved due to curiosity, stress, a desire to earn some money and willingness to help out an associate. However, the Judge accepted that at the time Mr Clarke took possession he had no intention to distribute the cocaine and intended only to store it until it could be handed over to Mr Lockie.[5]
[5]At [15]–[18].
The Judge regarded Mr Clarke as less culpable than Mr Nevarez, who was an “importation courier”.[6] On the basis of a number of cases that provided some guidance as to the appropriate starting point, the Judge decided on a starting point of nine years’ imprisonment.[7] With discounts for various mitigating factors, including Mr Clarke’s guilty plea, the Judge arrived at an end sentence of four years and eight months’ imprisonment.
Ms Gemmell and Mr Kemp
[6]At [15].
[7]R v Yee CA169/01, 29 November 2001; R v Hayward HC Auckland CRI-2011-092-4639, 13 September 2011; R v Peric HC Auckland CRI-2006-092-16557, 8 June 2007; R v Ali CA371/05, 20 June 2006; R v Wickremasinghe HC Auckland TO13408, 28 March 2003; R v Davis CA440/04, 20 October 2005; R v Ogaz [2007] NZCA 45; and Ayala v R [2012] NZCA 271.
The next two offenders to be sentenced were Ms Gemmell and Mr Kemp. They were sentenced on 26 September 2012 on a charge of possession for supply.[8] They were sentenced on the basis that they had acted as temporary custodians of the suitcase containing the cocaine at the behest of their friend Mr McGannan. The sentencing Judge (Priestley J) described their involvement as follows:[9]
[8] On 16 December Mr McGannon contacted Ms Gemmell and asked her to collect a sample of the cocaine that afternoon. Ms Gemmell went to the hotel room where the suitcase was being held by Mr Negrete. During the meeting, Ms Gemmell made and received several telephone calls to and from Mr McGannon. Arrangements concluded on the basis that Ms Gemmell would return the following morning to collect the sample. However, Mr McGannon then requested that Ms Gemmell take the suitcase, telling her that a courier would collect it from her and transport it to Wellington. Ms Gemmell met with Mr Negrete the next day and collected the suitcase, knowing that it contained drugs.
[9] Mr McGannon contacted Mr Kemp on 17 December and asked him to collect from Samantha Gemmell a friend’s bag that had mistakenly been sent to Auckland instead of Wellington. Mr Kemp agreed, ignorant of the fact of the drugs inside the case. Later, Mr McGannon advised Mr Kemp, via text message, that there was a small amount of drugs in the bag. When Mr McGannon offered Mr Kemp money to transport the suitcase to Wellington, Mr Kemp declined. Mr McGannon increased his offer, and Mr Kemp again declined. He only agreed to collect the suitcase when Mr McGannon advised him of Ms Gemmell’s distress. Mr Kemp collected the suitcase from Ms Gemmell at a Mission Bay parking lot. Your part in the arrangement Mr Kemp was to transport the suitcase to Wellington where it would be collected by an associate of Mr McGannon. In Wellington, you handed over the suitcase to a Mr Clarke (who has been sentenced), who in his turn took it to Christchurch where he delivered it to a Mr Lockie (who awaits trial).
[8]R v Gemmel [2012] NZHC 2488.
[9]The record of sentencing remarks incorrectly spells McGannan as “McGannon” throughout.
The Judge referred to Mr Nevarez’s sentence. In relation to Mr Clarke the Judge said:[10]
Dobson J considered that Mr Clarke’s proximity to the importation was reasonably close and that he occupied a relatively high position in the distribution tree. He was an intermediary who took possession of the suitcase without intention to distribute the drugs. Similar considerations apply to both of you. Rather, Mr Clarke intended to store the cocaine at his premises until it could be handed over.
[10]At [20].
The Judge decided upon a starting point of seven years’ imprisonment for each of Ms Gemmell and Mr Kemp. He was satisfied that there was no commercial element to their offending. He noted that his starting point was slightly lower than that for Mr Clarke, which he saw as reflecting “a lower degree of culpability for both [Ms Gemmell and Mr Kemp] – lack of a commercial element and the transitory nature of what [they] agreed to do – that is hold on to the suitcase”.[11]
[11]At [25].
Taking into account mitigating factors including guilty pleas, the end sentence was two years and 10 months’ imprisonment for Mr Kemp and two years and six months’ imprisonment for Ms Gemmell.
Mr McGannan
The next person to be sentenced was Mr McGannan. He was sentenced on 30 April 2013 on one count of supplying cocaine.[12] The sentencing Judge (Toogood J) sentenced Mr McGannan on the following basis:
[3] ... You were contacted by the person who had arranged the importation; he was someone who had supplied you with cocaine for your personal use. With the promise of a quick financial gain, you agreed to see if you could arrange the distribution of the drugs within New Zealand.
[4] You persuaded friends in New Zealand who, like you, had no previous involvement in drug-dealing, to handle the shipment. You made the arrangements with your contacts which resulted in the cocaine being shipped from Auckland through Wellington to Christchurch where it was finally seized.
[12]R v McGannan [2013] NZHC 915.
The Judge referred to the starting points adopted in relation to Mr McGannan’s co-offenders (Mr Nevarez, Mr Clarke, Mr Kemp and Ms Gemmell).[13] His Honour adopted a starting point of 10 years’ imprisonment. With discounts for mitigating factors including Mr McGannan’s guilty plea, the Judge arrived at an end sentence of six years and six months’ imprisonment.
Mr Lockie
[13]At [20].
The last of the co-offenders to be sentenced was Mr Lockie. He was sentenced on 26 June 2013 on one charge of possession for supply.[14] For the purposes of sentencing Mr Lockie submitted a lengthy affidavit setting out the circumstances in which he said he had become involved. The sentencing Judge (Whata J) summarised those circumstances, as claimed by Mr Lockie in his affidavit, as follows:
[45] You describe how Daniel or Poodle [Mr McGannan] called you and said he was in trouble about a package of cocaine in or going to be in Wellington and asked you if you could help with it. You were surprised, told your flatmates in Christchurch, where you were then working. Later that same day you told Brendan [Mr Clarke] who later that week said he wanted the cocaine. You were worried about Daniel and linked him to Brendan.
[46] You then received a call from Brendan who was in trouble with his wife and wanted to offload the cocaine on you. You met with Brendan, said that you did not want anything to do with this, and agreed that it was too big for you and you were going to throw the cocaine in the river and as I have said this was all recorded by the police.
[14]R v Lockie [2013] NZHC 1625.
The Crown submitted that Mr Lockie’s culpability was lower than that of Mr Clarke, but higher than that of Ms Gemmell and Mr Kemp. The Judge, however, considered that Mr Lockie’s culpability fell below that of Ms Gemmell and Mr Kemp. In reaching a starting point of six years, the Judge commented:
[72] At the top of this chain were, quite plainly, Mr Nevarez and Mr McGannan who received 12 and 10 years respectively. For my part the latter was fortunate not to be sharing the same starting point as Mr Nevarez. Mr McGannan was in my view the central player in all of this. Mr Clarke sits below them but only just – he was motivated by commercial gain – and the starting point of nine years reflects this. There are then Ms Gemmell and Mr Kemp. They were plainly mules, and paid accordingly ($2,000 each). They commenced with starting points of seven years.
[73] Against this band of sentencing, there are two key aspects to your culpability that inform my assessment.
[74] First, you were a link man. You brought together the key supplier and the prospective purchaser. Strongly mitigating what is otherwise very serious criminal activity, there is no evidence that you were paid or stood to gain commercially from this activity. Your own evidence, not challenged by the Crown and not subject to cross examination, is that you were helping a friend in need. I also think that I am able to infer from the numerous testimonials, again not challenged by the Crown, that this is entirely consistent with your character.
[75] ... there is direct evidence that you had no intention of making a commercial gain from [the cocaine] or otherwise distribute it. In the transcript of your conversation with Mr Clarke you state:
“And I’m going to throw this out in the fucken river...”
[76] Presumably the transcript is reliable or it would not have been attached to the summary of facts on which you entered a guilty plea. I could find that you had some inkling that the police were listening and that you were trying to cover your tracks. But that would plainly be speculation and an improper basis upon which to sentence you. Given the absence of evidence of any dealings by you in cocaine or drugs otherwise – for example there are no texts, or bank statements that might support a finding of commerciality, I am satisfied that the presumption of commerciality in this case is rebutted.
[77] In these circumstances, I am going to proceed on the basis that a starting point, reflecting the combination of aggravating and mitigating features just mentioned, places you in a special category of lesser overall culpability than those who were plainly, on the facts, going to gain commercially from the supply of cocaine. I therefore commence with a starting point of six years.
With discounts for mitigating factors including Mr Lockie’s guilty plea, Mr Lockie received an end sentence of two years and one month imprisonment.
Unjustifiable disparity?
For Mr Clarke it is submitted that there is a gross disparity between the starting points adopted for Mr Clarke and Mr Lockie. Although Mr Clarke’s counsel sought to advance a less favourable view of Mr Lockie’s involvement than that taken by Whata J, it is not open to us to do that.[15] The appropriate comparison is between the starting point adopted by Dobson J on the facts on which he sentenced Mr Clarke and the starting point adopted by Whata J on the facts on which he sentenced Mr Lockie. The sentences the other co-offenders received are also relevant to parity.
[15]Mr Clarke filed an affidavit in support of his appeal. To the extent it set out the circumstances of his involvement, it added nothing to the basis on which Dobson J sentenced him. To the extent it set out a less favourable view of Mr Lockie’s involvement in the offending than that accepted by Whata J, it is irrelevant.
Mr Clarke’s counsel submits that the only difference in culpability between Mr Clarke and Mr Lockie, on the facts on which each of them was sentenced, was Mr Clarke’s temporary commercial motivation. That motivation lasted no more than three days and was not present by the time Mr Clarke took possession of the suitcase. To that we would add that Mr Clarke made a payment of $2,000 to Mr Kemp, apparently in accordance with the plan agreed before Mr Clarke’s change of mindset.
We agree that Mr Clarke’s temporary commercial motivation together with the payment he made to Mr Kemp did not justify a three year difference between the starting points adopted for Mr Clarke and Mr Lockie. We agree with Mr Clarke’s counsel that this disparity would lead a “reasonably minded independent observer aware of all the circumstances of the offence and of the offenders” to “think that something had gone wrong with the administration of justice”.[16] It was an unjustifiable disparity.
Does the disparity require an adjustment?
[16]R v Lawson [1982] 2 NZLR 219 (CA) at 223.
That, however, is not the end of the matter. It is well accepted that a gross or unjustifiable disparity does not necessarily result in the reduction of a sentence imposed on a co-offender. It will not do so where the co-offender has received an unduly lenient sentence.[17] This is because that in turn could “cause public concern at the administration of justice” since “[t]wo wrongs do not make a right”.[18]
[17]R v Nathan CA378/90, 24 April 1991 at 5; R v Ryder CA116/98, 23 June 1998 at 6; Macfarlane v R [2012] NZCA 317 at [24].
[18]Mau’u v R [2011] NZCA 385 at [28].
Given the three year difference in the starting points for Mr Clarke and Mr Lockie, and the limited differences in their respective culpability, both starting points cannot be within range as counsel for Mr Clarke initially submitted. Either Mr Clarke was sentenced too harshly or Mr Lockie too leniently or the sentences for each of them were out of range. On further reflection, counsel for Mr Clarke accepted that Mr Lockie’s starting point could be described as lenient. He maintained, however, that if Mr Clarke had been sentenced at the same time as or after his co-offenders, he would have received a lesser sentence than he did.
In a disparity case, we consider that the appropriate starting point should first be considered without reference to the sentences imposed on the co-offenders in respect of whom the disparity is alleged. That is because the sentences of those co‑offenders may have been reached, at least in part, through the sentencing judge looking at the sentences already passed on co-offenders and then making an adjustment on the basis of any points of distinction in culpability. If the sentence for those sentenced earlier in time is too high or too low, that error may then carry through in the sentences for those sentenced later in time, or erroneous points of distinction may be made as between the co-offenders.
There is no guideline judgment for sentencing on cocaine offending. In sentencing Mr Clarke, Dobson J relied on R v Wickremasinghe, which is a High Court decision concerning heroin importation.[19] This Court has said that sentences for cocaine offending should be broadly similar to sentences for comparable heroin offending.[20] And Wickremasinghe has been cited in other cases dealing with cocaine.[21] Dobson J considered that Mr Clarke’s role was “as a courier or custodian of the suitcase containing the cocaine, an intermediary between the suppliers”.[22] In accordance with Wickremasinghe that would, as Dobson J said, mean a starting point of 12 to 13 years.
[19]R v Wickremasinghe, above n 7.
[20]R v McFarlane [1992] 3 NZLR 424 (CA) at 427.
[21]R v Davis, above n 7; R v Ali, above n 7.
[22]R v Clarke, above n 1, at [14].
The Judge decided that starting point was too high. That was because, relying on R v Fatu (the guideline judgment for methamphetamine offending), his Honour drew a distinction between couriers that are charged with importation of cocaine and couriers charged with possession for supply.[23] The Judge then looked at a number of other sentencings for cocaine offending, in which starting points ranged from seven to 15 years.[24] Taking into account Mr Clarke’s proximity to the importation, his knowledge of the quantity of cocaine and that he became involved initially to make some money (albeit probably not a large profit), his Honour arrived at a nine year starting point.
[23]R v Fatu [2006] 2 NZLR 72 (CA).
[24]See above n 7.
In our view the approach adopted by Dobson J cannot be faulted. Although other authorities have modified the starting points discussed in Wickremasinghe down somewhat,[25] the Judge recognised that in adopting a starting point lower than the 12 to 13 years that Wickremasinghe suggests. That is not to say that the starting point adopted for Mr Clarke cannot be adjusted down. The question is not whether Mr Clarke’s sentence was within range, but whether a lower sentence could now be imposed (because there is an unjustified disparity) without causing public concern at the administration of justice.
[25]R v Reynecke HC Auckland CRI-2004-004-9111, 29 July 2005; R v Murphy HC Auckland CRI-2004-004-9111, 3 June 2005.
In our view a slightly lower sentence would not have been out of range. We say that for three reasons. First, Mr Clarke’s culpability was less than that of the offenders in each of the comparable cases relied on by Dobson J except R v Yee and R v Hayward, where starting points of eight and seven years respectively were adopted.[26] Secondly, cross-checked against Fatu we consider that this offending would best fit in the lower end of band three (eight to 11 years) because, although the quantities were very large, Mr Clarke’s commercial motivation was limited and temporary.[27] Thirdly, we consider that the sentences imposed on Mr McGannan, Ms Gemmell and Mr Kemp in particular suggest that a lower starting point was available for Mr Clarke.
[26]R v Yee, above n 7; R v Hayward, above n 7.
[27]R v Fatu, above n 23, at [34].
The third reason needs some elaboration. The first to be sentenced was Mr Nevarez. Peters J reviewed a number of authorities and considered the appropriate range to be 11 to 13 years’ imprisonment. Her Honour decided on a middle point because of the quantity and value of the drug but also the limited role of Mr Nevarez and the fact that there was only one importation. That range and the end sentence is supported by the authorities the Judge relied on. Mr Clarke’s culpability is materially lower than that of Mr Nevarez (as was recognised by Dobson J).
In sentencing Mr McGannan, Toogood J considered the authorities that Dobson J had considered. His Honour considered that these authorities showed that a starting point of 10 to 13 years was appropriate for those who were crucial players in the importation and distribution of class A drugs, but who were not masterminds. The Crown contended that the starting point should be 10 to 11 years. The Judge decided that 10 years was appropriate. If 10 years was available on the basis of the authorities, a greater difference than one year was available as between Mr McGannan and Mr Clarke.
As Toogood J observed, Mr McGannan played a key role in the offending. He was in contact with those who were running the operation in the United Kingdom and arranged each stage of the distribution in New Zealand through his friends, putting them in contact with each other. He played this role for financial gain. His culpability was significantly higher than that of Mr Clarke.[28] Even if Mr McGannan may have been fortunate not to receive a higher sentence (as Whata J commented when sentencing Mr Lockie),[29] we do not regard his sentence as entirely out of range on the basis of the authorities.
[28]Although Toogood J recognised the need for parity, he did not say why he regarded Mr McGannan’s culpability as warranting a starting point that was only one year higher than Mr Clarke’s starting point.
[29]R v Lockie, above n 14, at [72].
Similarly, when sentencing Ms Gemmell and Mr Kemp, Priestley J considered Wickremasinghe and Fatu in reaching his starting point of seven years. In reaching that view he recognised that Mr Clarke’s position was similar to that of Ms Gemmell and Mr Kemp, because each had taken possession of the suitcase without an intention to distribute the drugs. He placed them below Mr Clarke because their offending lacked a commercial element and because of the transitory nature of what they agreed to do. We note, however, that Mr Clarke’s commercial motivation lasted just a few days and he did not have that motivation by the time he took possession of the suitcase. Perhaps another point of distinction (although not one referred to by Priestley J) is that it is not clear that Ms Gemmell or Mr Kemp were aware of the quantity of drugs involved. We consider that a seven year starting point for Ms Gemmell and Mr Kemp was available on the basis of the authorities, as Priestley J considered it to be. Given that, a starting point lower than nine years, but a little more than seven years, was available for Mr Clarke.
In contrast with the other judges, Whata J did not refer to any authority for his starting point of six years for Mr Lockie. He appears to have reached that starting point only with reference to what he viewed as differences in Mr Lockie’s culpability as compared with his co-offenders. As we have discussed, we consider it was not correct to place Mr Lockie’s culpability so far below that of Mr Clarke on the basis that Whata J gave (namely that Mr Clarke was to gain commercially from the supply of the cocaine). In making the distinctions he did, the Judge arrived at a sentence which was not supported by the authorities and was consequently too lenient.
In our view, on the basis of the facts on which they were each sentenced, it is difficult to make any significant distinction in culpability as between Mr Clarke, Ms Gemmell, Mr Kemp and Mr Lockie. All of them were temporary custodians. None of them took possession of the suitcase motivated by commercial gain. Ms Gemmell, Mr Kemp and Mr Lockie became involved because their friend, Mr McGannan, prevailed upon them. Mr Clarke initially became involved because of thoughts of commercial gain, but that was not his motivation at the point he took possession of the cocaine. Mr Clarke and Mr Lockie were aware of the quantities of cocaine involved. Ms Gemmell and Mr Kemp may not have been. Mr Nevarez and Mr McGannan’s involvement was more serious.
In these circumstances, we consider that Mr Clarke’s starting point should be above that adopted for Ms Gemmell and Mr Kemp, but not significantly. We consider that Mr Clarke’s starting point should be reduced to eight years’ imprisonment. That is within the available range indicated by the authorities, takes into account the unjustified disparity between Mr Clarke and Mr Lockie, and places Mr Clarke fairly as against the other co-offenders. That leaves Mr Lockie with a sentence that is lenient. He was fortunate to receive that sentence in light of the other sentences that had been passed. But in our view it would be wrong to reduce Mr Clarke’s sentence to that level. That would be below the appropriate sentence for Mr Clarke on the basis of his culpability and “two wrongs do not make a right”. A starting point of eight years’ imprisonment appropriately reflects Mr Clarke’s culpability (on the basis on which he was sentenced) and better aligns on a parity basis with the sentences of his co-offenders.
There was no challenge to the discount for mitigating factors (10 per cent for good character, 20 per cent for other factors, and then 25 per cent for the guilty plea). On that basis, from an eight year starting point Mr Clarke’s sentence would be reduced to four years and two months’ imprisonment.
Result
The appeal against sentence is allowed. Mr Clarke’s sentence of four years and eight months’ imprisonment is quashed. It is replaced with a sentence of four years and two months’ imprisonment.
Solicitors:
Crown Law Office, Wellington for Respondent
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