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Clarke v R

Clarke v R

Case [2013] NZCA 473 10 October 2013

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA524/2012
[2013] NZCA 473

BETWEEN	BRENDAN JOHN CLARKE Appellant
AND	THE QUEEN Respondent

Hearing:	19 August 2013
Court:	French, Rodney Hansen and Mallon JJ
Counsel:	P J Knowsley for Appellant S B Edwards for Respondent
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.

____________________________________________________________________

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,…

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 Clarke v R

Details

AGLC: Clarke v R [2013] NZCA 473
Case: [2013] NZCA 473
Decision Date: 10 October 2013 at 11.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against sentence in the case of Clarke v R. Brendan Clarke was one of six people involved in the distribution of almost three kilograms of cocaine imported into New Zealand. Clarke was sentenced to four years and eight months' imprisonment for possession of a class A drug for supply. The legal issue before the court was whether Clarke's sentence was disparate with the sentences imposed on his co-offenders, particularly that of Cameron Lockie, who received a sentence of two years and one month imprisonment. The court found that there was an unjustifiable disparity between the sentences of Clarke and Lockie, and the appeal against sentence was allowed.

The court considered the starting points adopted for each of the co-offenders and found that the disparity between Clarke's and Lockie's starting points could not be justified by their respective levels of culpability. The court found that a slightly lower sentence for Clarke would not have been out of range, and that the sentences imposed on the other co-offenders suggested a lower starting point was available for Clarke. The court decided that Clarke's starting point should be reduced to eight years' imprisonment, which would result in a sentence of four years and two months' imprisonment. The court quashed Clarke's original sentence of four years and eight months' imprisonment and replaced it with a sentence of four years and two months' imprisonment.

Orders