Clifton Christian Paul v The Queen
[2004] NZCA 264
•8 November 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA398/03
CA415/03
CA425/03THE QUEEN
v
CHRISTIAN PAUL CLIFTON
RUSSELL KIM CLIFTON
PHILIPPA MARJORIE ELLISHearing:15 June 2004
Coram:McGrath J
Goddard J
Chisholm JAppearances: P F Chambers for Appellant C P Clifton
R M Mansfield for Appellant R K Clifton
T Sutcliffe for Appellant P M Ellis
H D M Lawry for Crown
Judgment:8 November 2004
JUDGMENT OF THE COURT DELIVERED BY McGRATH J
Introduction
[1] The appellants, Christian Clifton, Russell Clifton and Philippa Ellis were tried by a jury in the District Court before Judge Field on charges relating to the importation and manufacture of the class B drugs amphetamine and methamphetamine. The alleged offending spanned a period from the last quarter of 2000 until early 2001. Each appellant was convicted on all charges and sentenced to effective terms of imprisonment of nine years, in the case of Ms Ellis and Russell Clifton, and eight years and three months in the case of Mr Christian Clifton.
[2] Christian Clifton has appealed against both his convictions and his sentence. Russell Clifton and Ms Ellis have appealed against their sentences only, having abandoned the conviction appeal prior to the hearing before us. This judgment addresses each of the remaining appeals.
Background facts
[3] On 26 March 2001 a customs officer inspected a package at the Auckland International Mail Centre that had arrived by airmail from the United Kingdom. The address of the person to whom it had been posted was a property in Rimu Street, New Lynn Auckland which was the home of the mother of the appellant Ms Ellis. A declaration attached to the package described the contents as shoes, but on examination it was found to contain a heat sealed plastic bag within which there was a large volume of white powder weighing 1014 grams. Subsequently it was ascertained that the powder was the class B controlled drug amphetamine.
[4] The police estimated the amphetamine to have an approximate street value of $100,000 to $180,000. It was of low purity (7%) and the Crown accepted that the value might well have been at the lower end of that range. The amphetamine in the package was replaced with glucose powder, and repackaged by Customs into the same wrapping in which the amphetamine had arrived. Another smaller plastic bag, containing 100gms of the original amphetamine, was placed inside the package with the substitute powder.
[5] An attempt was made by police and customs officers personally to deliver the package to the Rimu Street address on 28 March 2001. A card was left there with a contact telephone number. As a result, Ms Ellis made contact and arranged a time for the parcel to be delivered to the address to which it had been sent.
[6] At about 10am in the morning of the day arranged for delivery Ms Ellis and her partner Russell Clifton arrived at Rimu Street, unlocked the front door and then waited outside. A customs officer, disguised as a courier driver, delivered the package at 10.34am. Ms Ellis received it from him and signed for the package using the name of the addressee. She took the parcel inside where she wrapped the package in several layers of tinfoil, and put it in a brown paper bag. About ten minutes after the delivery Ms Ellis left the address carrying a brown paper bag. She walked a short distance down the street where she met Christian Clifton, who is a brother of Russell Clifton, and she handed him the paper bag. Christian Clifton had got out of a white Mitsubishi vehicle, then parked in Rimu Street, to meet her. Christian Clifton took the bag, and drove off in his vehicle. Ms Ellis returned to the property where she had taken delivery of the package.
[7] The events in the street were observed by the police, who then followed Christian Clifton’s vehicle to Farquhar Road, Glendene. He walked into a house in that street which was the home of the Ms Ellis and Russell Clifton. A few minutes later Ms Ellis and Russell Clifton arrived and they also went into the property.
[8] Shortly thereafter the police executed a search warrant at the Farquhar Road address. They found Russell Clifton and Ms Ellis on the property. Christian Clifton had left on the arrival of the police, climbing over a fence at the rear and running through several neighbouring properties. A customs officer saw him flee. He hid in some bushes until eventually returning to his own home at Forrest Hill Road in Waiatarua.
[9] During the search a brown hospital property bag was located on the floor of the lounge area. Located near it was the parcel which had earlier been wrapped in tinfoil. It had been sliced open. The plastic bag containing the glucose powder was on the ground floor. The smaller bag containing the 110gms of amphetamine was located over a fence on a neighbouring property across which the customs officer had seen Christian Clifton flee.
[10] A search of the Farquhar Road property resulted in the police finding chemicals, solvents, glassware (including reaction flasks), flat bottom flasks and extraction kits in a cavity under a staircase leading to the workshop area. There were a number of security cameras in the area monitoring the front driveway, including the front door.
[11] The police later searched Christian Clifton’s property at Forrest Hill Road where they found chemicals including methanol, isopropyl, alcohol, acetone and empty neurofen, sudamol and dinetapp capsules. These substances are commonly used to manufacture methamphetamine. In an office area the police also located papers with recipes and methods of manufacture of methamphetamine downloaded from the internet. Christian Clifton was at the property when the police arrived and was interviewed about his actions earlier in the day.
[12] The police seized computers from the appellants’ respective properties at Glendene and Waiatarua. Data recovered from them related to the import of amphetamine. Included were emails sent to a fourth person by Russell Clifton and Ms Ellis which referred to a plan to send a test package to Farquhar Road early in 2001. Other data was located on the computers concerning the planning of the particular test importation.
Appeal against conviction – Christian Clifton
Evidential grounds – video surveillance
[13] At the trial the Crown case was that Christian Clifton had received the unopened package from Ms Ellis and taken it to Farquhar Road, so that the imported amphetamine would be secure and away from its place of delivery. Evidence was given by Detective Sergeant Sowter that he saw Ms Ellis hand Christian Clifton a brown paper bag on the street outside the Rimu Street property soon after the delivery of the package had been made. He described the bag he saw as being consistent in its appearance with the hospital patients’ property bag that was later discovered at Farquhar Road alongside the opened package, saying that it could easily be the same bag. This evidence linked Christian Clifton to the package, indicating that it had been given to him in the bag and that he had taken it from Rimu Street to the Farquhar Road property.
[14] In his evidence Detective Sergeant Sowter referred to video surveillance by the police of the entrance to the Rimu Street property, and made some reference to what he had later seen on the video in relation to his direct observations. The police had refused to make the videotapes recording the events available to the defence prior to trial but, for reasons we need not discuss, released it afterwards to the appellant’s counsel. Counsel for Christian Clifton at the appeal, Mr Chambers, contended that, as it did not show the handing over of the paper bag to Christian Clifton, the video did not support the Detective Sergeant’s evidence. It rather cast doubt on his credibility, particularly concerning his evidence of the similarity of the bag found at the Farquhar Road address to that the witness had seen handed over to Christian Clifton at Rimu Street. Mr Chambers said this evidence had been crucial at the trial, being the only evidence linking Christian Clifton to involvement with the package following the arrival of the amphetamine in New Zealand. The video was not available to the defence at the time of trial, and on the appellants’ argument it put the credibility of the witness directly in issue. Mr Chambers asked us to receive it as fresh evidence. He argued that the conviction was unsafe on this ground alone. He claimed support in this argument from other “fresh” evidence which we will shortly consider.
[15] The transcript of the trial indicates that when Detective Sergeant Sowter gave evidence in chief he was shown the hospital property bag found at Farquhar Road and said that it was consistent in size and colour with the beg he had seen handed over. He had not observed any writing on the bag he had seen but he had only seen one side of it when it was in Ms Ellis’ hand.
[16] During cross-examination at the trial the police officer added that he had since viewed the police video, could not see any writing on the bag, but repeated that he had only seen images from the video showing one side of the bag. He reiterated that the bag in the images was consistent with the bag he had seen at Farquhar Road and said it could easily be that bag and was of its type.
[17] Mr Chambers accepted that the videotape showed something was held by Ms Ellis while she was outside of the Rimu Street property, but emphasised that the video did not show the handing over of the bag. Nor was Christian Clifton identified on the video. He argued that the video did not give the support claimed for it by Detective Sergeant Sowter in giving his evidence. Counsel also argued that the video showed errors in the Crown’s caption summary of events which he said had been put before the jury, causing prejudice to the defence. He also referred to evidence of Ms Ellis that she and Russell Clifton had taken the bag in question to Farquhar Road, and that a different bag with different contents had been given by her to Christian Clifton. His sworn evidence supported that version of events.
[18] The main problem that the appellant’s submission faces is that the Detective Sergeant’s evidence was principally of his own observations of the events outside Rimu Road and Farquhar Street. He had relied on the video, first, to establish the sequence and timing of the events he had seen. Secondly, he had used it to check if there was any writing shown on the bag handed to Christian Clifton which was taken by him to Farquhar Street. It was of no assistance on that point. The fact that the video surveillance did not record the transfer of the bag and that not all events outside the house were recorded on video accordingly was not significant. This simply indicates that not everything the police officer saw was filmed. The Detective Sergeant did not suggest that it had been and, as indicated, his evidence was principally of his own observations. Mr Chambers was unable to point to any inconsistency with what the Detective Sergeant said he saw. There was nothing capable of misleading the jury.
[19] Finally, as Mr Lawry pointed out, Christian Clifton conceded that a paper bag was handed to him in Rimu Street which he took to Farquhar Road and then had opened. His evidence was that it contained only a food container. It was however open to the jury to reject that aspect of his evidence or, possibly conclude that he had assisted by participating in the transfer of a decoy package.
Caption summary
[20] Mr Chambers also said that the Crown caption summary of facts had been provided to the jury and was misleading concerning the bag which had been handed to Christian Clifton. In relation to the Crown caption summary, Mr Lawry said that, having looked into the matter, he was satisfied that the Crown caption summary did not go to the jury. It was given to the Judge and then only following conviction. There was no point in giving it to him earlier as there was a trial. We accept this is what would happen in the normal course and that we have been pointed to no evidence that would suggest that the summary actually did go to the jury. There is accordingly nothing in this point.
[21] It is convenient also to address at this point another aspect of the evidence against Christian Clifton which his counsel sought to challenge by calling further evidence on appeal. A witness, Andrew Ellis, who is the brother of Ms Ellis, gave evidence at the trial that the appellant was at Farquhar Road, with the other two appellants, before they left for Rimu Street to pick up the package. This had indicated to the jury, counsel said, that Christian Clifton knew of the imminent delivery. Mr Chambers asked us to admit an affidavit made by Mr Ellis in support of the appeal in which he said he had made a mistake at the trial in saying that Christian Clifton was at Farquhar Road before his sister and Mr Clifton’s brother had left that morning. There was, however, no sound basis to do so in terms of the well known principles for the admission of further evidence on appeal. The evidence was not “fresh”.
[22] More importantly we do not accept that this evidence was of particular significance at the trial. Christian Clifton himself gave evidence of having telephone conversations with Russell Clifton between 10am and 10.15am on 29 March 2001 and of receiving a telephone message from him thereafter, following which he went from Farquhar Road to Rimu Street. They were in communication before the package arrived. The evidence of Andrew Ellis, assuming it was true, is accordingly of no cogency and does not help the appellant.
Police involvement
[23] The appellant also sought to call fresh evidence from Linda Clifton, which was said to indicate that a DHL courier envelope had been unlawfully taken from the premises of Christian Clifton and his wife prior to the commencement of a formal investigation into the appellants’ alleged association with drug importation.
[24] There had been reference to a DHL envelope at the trial, during the evidence of Mr Berry, a senior drug investigator with Customs. Some time after the arrest of the appellants he interviewed an employee of Customs who was along with the appellants charged with being part of their conspiracy to import, and their importation of amphetamine. One of the charges brought against that defendant was the subject of a Judge’s direction to acquit and the jury acquitted that defendant of the other charge.
[25] Mr Berry said that during his interview that defendant was asked about what items had arrived at the house of Russell Clifton and Ms Ellis during a period in January and February 2001 when he was house sitting for them while they were overseas. He was asked in particular about mail that had arrived and was shown, Mr Berry said, a DHL courier envelope indicating it had contained two videotapes and an insurance letter. Mr Berry said he did not know if the courier envelope concerned was recovered from the house when it was searched, or not.
[26] No counsel cross-examined Mr Berry, but his counsel sought to advance on appeal a theory that the envelope was taken from Christian Clifton’s house by a police officer and his wife Jackie (who is the sister of Mrs Clifton) in circumstances which amounted to collecting evidence prior to commencement of a formal investigation. According to counsel had the circumstances been known at the trial Christian Clifton would have sought to have the charges dismissed, on the basis that what had happened tainted the subsequent investigation, surveillance and searches that had resulted in his conviction.
[27] The deponent Linda Clifton is the sister of Christian Clifton. She referred to a family meeting held in December 2000 concerning drug taking by her brothers. It was attended by the police officer and Jackie. Jackie had referred to going to Christian Clifton’s home and searching it looking for drugs. She had found and taken away a small bag of amphetamine. The theory was that other items had also been taken including the DHL envelope and the matter reported to the police by the woman’s police officer husband.
[28] There was also hearsay evidence from Linda Clifton that the police officer had told her mother late January 2001 that Christian Clifton and his wife had been arrested with drugs on arrival at Auckland Airport from overseas, the circumstances indicating that the officer was working on the case. Mr Chambers sought to show that the circumstances indicated that Jackie was a police agent, acting at the behest of her husband who had taken the DHL envelope and amphetamine from Christian Clifton’s home office as part of an unlawful search. He accepted before us that the theory was somewhat speculative but linked it to what he said was the failure of the police to disclose where the DHL courier package came from.
[29] Had we decided to receive Linda Clifton’s affidavit, the natural inference we would draw from its contents would have been that Jackie was not a police agent but a civilian who acted as a concerned relative in searching her sister’s bag and an office at her home for signs of drug abuse. The evidence seen in that light has no cogency and does not advance the appeal.
[30] Furthermore, we were given no verified factual basis for the appellant’s theory that sought to link the relative’s alleged search with what Mr Berry said he had shown to the customs officer defendant during his interview with him. Mr Lawry in those circumstances was content to rely on the statement made by Detective Sergeant Sowter, in a letter to Mr Chambers, that formed part of Christian Clifton’s affidavit in support of the application to admit Linda Clifton’s evidence. Mr Sowter said that he had been informed by Mr Berry that the document shown at the interview was in fact a copy of a “DHL Shipping Airway bill” addressed to both Russell Clifton, and the customs officer, who was looking after his home in Farquhar Road when the related package arrived. Mr Lawry also said that the bill had been located during the search of Farquhar Road on 29 March 2001 and gave particulars of its disclosure to the defence.
[31] The letter from the Detective Sergeant which indicated the Police position was in the hands of counsel for the appellant over a month before the hearing of the appeal.
[32] Overall we are satisfied that there is no merit in the contention that there had been an illegal search by the police officer concerned or his wife. Their actions had no relevance to the trial.
[33] The next complaint about the evidence called at the trial concerned questions put to Christian Clifton when he was interviewed at his home by Detective Aumua. The ground of appeal here is that the Judge should not have admitted evidence concerning what took place after the formal interview had concluded. In the course of the interview Christian Clifton had said he wished to telephone his lawyer and he did so in private. On his return he said that he had been advised not to say anything else or to sign anything. At the Detective’s invitation he read through the record that the Detective had made of the interview in his notebook but declined to sign the notes. The Detective’s evidence continued:
I said what I’d like to do now is the other staff have found some items of interest here at the address, I’d like to show them to you, okay. He said sure. When you say that the other staff had found items of interest, what were you meaning generally?….You mean in respect to the items that were found?
I take it the other staff while you were speaking to Christian Clifton other staff were searching the address were they’d? Other staff were searching the address and some of them had located items that was to be brought to the defendant’s attention.
So then did you then go round the house and the various parts of the property, pointing out various items that had been located? Yes that’s correct.
[34] The Detective then gave evidence of the appellant’s responses to questions concerning various containers and their contents that had been located and put aside during the search. He was also asked about documents that were found in his office that had been downloaded and which related to manufacture of methamphetamine.
[35] At this point in Detective Aumua’s evidence he raised another matter:
Did you also request that he undergo an ultraviolet light test on his hands and arms and his clothing? Yes I did.
Was the procedure explained to him as to how that would work? Yes the procedure was explained to him. However the defendant declined and requested that he wanted to contact his solicitor at that time. Which he did.
In any event did you seize his clothing, his tee shirt, his jeans and his boots from him so they could be later examined for signs of dye? Yes I did.
You’re aware that an ultraviolet light test was conducted on the tee shirt and the jeans? Yes I was.
And were you made aware of the results of that test? Yes I was made aware of the results and I subsequently resumed speaking to the defendant. I said to him, dye has been located on your trousers. He said, what does that mean? I said, the package that was delivered today had what we call a dye trap. That’s an invisible dye that we put on the parcel which can only be seen with an ultraviolet light. It indicates to us whether anyone has handled the package. The fact that it was on your jeans indicates to us that you have handled the package. Do you want to say anything about that? He said, no.
[36] At the trial, counsel for the appellant objected to the admission of this evidence on the basis that the formal interview with Christian Clifton concluded when he said that he did not want to answer further questions. The trial Judge did not accept that the appellant had done more than indicate he had received legal advice as a result of which he would not sign the policeman’s notebook. Although he had also been advised not to say anything further Christian Clifton had chosen not to follow that advice. He had, however, accepted subsequent advice concerning taking an ultraviolet test and had refused to do so. The Judge saw nothing which indicated that there had been oppressive or persistent questioning following a clear indication that the appellant wished to avail himself of his rights. The evidence of the entire interchange was accordingly admitted.
[37] In this Court, Mr Chambers argued that the approach taken by the police had been deceptive and unfair to the appellant. The detective should have refrained from asking further questions and, at least, submitted his notes of what was said concerning the items found in the house to the appellant, as he had done earlier. Failure to do that was in breach of police procedures and raised questions concerning the accuracy of what was recorded. As a result, counsel submitted, the Crown had unfairly bolstered its case concerning the substances and material that was found.
[38] Mr Lawry, for the Crown, submitted that the Crown had not relied on Mr Clifton’s evidence to identify substances in issue and had called evidence of analysis by an ESR scientist on that matter. The evidence indicated that Christian Clifton is a mature person who well understood his rights, including that of silence, and he had elected to waive it. The answers that he had given to questions concerning substances found at his home had largely been exculpatory and he had elected to give them in his own interests.
[39] The circumstances in which an appellant who has been cautioned, initially invokes the right to silence but later agrees to answer questions will vary. Where the police conduct is oppressive the effect is likely to be that the right under s 25(d) of the New Zealand Bill of Rights Act 1990 not to be compelled to be a witness is denied. A recent instance is R v Kokiri (2003) 20 CRNZ 1016. But in other circumstances involving a change of mind the rights will not be breached. We agree with the Judge the flavour of the continuing questioning of the defendant, while the appellant and the detective were looking at the various items located during the search, lacked any element of oppression. Mr Clifton, in the end, had responded to questions at this point because he thought it better to give explanations immediately for the presence of items indicative of drug manufacturing at this home. The circumstances indicated that he did so voluntarily.
Tracking device
[40] Mr Chambers also took issue with the absence of disclosure concerning placement of a tracking device. The evidence of the customs officer at trial was that a device was included when in the course of repackaging the item delivered to Rimu Road but that no use was made of it. The defence did not seek to make an issue of this at the trial and the precise facts concerning it did not come out. There is accordingly no relevance to this complaint.
Judge’s misdirection grounds
[41] The first issue raised on behalf of Christian Clifton, concerning the Judge’s directions, is that the Judge failed to direct the jury that the Crown had to prove its case against each accused by evidence showing that the accused knew of the importation and both intended to and did assist in an overt way. We immediately make the point that the essence of conspiracy is the manifestation of an agreement and it is not necessary to show that steps were taken to carry it out. The submission concerns the conviction of Christian Clifton on the importation and conspiracy to import charges.
[42] Mr Chambers argued that, if the jury had been correctly directed, it was unlikely that the appellant would have been convicted in light of the limited evidence against him on the charges of conspiracy to import and importation of amphetamine. Early on in his summing up the trial Judge told the jury they had to consider separately the position of each accused, come to a separate considered decision about each and do so in relation to each charge. The direction in relation to the conspiracy count followed immediately and was followed by that concerning the importation. The Judge said that while it was not necessary that each accused knew, at the time of their agreement, every last detail of how the crime was to be committed, it had to be proved that they knew at least the essentials of what was to be done. The Crown had to prove that each accused knowingly and willingly joined in the agreement making the commission of the crime more likely.
[43] In relation to count 2, which charged Christian Clifton (along with the other two appellants) with the importation of the package that arrived at Rimu Street, the jury were directed on when a person is a party to a crime. The Crown case was that each of the three persons charged was actively involved and the Judge emphasised that intentional assistance in the commission of the offence was the essence of being a party.
[44] In relation to Christian Clifton’s role in the conspiracy, the Judge summarised the Crown’s case as being that he was the link man with the customs officer who was a defendant. In relation to the importation the Crown had said he had been so immediately and intimately involved when the package arrived that the inference could be drawn that he had been knowingly and willingly part of the importation from the outset.
[45] These aspects of the summing up in relation to the charges Christian Clifton faced, concerning the conspiracy and importation of amphetamine, make plain that there is no basis for his counsel’s submission that the direction was inadequate in relation to this appellant’s knowledge, intent and actual assistance in the importation. Nor was it deficient in relation to what the individual alleged conspirators said or did in relation to the others. It is well established that utterances and statements made by others can be taken into account by a jury provided that there is other evidence that a conspiracy is probable. Nor did the Judge fail to properly separate the evidence and focus the jury on particular charges and the position of each accused in the summing up. It is true that the Judge traversed the essential evidence for each charge on a global basis. He had, however, earlier emphasised the importance of considering the position of each accused separately. We are satisfied that there is no point of substance in this ground of appeal.
[46] As Mr Lawry submitted, this branch of the appeal is in substance a complaint over the sufficiency of the evidence to found the conviction of Christian Clifton in the two counts. The reality is that there was evidence of circumstances immediately before and after receipt of the package by Ms Ellis which the jury was entitled to accept proved Christian Clifton was involved in the conspiracy and the particular importation. He had gone to the Farquhar Street property and been in telephone communication with the other appellants prior to delivery of the package. He had gone to Ellis Road very soon after the package arrived and been given a bag by Ms Ellis to take back to Farquhar Street. It was open to the jury to conclude that the package delivered by police and customs was inside it. When the package was opened he was apparently near enough to it to get dye from a customs dye trap on his clothes. He was seen fleeing from the Farquhar Street property by a customs officer and the small amphetamine bag that had been put into the intercepted package was found on his flight path where it had, apparently, been thrown. The speed of these events and their close sequence of themselves could give rise to an inference by the jury that Christian Clifton had not only knowingly assisted in the speedy transfer of the package to Farquhar Street on its arrival but was fully acquainted in advance with the arrangements to import the package and its original contents and was a party to that importation. On that inference, his role was immediately to move the package and its contents to a different address in case the authorities had Rimu Road under observation or searched it.
[47] There was also other evidence pointing to Christian Clifton’s involvement in the importation prior to the delivery, including emails indicating arrangements for drug acquisitions, at a time when Ms Ellis and Russell Clifton were overseas, to addresses where he was able to access them. There is no direct evidence that he had opened them but the jury were able to conclude they were intended for him and implicated him in plans to import drugs.
[48] Mr Chambers was also critical of a reference by the Judge in his summing up to Christian Clifton being caught by the dye trap. The Judge said:
The dye trap is said to be significant. It was, after all, only the plastic bag inside the blue bags which was dyed with the powder. The packages were carefully screened layer by layer to ensure that there was no contamination on the outer packaging and it is the Crown case that there was not, and therefore the flecks or traces of the dye found on the various accused indicate a handling of the package of amphetamine.
…
Mr Christian Clifton did not consent to a scan and he is not obliged to consent to a scan, but police found on his jeans some dye traces on the knee, thigh and pocket. It is the Crown position that, indeed, he may well have received these traces when, as the Crown says, he ran out of the house with this smaller bag of substance and threw it away, and that is how he gets the dye on his hands.
[49] There was no evidence that Christian Clifton had dye on his hands. Indeed, as the jury were well aware from evidence already set out, his hands were not tested. The mistake in expression is not however of significance as the presence of dye did demonstrate that Christian Clifton was in close proximity to the package when it was opened, and it was a reasonable inference that he was probably involved.
[50] Overall the Crown’s case, as put by the Judge, was that the jury could infer, in particular as a result of evidence pointing to his dealing with the package after arrival, that Christian Clifton was a party to the importation and the prior conspiracy. The Judge told the jury that it was insufficient that he was a witness to wrongdoing and if any knowing involvement by him did not take place until after the package arrived then he was not guilty of the two counts. But there was more than sufficient circumstantial evidence in relation to what happened for the jury to conclude otherwise.
Computer bookmarks
[51] Quite apart from the evidence concerning the events on 29 March 2001, the Crown called evidence of bookmarks downloaded from computers to which Christian Clifton had access at his home at Forrest Hill Road. There were also bookmarks downloaded from a computer located at Farquhar Street during the police search. These bookmarks contained emails stored on the hard-drive of the respective computers. They came from a number of sources including a hotmail website linked to Ms Ellis and Russell Clifton and used while they were travelling abroad in late 2000 and early 2001. Messages could be sent to, stored at and accessed from the website with the use of a password which could be kept secret. Some downloaded material, found on the computers concerned, discussed in code language various matters concerning the importing or handling of illicit drugs during the period between September 2000 and 26 March 2001. It included material which the Crown said related to steps taken in relation to the importation of amphetamine completed with delivery of the package on 29 March 2001, and an earlier test import. If the jury concluded that some of this material had been accessed by Christian Clifton at his home, or perhaps at Farquhar Street, it was evidence they might consider indicated his knowledge and participation in the conspiracy and importation. Mr Chambers argued before us that the evidence indicated there were or may have been viruses on Christian Clifton’s computers which indicated there had been tampering perhaps by a hacker. He also took issue with whether Christian Clifton had accessed the material but in both instances these were questions to be put to the jury. The reality is that there was evidence in the form of emails including material apparently sent to him personally or accessed by him which could well have been viewed as relating to the conspiracy. The evidence was admissible and part of a wide range of evidence supporting the first two counts against Christian Clifton.
Direction – possession for supply
[52] Count 3 charged Christian Clifton, and other appellants, with possession of amphetamine for the purpose of supply. The main basis here for Christian Clifton’s appeal was that the Judge had not adequately directed the jury on the charge. Mr Chambers referred in particular to evidence concerning the bag handed to the appellant by Ms Ellis, the evidence of his fingerprints on the bag, the possibility of hackers interfering with his computer, and the fact that the dye on the package did not cover the small bag of amphetamine that it was said Christian Clifton had removed. He accepted however that the presence of precursors at both properties was of some significance.
[53] We see no basis for criticism of the Judge’s direction on this count. Christian Clifton’s defence was that he did not have possession of the drug. The Judge correctly directed the jury on the elements of possession in relation to control, knowledge and intention. He also covered the concept of joint possession and the need for ability to control the item. There was no challenge to the application of the presumption that possession was for the purpose of supply under s 6 of the Misuse of Drugs Act. In the end this ground also is no more than a criticism of the strength of the evidence which resulted in Christian Clifton’s conviction. This has been fully discussed already in this judgment. There was ample evidence on which the jury could conclude that the appellant had possession of the drugs, either solely or jointly with the other appellants. Mr Chambers did not identify an error of principle in the summing up, and accordingly there is nothing in this ground of appeal.
[54] Mr Chambers made further submissions on other points in relation to the evidence. We have considered these and conclude none adds in any material way a significant ground of appeal. Each ground of appeal by Christian Clifton against conviction fails and the appeal against conviction is accordingly dismissed.
Sentence appeals
Reasons for sentences imposed
[55] The Judge sentenced Ms Ellis, Russell Clifton and Christian Clifton on charges of conspiracy to import methamphetamine, actual importation of that drug, possession of it for the purpose of supply, conspiracy to manufacture methamphetamine, and possession of equipment and precursor substances for the purpose.
[56] The conspiracy was not confined to the single instance of importing drugs by mail. It also covered importing, initially by reference to a small test package, and later proposals to import a larger quantity of drugs through couriers. The substantive importation that took place involved a kilogram of the drug with a street value between $100,000 and $180,000 for which over $35,000 had been paid to overseas suppliers. The purchase price was to be $70,000. The charge of conspiracy to manufacture methamphetamine had been proven largely by the presence of precursor chemicals and glassware in the searches of the Forrest Road and Farquhar Street properties.
[57] The Judge described the offending as “at the most serious end of the scale”. He accepted that he should sentence the appellants on the importing charge on the basis of the quality of the amphetamine imported, rather than that which the appellants had expected to be bringing in. He also said that an aggravating feature of the offending was the degree of premeditation and planning over a considerable period of time, which were evidenced by material downloaded from the appellants’ computers. Another such feature in the case of the Clifton brothers was the use of expertise they gained while working in the security industry. He clearly proceeded on the basis that this evidence implicated each of the appellants. None of the appellants had significant prior convictions and each had, until this offending, been considered a person of good character. The Judge treated them all as first offenders. He did not otherwise, at least expressly, make any allowance for mitigating factors in the sentences he imposed.
[58] After referring to personal circumstances and references the Judge referred to considerations stated in this Court’s decision in R v Wallace [1999] 3 NZLR 159 and to subsequent sentencing decisions of the courts for similar offending. He observed that offenders should be sentenced only for proved offending and, except in relation to conspiracy cases, not for likely future activities. He also said that the need for deterrence precluded attaching great weight to personal circumstances. The Crown had submitted that a sentence of ten to twelve years would be justified but the Judge felt that aggravating features to that extent were not present. The offending did however take place over some months and involved a significant importation and agreement by the offenders to manufacture methamphetamine and to import further drugs.
[59] He sentenced Ms Ellis and Russell Clifton to nine years imprisonment on importing and possession of a class B drug for supply charges, to concurrent sentences of six years on conspiracy to manufacture charges and three years on possession of equipment and precursors charges. He accepted that there was room to differentiate Christian Clifton’s situation from that of the other two appellants, seeing his role was one of support and back up for the prime movers. On the importing and possession for supply charges he was sentenced to eight years and three months imprisonment. The concurrent sentences for other offending were the same.
Submissions on sentence appeals
[60] In R v Wallace at paras [30] to [32] this Court reviewed recent relevant sentencing decisions and set out three categories into which instances of commercial dealing in class B drugs including methamphetamine could be classified for sentencing purposes:
The cases reflect a considerable range in the seriousness of offending. They show that for commercial activity on a major scale the starting point before any allowance for mitigating factors for a principal offender will be in excess of eight years and in the very bad cases up to 14 years, especially where repeat offending is involved. For major offending of this kind there will likely be numerous separate offences so that the 14 year maximum penalty will have little direct relevance to the total offending.
Commercial manufacture or importation on a substantial scale reflecting sophistication and organisation with operations extending over a period of time though not involving massive quantities of drugs or prolonged dealing calls for a starting point in the range five to eight years.
For smaller operations, but representing commercial dealing, starting points of up to five years are appropriate. This necessarily must be a broad category to enable sentences to reflect the many varied circumstances that can arise.
The Court also observed that comparisons could not easily be made of sentences involving different drugs in the same class.
[61] Mr Mansfield for Russell Clifton argued that the Judge should have categorised his client’s offending as falling within the second category in Wallace, and chosen a starting point for sentencing of between 5 and 8 years imprisonment. He also took issue with the Judge’s view that Russell Clifton had used expertise, deriving in part from work done for the police, that had amounted to an aggravating factor. Counsel also submitted that the sentence did not reflect the fact that Russell Clifton was a first offender and previously of good character. He submitted that having regard to a full survey of previous sentencing decisions, which formed part of his submissions, a sentence of six to six and a half years imprisonment would have been appropriate.
[62] Similar submissions were advanced by Mr Sutcliffe for Ms Ellis. He also argued that the wrong sentencing range had been adopted by the Judge who should have treated the offending as of a type that called for a starting point of five to eight years rather than one in excess of that. Mr Sutcliffe suggested that the relatively short period of offending and its low level of sophistication might have warranted a starting point in the lower part of the middle range, discussing in some detail this Court’s approach in R v Hooker CA184/03, 28 August 2003.
[63] Mr Chambers made similar submissions on behalf of Christian Clifton.
Decision on sentence appeals
[64] Judge Field appears to have treated the offending as being at the lower end of the first and most serious category in Wallace. In sentencing Russell Clifton and Ms Ellis to terms of nine years imprisonment, after having allowed for the fact that they were first offenders, it would seem that he saw their offending as being of a kind that warranted a starting point of around ten years imprisonment. The main issue in the sentence appeals is whether that assessment of the seriousness of their offending has been shown to be wrong.
[65] The key elements of the criminality of all three appellants were the planning of importation of amphetamine, coupled with an actual instance of importation involving amphetamine with a street value of $100,000 to $180,000 (reflecting the relatively low degree of purity of the drugs actually brought in New Zealand). As well, all three appellants had planned the manufacture of methamphetamine and obtained precursor substances.
[66] It seems that there was no evidence of actual sales nor of actual manufacture in either of the two locations in which precursors were found.
[67] We have some difficulty in seeing why the Judge translated the prior involvement of the male appellants in the security industry into an aggravating factor. The view that the offending had been planned and premeditated seems to us rather to turn on the use of coded electronic means of communication over a period of months and in a manner designed to be secure from detection.
[68] The most important factor for the Judge, in his assessment of the seriousness of criminality, was the volume of amphetamine that was imported. He rightly saw one kilogram as “significant by any standards”, even if the purity at around 7% was less than what had been anticipated. The Judge of course also had the advantage of being able to assess credibility against the full scope of the offending outlined in the course of the trial.
[69] Classification of offending by this Court into the most serious category has generally been reserved for cases involving very substantial amounts of drugs, often coupled with repeated instances of offending. In R v Scanlan CA556/99 12 April 2000, an isolated purchase of $370,000 worth of ecstasy, as part of a conspiracy to import, was accepted as capable of attracting a starting point of ten years. Similarly, in R v D CA43/00 23 March 2000, involving importation of ecstasy valued at around $370,000 where a professional drug courier was used, a sentence of ten years was considered to be the higher end of the available range. In R v Watkins CA354/97 26 February 1998, a starting point of nine years was upheld for a single importation of amphetamine valued at around $470,000. It was described by the Court as a large scale commercial operation. Other cases involving starting points of around ten years have generally involved major operations marked by high street value. Instances include R v Suwala CA454/02 28 August 2003 (MDMA, $750,000) and R v Panzer CA67/02 2 May 2002 (Amphetamine, 12 years, two kilograms, high percentage purity, worth millions when cut and resold).
[70] By contrast, commercial operations on a lesser scale have been held to fall into the second or third category in Wallace – eg R v Andrell CA69/02 29 August 2002 (two counts of manufacturing, value of first unclear, value of second up to $56,000).
[71] In R v Martin CA91/02 4 July 2001, this Court appears to have accepted that a single instance of importing 900 gms of amphetamine fell within the second category. A sentence of four years imprisonment was imposed. The operation was relatively sophisticated, with a package being sent to an automotive repairs shop and the appellant retrieving it when he went to get his car fixed. The importation was in two separate packages. However, the question of categorisation was not addressed in the judgment.
[72] Some features of the present case indicate the similarities with the more serious category of offending identified in Scanlan and Watkins. They include in particular the relatively sophisticated electronic communications involving individually coded email account folders being used to prevent the tracing of messages. As well, a test run was apparently undertaken and a customs officer may have been involved in assisting the offending. Cameras were set up to monitor activity outside Rimu Street and there was a strategy put in place to avoid detection on receipt of the package. The appellants’ scheme also seems to have been intended to develop into importing and manufacturing methamphetamine on a major scale.
[73] On the other hand, there is the important distinction that the sole importation proved was of a lesser scale than the offending in Scanlan and Watkins. In a sense the appellants’ operation was closed down before it got going. Although the Wallace categories are not precisely defined ones, and the offending also involves conspiracy to manufacture, there is difficulty in categorising the seriousness of what happened in this case as commercial drug dealing on a major scale. Nor do we consider that it involved aggravating factors justifying the sentence above the maximum starting point of eight years imprisonment.
[74] On balance we conclude that the offending of all three appellants should have been treated as at the top end of seriousness within the second category of offending identified in Wallace. Having regard to their previous good records Ms Ellis and Russell Clifton should therefore have received a sentence of seven and a half years imprisonment rather than nine years. Accepting the Judge’s view that the culpability of Christian Clifton was a little less, his sentence should have been six years and ten months imprisonment rather than eight years and three months imprisonment.
Outcome of appeals
[75] The appeals against conviction of Philippa Ellis and Russell Clifton were abandoned. Their appeals against sentence are allowed, the sentences of nine years imprisonment imposed on each of them quashed and substituted by respective sentences of seven and a half years imprisonment. The appeal of Christian Clifton against conviction is dismissed. His appeal against sentence is allowed. His sentence of eight years three months imprisonment is quashed and substituted by a sentence of six years ten months imprisonment.
Solicitors:
Thomas & Co, Auckland for Christian Paul Clifton
Till Henderson King, Hamilton for Philippa Marjorie Ellis
Crown Law Office, Wellington
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