Clifton v R
[2013] NZCA 85
•27 March 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA653/2011 [2013] NZCA 85 |
| BETWEEN CHRISTIAN PAUL CLIFTON |
| AND THE QUEEN |
| Hearing: 5 March 2013 |
| Court: Ellen France, Keane and Miller JJ |
| Counsel: H D M Lawry for Appellant |
| Judgment: 27 March 2013 at 12.30 am |
JUDGMENT OF THE COURT
A The appeal against sentence is allowed.
BThe sentence of life imprisonment is quashed. A sentence of 20 years imprisonment, with a minimum period of imprisonment of 10 years is substituted. The other sentences imposed by the District Court remain.
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REASONS OF THE COURT
(Given by Keane J)
Introduction
On 21 September 2011 Christian Clifton was sentenced in the District Court, Auckland, to life imprisonment for 10 offences of manufacturing methamphetamine.[1] He was sentenced to concurrent finite terms of imprisonment for lesser allied offences culminating in a conspiracy to supply and supply. On this appeal, he contends, his sentence of life imprisonment is manifestly excessive.
[1] R v Clifton DC Auckland CRI-2009-004-8537, 21 September 2011 [sentencing remarks].
The sentencing Judge, Judge Wade, Mr Clifton contends, erred in finding at a disputed facts hearing that he had manufactured 1.35 kilograms of methamphetamine in total and in relying on that total to deem him a manufacturer in the most serious category, R v Fatu band four.[2] He says that he ought to have been sentenced on the basis that he had offended on 10 separate occasions, each at the least level attracting Fatu band one.
[2] R v Fatu [2006] 2 NZLR 72 (CA).
The Judge, Mr Clifton submits, sentenced him to life imprisonment on two wrong premises. The Judge held him to be the primary player in this manufacturing and supply network. He was not. He was answerable to his main financier, William MacFarlane, whom the Judge had earlier sentenced to 14 years imprisonment.[3] The Judge also wrongly held that he manufactured for profit. In 2011 especially, but even earlier, he contends, he manufactured because he was being stood over by gang members.
[3]R v MacFarlane DC Auckland CRI-2009-004-18537, 25 August 2011; MacFarlane v R [2012] NZCA 317.
In imposing life imprisonment, Mr Clifton contends finally, the Judge left out of account the basis on which he pleaded: that the Crown had agreed in principle not to pursue a starting point in excess of 15 years imprisonment. The Judge also wrongly equated him, he argues, with the only methamphetamine manufacturer who had until then been sentenced to life imprisonment, Albert Rhodes.[4]
[4] R v Rhodes [2009] NZCA 486.
The Crown contends that in imposing that maximum sentence the Judge made no error. The scale on which Mr Clifton had manufactured placed him amongst those most extreme drug offenders for whom that penalty is prescribed. He manufactured while on parole for related offences. After he was arrested and bailed, he attempted to resume manufacture.
If we do find life imprisonment for the manufacturing offences manifestly excessive, the Crown contends, Mr Clifton should be sentenced finitely, as the Judge otherwise intended, to imprisonment for 21 years subject to a minimum term between 10–14 years. Mr Clifton then contends for a 20 year sentence and a nine year minimum term.
Offences
Mr Clifton was arrested on 14 August 2009 at the conclusion of Operation Royale, a police investigation into large scale manufacture and supply of methamphetamine on an Auckland–Tauranga axis. At the time of his arrest he had just extracted sufficient ephedrine to manufacture 737 grams of methamphetamine.
In the five months before that, the Crown’s case was, Mr Clifton manufactured 10 times, each time relying on his co-offenders to get him the precursor substances and other materials he needed, and to dispose of what he had manufactured. On the Crown case, his main financier was William MacFarlane, who advanced him $120,000 for two of the 10 manufactures, but he remained the principal player.
There was no direct evidence as to the scale of manufacture. The Crown’s case depended in part on the equipment and materials discovered on Mr Clifton’s arrest but more on intercepted telephone conversations and text messages. On that basis the Crown contended his yield over those five months must have been of the order of 1.7. kilograms. At a disputed facts hearing the sentencing Judge held Mr Clifton accountable for 1.35 kilograms.[5]
[5] R v Clifton DC Auckland CRI-2009-004-18537, 12 September 2011.
At the date of his arrest, Mr Clifton was on parole, having been sentenced in November 2004 to imprisonment for six years, 10 months, for conspiring to deal in and for possessing for supply class B drugs, including precursor substances. After his arrest he completed that sentence, which ended in August 2010. He was then held in custody until his trial, which was to begin on 14 February 2011. He then pleaded to the 24 counts he faced and his trial Judge, Judge Wade as it happened, granted him bail; a decision the Judge came to regret.
On 8 March 2011 the police executed a search warrant at a Wellsford rural address. They discovered Mr Clifton in the process of manufacture. He had enough pseudoephedrine hydrochloride to manufacture 183 grams of methamphetamine, and enough other materials to manufacture much more. He was charged with attempted manufacture and allied offences.
Decision under appeal
On sentence Judge Wade described Mr Clifton as “one of this country’s most significant methamphetamine manufacturers”.[6] He had, the Judge was satisfied, manufactured as prolifically as he had for financial gain. That he had no assets to speak of when he was arrested was neither here nor there. The Judge concluded that, just as money had come freely into his hands, so he had freely spent it.
[6] Sentencing remarks, above n 1, at [4].
Mr Clifton, the Judge said, had been manufacturing methamphetamine, as he himself had admitted, since 2000. In 2004 he had been sentenced to a lengthy term of imprisonment for drug offending extending back to 2001. Also aggravating was his March 2011 offending while on bail. On his arrest he was about to embark on a large scale manufacture.
The Judge then explained why he had decided that Mr Clifton must be sentenced to life imprisonment. Mr Clifton, he said, was as serious an offender as Albert Rhodes, who had been sentenced to life imprisonment because he was “a menace to society”.[7] Then, he said, the finite term Mr Clifton deserved could only be “wholly crushing”.[8] Life imprisonment was more merciful and positive.
[7] Above n 1, at [13].
[8] Above n 1, at [15].
If he were to impose a finite sentence, the Judge then explained, he would take a 20 year starting point for the manufacturing offences, uplifted by two years for Mr Clifton’s previous related convictions. He would impose cumulatively an eight year term for Mr Clifton’s 2011 offences. He would reduce to 21 years the resulting sentence, 30 years, on account of the totality principle and Mr Clifton’s pleas. He would impose a minimum period of imprisonment (MPI) in the range 10–14 years.
In all likelihood, the Judge said, Mr Clifton would find such a finite sentence, especially the MPI, so crushing that he would make no attempt to rehabilitate himself. But under a sentence of life imprisonment, subject to the lowest MPI the Judge could impose, 10 years, Mr Clifton would have reason to hope and an incentive to take his life in hand.
Grounds of appeal
We see no merit in Mr Clifton’s first ground of appeal that on the Crown’s case, founded on inferences from text traffic principally, the Judge could not have been satisfied beyond reasonable doubt that his yield from the 10 instances of manufacture was 1.35 kilograms.
We have reviewed the Judge’s findings of fact at the disputed facts hearing, as we are obliged to do.[9] The Crown’s witnesses were not challenged by Mr Clifton’s then counsel and the Judge was entitled to accept their evidence at face value. He did not do so uncritically. His yield estimate was significantly less than that urged by the Crown, 1.7 kilograms. His findings of fact were accepted on sentence. They were plainly open to him.
[9]Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16]; Heke v R [2010] NZCA 476 at [18]–[20].
We see no merit in Mr Clifton’s second point that he should have been rated a Fatu band one offender, on each instance of manufacture, not a band four offender on the aggregate yield. That is unreal in two senses. In the case of methamphetamine manufacture, band one does not apply; and over the five months Mr Clifton manufactured continuously until his arrest. He was clearly within band four.
We see no merit in Mr Clifton’s third point that the Judge was wrong to find him the principal player. On the evidence at the disputed facts hearing he not merely manufactured. He ensured he had what he needed from his co-offenders, including the money called for. Mr MacFarlane financed two only of the 10 instances of manufacture,[10] and he was not the principal player.
[10]R v MacFarlane, above n 3; MacFarlane v R, above n 3.
Mr Clifton’s fourth point that he manufactured under pressure, was advanced by his then counsel on sentence. His former partner and a former flatmate alleged harassment as early as 2008. The Crown, it appears, accepted that in 2010 three gang members visited Mr Clifton’s home three times, twice to extort money. His parents were also visited. In March 2011 he was attacked in prison and his jaw broken.
The Judge only referred to this submission obliquely when he held that Mr Clifton had manufactured for financial gain and must have spent all that he earned. But, in deciding on the scale of manufacture at the disputed facts hearing, the Judge had text messages in which Mr Clifton had looked for money to manufacture and in one instance negotiated a profit split. He had those and other grounds to be sceptical.
All of that said, we see merit in Mr Clifton’s ultimate ground of appeal. An indeterminate sentence of life imprisonment is not, as the Judge held, more merciful than the determinate sentence, 21 years with a 10–14 year MPI, he would otherwise have imposed. In the case of Mr Clifton and his offending it is manifestly excessive.
Life imprisonment is imprisonment for life. Unless a judge imposes a higher MPI it attracts a 10 year non parole period.[11] A grant of parole is not then to be assumed. The Parole Board may always make a postponement order.[12] A parolee is monitored and may always be recalled.[13] An offender sentenced to life imprisonment is subject to that regime for life.
[11] Parole Act 2002, s 84(3).
[12] Section 27.
[13] Section 61.
Nor did the Judge need to impose life imprisonment to impose a 10 year MPI instead of the 10–14 year MPI he otherwise had in mind. An MPI above the minimum non parole period can never be more than is required to serve the statutory purposes of sentence. If the Judge thought a 10 year MPI proper for an indeterminate sentence he can hardly have thought it improper for a finite sentence.
Finally, a sentence of life imprisonment in the case of Mr Clifton, and his offending, does not stand scrutiny when compared with other band four cases, and that is so whether the focus is on his manufacturing offences or on his offending in totality.
Comparable cases
Life imprisonment, according to the Crown, has only been imposed on drug offenders in five instances. Three concern importing or possession of heroin and are not directly in point.[14] Of the two that do concern methamphetamine one, Chen v R,[15] involved the importation of 96 kilograms of methamphetamine and stands by itself. The bench mark case is R v Rhodes,[16] to which the Judge referred.
[14]R v Curtis [1980] 1 NZLR 406 (CA); R v Beri [1987] 1 NZLR 46 (CA); R v King CA442/96, 27 May 1998.
[15] Chen v R [2009] NZCA 445; [2010] 2 NZLR 158.
[16] R v Rhodes, above n 4.
Mr Rhodes was sentenced to life imprisonment on two bases.[17] First he was the “king pin” in a major manufacturing and supply ring, and was himself responsible for a 1.4 kilogram manufacture and a 365 gram offer to supply. Second, he had just part served a 14 and a half year sentence in Australia, and was still on parole, and remained subject to a $20 million pecuniary penalty order for cannabis offending and a $1 million order for methamphetamine offending. The sentencing Judge described him as “a menace to society”.
[17] See at [86]–[99].
This Court upheld as “inevitable” Mr Rhodes’ sentence of life imprisonment.[18] But equally relevant for the purpose of this appeal is the sentence imposed on Mr Rhodes’ co-offender, Stephen Kissling, whom the sentencing Judge described as Mr Rhodes’ “trusted sidekick”, which this Court also upheld: imprisonment for 20 years with a minimum nine year term.[19] Mr Clifton aligns himself with Mr Kissling.
[18] R v Rhodes, above n 4, at [98].
[19] At [100]–[116].
In that instance this Court described as “unassailable” the starting point taken, 16 years, and the three year uplift for further related offending for which concurrent sentences were imposed and the one year uplift for previous drug offending.[20] Mr Kissling’s offending, this Court held, lay well within band four. His sentence could only be seen to be lenient, more especially as he too had not long been released from a lengthy term for drug offending in Australia, of eight years.
[20] R v Rhodes, above n 4, at [108].
No less relevant are the nine instances the Crown has identified in which finite sentences have been imposed for manufacturing offending in which the yield has exceeded one kilogram of methamphetamine. We need refer only to the three such sentences that were upheld on appeal by this Court.
In R v Webb,[21] manufacture in excess of one kilogram was admitted to and on arrest the offender was found to have the equipment and materials necessary to manufacture almost a kilogram more. A 12 and a half year sentence imposed from a 14 year starting point, and a 50 per cent minimum term, were upheld on the appeal. This Court described the offending as “clearly very serious”.[22]
[21] R v Webb [2008] NZCA 487.
[22] At [11].
In Peters v R,[23] the yield on one count of manufacture exceeded 520 grams, but the offender had charge of a number of cooks and was responsible for the manufacture of 2.9 kilograms. He had committed allied offences. A 15 year sentence was imposed from a 16 year starting point, coupled with a seven and a half year minimum term. That sentence too was upheld by this Court.
[23] Peters v R [2012] NZCA 252.
In Beckham v R,[24] a case complicated by the fact that the sentence under appeal had been reduced to allow for a sentence later quashed, the sentence that would otherwise have been imposed was upheld: an 18 year sentence from a starting point of 19 years, coupled with a 50 per cent minimum term. There two instances of manufacture yielded 2.36 kilograms of methamphetamine and the offender was also accountable for two conspiracies to manufacture and allied offences.
[24]Beckham v R [2012] NZCA 603. The eighteen year figure incorporated a further discount of six months for time spent on electronically monitored bail, a matter not raised with the sentencing Judge.
As will be apparent from this array of cases, a life sentence for drug offending is exceptional, even for determined band four manufacturers with previous convictions. Mr Rhodes was only sentenced to life imprisonment because nothing less would have served. He was extraordinary in the sheer scale and in the persistent intensity of his drug offending. He was completely undeterred even by very lengthy terms of imprisonment.
Mr Clifton, by contrast, we consider, is more truly comparable with those other manufacturers in band four on whom finite terms of imprisonment have been imposed. We do not accept that he is to be equated with Mr Rhodes. We conclude that in his case a sentence of life imprisonment has to be manifestly excessive for his manufacturing offences and for his offending in totality.
Result
We quash Mr Clifton’s sentence of life imprisonment for the manufacturing offences. For those offences we take a 16 year starting point. We increase that by seven years for his later attempted manufacture and by a further year for his previous convictions, a total potential sentence of 24 years imprisonment. Taking into account the totality principle and his late plea we sentence him to imprisonment for 20 years. We fix his MPI at 10 years.
Mr Clifton’s sentence in all other respects is not challenged and will remain as it is.
Solicitors:
Crown Law Office, Wellington for Respondent
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