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,…

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 Clifton v R

Details

AGLC: Clifton v R [2013] NZCA 85
Case: [2013] NZCA 85
Decision Date: 27 March 2013

CaseChat Overview and Summary

Christian Paul Clifton appealed against his life sentence for manufacturing methamphetamine, arguing that the sentence was manifestly excessive. The Crown argued that the sentence was appropriate given the scale of Clifton's manufacturing and his history of drug offending. The Court of Appeal found that while the District Court's findings of fact were supported by the evidence, the sentence of life imprisonment was excessive. The Court considered the circumstances of the case and compared it with other similar cases, concluding that a life sentence was not appropriate. The Court substituted a sentence of 20 years imprisonment, with a minimum period of imprisonment of 10 years. The other sentences imposed by the District Court remained unchanged.

The Court of Appeal found that the District Court's findings of fact were supported by the evidence and that Clifton's offending was serious. However, the Court considered that the sentence of life imprisonment was manifestly excessive. The Court noted that life imprisonment is exceptional for drug offenders and that it is only appropriate in cases where the offender is a significant menace to society. The Court found that Clifton was not comparable to Albert Rhodes, the only other methamphetamine manufacturer who had been sentenced to life imprisonment. Instead, the Court found that Clifton was more comparable to other band four manufacturers who had been sentenced to finite terms of imprisonment. The Court concluded that a sentence of life imprisonment was manifestly excessive in Clifton's case and substituted a sentence of 20 years imprisonment, with a minimum period of imprisonment of 10 years. The other sentences imposed by the District Court remained unchanged.

Orders