R v Clarke - [2012] NZHC 2146

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2010-088-003872 [2012] NZHC 2146

THE QUEEN

v

WAYNE JOHN CLARKE KELLY RICHARD DODD NICKY BRYAN DODD TREVOR JOHN MCTAVISH MATTHEW KAWENA SMITH NELSON WILLIAMS

CRI-2011-088-004487

THE QUEEN

v

NICKY BRYAN DODD

Hearing: 24 August 2012

Counsel: B O'Connor for the Crown S K Ellis for Mr Clarke HDM Lawry for Mr K Dodd
N G Cooke for Mr N Dodd in CRI-2010-088-003872 and K C Bailey for Mr N Dodd in CRI-2011-088-004487
W D McKean for Mr McTavish
K C Bailey for Mr Smith
M Wharepouri for Mr Williams

Judgment: 24 August 2012

SENTENCE OF WOODHOUSE J

R V CLARKE AND ORS HC WHA CRI-2010-088-003872 [24 August 2012]

[1] Each of you – and I am addressing, of course, the offenders – appears today for sentence for drug offences. The offences relate to methamphetamine, the precursor substance pseudoephedrine and cannabis, although not all of you are to be sentenced for offences relating to all three substances. I will provide the particulars of the offending, to the extent necessary, when I come to deal with the sentence for each of you individually. There are also offences of money laundering, robbery, and unlawful possession of a pistol and explosives.

[2] All of the offending is serious. There are offences of supplying and offering to supply methamphetamine with a maximum penalty of life imprisonment. There are offences of conspiring to supply or conspiring to manufacture methamphetamine with a maximum penalty of 14 years imprisonment. The robbery offence, on which Mr Nicky Dodd is to be sentenced, has a maximum penalty of 10 years imprisonment. The offence of offering to sell cannabis has a maximum penalty of eight years imprisonment. Offences of conspiring to supply a precursor substance, conspiring to supply cannabis, cultivating cannabis and money laundering each has a maximum penalty of seven years imprisonment. The offence of possession of equipment for cultivating cannabis, on which Mr McTavish is to be sentenced, by itself has a maximum penalty of five years imprisonment. The firearms charges, on which Mr Smith is to be sentenced, have a maximum penalty of four years.

[3] All of you pleaded guilty to the offences for which you are now to be sentenced. The charges arose from a Police operation between April and September
2009 primarily directed to the involvement of the Tribesmen gang in methamphetamine and other drug offending in Northland. A large body of evidence was obtained, and in particular from telephone records and intercepted telephone conversations. I do not intend to go into the detail. I take account of the relevant evidence and in particular when I come to fix starting points for the lead offences for each of you. The cannabis cultivation and some of the other offences were discovered when the Police operation was ended in October 2009 with execution of search warrants.

[4] For the offences of supplying and offering to supply methamphetamine there is the Court of Appeal tariff case of Fatu,1…

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 R v Clarke

Details

AGLC: R v Clarke [2012] NZHC 2146
Case: [2012] NZHC 2146
Decision Date: 24 August 2012

CaseChat Overview and Summary

In R v Clarke, the High Court of New Zealand sentenced six defendants for various drug and related offences. The defendants were part of a larger group involved in drug trafficking, and the court sentenced each defendant based on their individual involvement and the nature of their crimes. The legal issues addressed included determining the appropriate starting points for each defendant's sentences, taking into account the Court of Appeal's tariff and guideline cases, as well as considering the impact of the defendants' guilty pleas and any other mitigating or aggravating factors. The court applied the principles set out in relevant cases and adjusted the starting points for each defendant accordingly. The final sentences ranged from concurrent terms of imprisonment to short prison sentences, depending on the individual circumstances of each defendant.

Orders