R v Clarke - [2012] NZHC 1692

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2011-085-006032 [2012] NZHC 1692

THE QUEEN

v

BRENDAN JOHN CLARKE

Hearing: 13 July 2012

Counsel: I R Murray for Crown
S Hewson for Prisoner

Sentence: 13 July 2012

SENTENCING NOTES OF DOBSON J

[1] Mr Clarke, you are appearing for sentence today, having pleaded guilty to one charge of possession for supply of the class A drug cocaine.1 This charge carries a maximum penalty of life imprisonment. You are here in the High Court for sentencing because the District Court has declined jurisdiction to sentence you.

Circumstances of offending

[2] The charge against you arises out of Police operations aimed at intercepting cocaine that was imported into New Zealand and sought to be distributed here. The first offender in the distribution chain was a foreign national, who had arrived at
Auckland airport carrying 2.985 kilograms of cocaine hidden under the hard plastic

1 Misuse of Drugs Act 1975, s 6(1)(f) and (2).

R v CLARKE HC WN CRI 2011-085-006032 [13 July 2012]

liner of a suitcase. ESR analysis has found that the cocaine was of 80 per cent purity, and on the Police estimate has a street value of some NZ$1 million.

[3] The Crown case is that the originally intended purchaser cried off, and a business associate of yours approached you to see if you could find buyers for the cocaine. It is suggested in the summary of facts that he did so because of the prospect that you would have appropriate contacts from previous experience as a DJ. So the connection is made with you not because of any prior involvement in drug dealing.

[4] You expressed an interest in participating at that stage. You later changed your mind, and told the associate who had propositioned you that you were no longer interested in dealing the drugs. His response was that as the package was already en route to Wellington, you should take possession of it, and that he would collect it from you the following week. You agreed to receive the package and store it in a lock-up you had in Wellington.

[5] You duly took possession of the suitcase containing the cocaine and you paid the person who delivered it to you $2,000 for doing so. You had opened the suitcase to inspect the cocaine when the Police intervened. You explained that you had initially been the intended recipient of the cocaine and that you were going to sell it, but you later decided that you could not do so and therefore the suitcase was going to be passed on to somebody else. That version of that part of it, as you will have heard, is accepting Mr Hewson’s urgings of a view of your involvement more favourable than the Police would urge on me.

[6] [ ]

[7] So on the basis of those activities, you were charged with possession of cocaine for supply, that charge being laid on 20 December 2011, and you pleaded…

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 1692
Case: [2012] NZHC 1692
Decision Date: 13 July 2012

CaseChat Overview and Summary

The case of R v Clarke was heard in the High Court of New Zealand, Wellington Registry, where Brendan John Clarke was sentenced for possession of cocaine for supply. Clarke had taken possession of a suitcase containing 2.985 kilograms of cocaine with an estimated street value of NZ$1 million. He pleaded guilty to the charge, which carries a maximum penalty of life imprisonment. The District Court had declined jurisdiction, leading to Clarke's sentencing in the High Court.

The court was required to determine the appropriate starting point for Clarke's sentence, considering the nature of his offending, his culpability, and the quantity of cocaine involved. The court also needed to assess any aggravating or mitigating factors and the effect of Clarke's guilty plea. The court found that Clarke's role in the drug operation was that of a courier or custodian, with a starting point of nine years' imprisonment. The court also took into account Clarke's good character, previous convictions, and his guilty plea in determining the final sentence.

The court sentenced Clarke to four years and eight months' imprisonment, with no minimum term of imprisonment imposed. The court considered the purposes and principles of sentencing, including holding Clarke accountable for his offending, denouncing it, and deterring him and others from such offending. The court also considered the adverse consequences for Clarke's family life and career, as well as the potential for rehabilitation. The court concluded that a sentence of four years and eight months was appropriate in this case.

Orders