R v Clifford

[2012] NZHC 3534

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-019-2006 [2012] NZHC 3534

THE QUEEN

v

TIMOTHY ANDREW CLIFFORD

Hearing:         19 December 2012

Counsel:         R G Douch for Crown

D P H Jones QC for Prisoner

Judgment:      19 December 2012

SENTENCING REMARKS OF LANG J

R V TIMOTHY ANDREW CLIFFORD HC HAM CRI-2010-019-2006 [19 December 2012]

[1]      Mr Clifford, you appear for sentence today having pleaded guilty on 27 July

2012  to  ten  charges.    Six  of  those  charges  relate  to  methamphetamine  and/or precursor substances and materials. The remaining four charges relate to firearms.

[2]      You pleaded guilty following a sentence indication hearing that I conducted on 20 July 2012.  The delay in sentencing you has been caused by the fact that your counsel and the Crown endeavoured to work through the procedure by which an instrument forfeiture order could be made in respect of the properties on which the offending occurred.  That has not been possible, and as a consequence the Crown has not elected to proceed with the instrument forfeiture application.

[3]      Sentencing needed to be deferred to allow counsel to work through those issues, because if an instrument forfeiture order had been made, it would have had an impact on the sentence imposed on you today.   I am now required, however, to impose sentence without regard to forfeiture issues.

The facts

[4]      I canvassed the facts giving rise to your offending reasonably fully in my sentence indication remarks.  Those remarks will be annexed as an appendix to these sentencing remarks, and I do not propose to repeat them here.

[5]      In   short,   you   were   involved   in   the   manufacture   and   supply   of methamphetamine between 1999 and 2009.   In the course of your activities, you stockpiled  significant  quantities  of  valuable  precursor  substances  and  materials. When your property was searched, the police also found no fewer than four firearms.

[6]      The sentencing process was complicated in your case by the fact that on 30

May 2003, methamphetamine was reclassified from being a Class B controlled drug to being a Class A controlled drug.  As a consequence, the maximum penalty for the offence went from 14 years imprisonment to life imprisonment.  I was required to assess the extent to which your offending occurred prior to 30 May 2003, and to apply the appropriate sentence in respect of that offending.   I then needed to have

regard to the offending that occurred after 30 May 2003, in order to assess the appropriate penalty for that.

[7]      I applied a starting point of 11 and a half years imprisonment in respect of offending that occurred prior to 30 May 2003.   I then applied an uplift to reflect offending after that date.   I then added an uplift of six months imprisonment in relation  to  the  firearms  charges,  and  a  further  six  month  uplift  to  reflect  your previous firearms and drug-related convictions.

[8]      This led to an end starting point of 16 and a half years imprisonment before taking into account mitigating factors personal to you.  I applied a discount of 25 per cent to reflect your guilty pleas and the effect that that had had in saving the State the cost of a very lengthy trial.  This reduced the starting point by four years two months to an end sentence of 12 years four months imprisonment.

[9]      I could not take into account any further mitigating factors at that point, because I had not received a pre-sentence report or any materials that your counsel wished me to have addressing these issues.

[10]     In any case of serious drug related offending, personal factors can only count for a small amount.  The magnitude of offending such as yours means that it is very difficult, for example, to truly apply factors such as remorse.   The pre-sentence report  records  an  expression  of  remorse,  and  you  have  also  provided  me  with material from a person involved in a rehabilitation programme you attended earlier this year. That material also indicates that you express remorse.

[11]     I do not propose to apply any discrete discount in relation to remorse, simply because I consider that, to a very large extent, your remorse is based on the situation in which you now find yourself.  You had ten years within which to come to grips with what you were doing.  There was no hint of remorse during that period.  Rather, you continued to manufacture and supply methamphetamine.  Such remorse as you now express will not be reflected in a concrete way in the sentence I now impose.

[12]     There is, however, one factor that I propose to take into account and this is the efforts you have made to rehabilitate yourself.   You attended a rehabilitation course well before your counsel asked me to provide a sentence indication.   This demonstrates to me that you finally recognised, at the age of 43 years, that you have a real problem with drugs and that this has led you in large part to offend in the way that you have.

[13]     You completed that programme successfully, and the person who supervised your attendance at the programme has confidence that you will continue with your efforts to remain drug free.  In addition, I take into account the fact that you have been on bail for three years since you were initially arrested.

[14]     As I have said, however, I can only give limited expression to mitigating factors other than guilty pleas.  I propose to reduce your sentence by four months to reflect the factors to which I have referred.

Sentence

[15]     On   the   lead   charge,   which   I   take   to   be   that   of   manufacturing methamphetamine   prior   to   30   May  2003,   you   are   sentenced   to   12   years imprisonment.

[16]     On the charge of manufacturing methamphetamine after 30 May 2003, you are sentenced to four years imprisonment.

[17]     On the charge of supplying methamphetamine prior to 30 May 2003, you are sentenced to eight years imprisonment.

[18]     On the charge of supplying methamphetamine after 30 May 2003 you are sentenced to four years imprisonment.

[19]     On the charge of being in possession of precursor substances, equipment and material, you are sentenced to two years imprisonment on each charge.

[20]     On each of the charges of being in unlawful possession of firearms, you are sentenced to six months imprisonment.

[21]     All of those sentences will be served concurrently, which means that you will serve an effective sentence of 12 years imprisonment.

Minimum term

[22]     In any case where the Court imposes a sentence of more than two years imprisonment, it may order the offender to serve a minimum term of imprisonment if it is satisfied that the usual parole provisions would not be sufficient to reflect factors such as deterrence, denunciation, responsibility and protection of the community.  In large scale drug offending such as this, all of those factors are engaged.  People who appear for sentence at your level, Mr Clifford, generally have a minimum term of imprisonment imposed.   In your case, the Crown has not sought a minimum term and I do not propose to impose one.

[23]     You need to know, however, that you will now be viewed by the courts as a manufacturer and dealer in drugs at a very high level.  If you appear again on any similar charges in the future, you will understand, I am sure, that the Court will have no hesitation in imposing a minimum term of imprisonment.   The protection of society would demand that, as would issues of denunciation and deterrence.

[24]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Hamilton

Counsel:

D P H Jones

IN THE HIGH COURT OF NEW ZEALAND

HAMILTON REGISTRY  CRI-2010-019-002006

THE QUEEN V

TIMOTHY CLIFFORD

Hearing:  20 July 2012

Counsel:  R Douch for Crown

D Jones QC for T Clifford

Date of remarks:         20 July 2012

SENTENCING INDICATION OF LANG J

Solicitors:

Crown Solicitor, Hamilton –
David PH Jones QC, Auckland – [email protected]

[1]      Mr Clifford faces a large number of charges of manufacturing and supplying methamphetamine.   The charges span the period between 1 January 1999 and 12

October 2009.    He is charged with both manufacturing and supplying methamphetamine during that period.  He is also charged with being in possession of precursor substances on 12 October 2009, as well as equipment and material capable of being used in the manufacture of methamphetamine.   Finally, he faces several charges relating to the unlawful possession of firearms the police found in his possession on 12 October 2009.

[2]      Mr Clifford’s trial proper is due to commence in this Court on 20 August

2012.  Prior to that, commencing on 14 August 2012, the Court will need to hear and determine a significant number of pre-trial applications.  The trial itself is scheduled to last approximately six weeks.

[3]      Mr Clifford has sought a sentence indication from this Court.  The Crown has agreed to co-operate in that process.   For the purpose of the sentence indication today, I have an indictment prepared by the Crown containing charges it would be prepared to accept guilty pleas to at this stage.  I also have a summary of facts that, in large part, is agreed by both the Crown and the accused.  I have also received the benefit of full submissions from both counsel prior to the hearing today.  In addition, I have received a copy of the summary of facts relating to cannabis offending that occurred in 1991.  Finally, I have a copy of Mr Clifford’s criminal history.

[4]      I record at the outset that the sentence indication given today does not in any way bind the trial Judge in the event that this proceeding goes to trial.  If Mr Clifford elects to go trial and is found guilty, the sentence that will be imposed on him at that stage will reflect the trial Judges’ view of the facts as disclosed by the evidence. Concessions  the  Crown  makes  for  the  purposes  of  today’s  hearing  will  not necessarily be available at sentencing.

[5]      In addition, I record that I am giving my sentence indication today on the basis of a limited amount of material.  Obviously, there is a vast quantity of material regarding the background to these charges that is simply not available to me. Nevertheless, that is the nature of the sentence indication process.

[6]      Finally, I record that any mention of the fact that Mr Clifford has sought a sentence indication is suppressed from publication as are these remarks.

[7]      In order to understand the submissions that both counsel make it is necessary for me to set out the factual background underlying the charges contained in the proposed amended indictment.   I take these from the summary of facts that the Crown has provided to me for the purposes of this hearing.

Background

[8]      The charges arise out of several  operations the police carried out in the Waikato area.  For present purposes the most relevant of these is an operation known as “Operation Cape”.  When the police terminated this operation in October 2009, they carried out an extensive search of Mr Clifford’s farm property situated near Te Uku.   There, they located evidence suggesting Mr Clifford’s involvement in the manufacture and distribution of methamphetamine.   Equipment and material consistent with a clandestine methamphetamine laboratory were located.  Some of the equipment was wrapped in newspapers bearing dates in February and June 2009.

[9]      The  police  also  found  ContacNT  weighing  1.247  kilograms.    ContacNT contains pseudoephedrine, and is usually sourced from Asia.  The summary of facts records that in 2009 ContacNT had a black market value in New Zealand of $50,000 per kilogram.   The Crown estimates that 1.247 kilograms of pseudoephedrine was capable of being used to produce approximately 380 grams of methamphetamine. The  wholesale  value  of  this  quantity  of  methamphetamine  would  be  between

$164,000 and $218,000.

[10]     In addition, the police found toluene and a large quantity of chemicals used in the manufacturing process.  These included hypophosphorous acid, caustic soda, red phosphorous and hydrochloric acid.  Of particular significance was the fact that the police found 96 litres of hypophosphorous acid in unlabelled containers.  This commodity is rare, and is much sought after by manufacturers of methamphetamine. The summary records that it is worth approximately $2,500 per litre on the black market.   If this is correct, the hypophosphorous acid that the police found on Mr

Clifford’s property had a value of more than $200,000.  The summary records that, if used in conjunction with other necessary ingredients, the hypophosphorous acid could achieve a yield of approximately 88 kilograms of methamphetamine.

[11]     When the police searched Mr Clifford’s dwelling they found four sets of electronic scales, all of which bore traces of methamphetamine.   In addition, they found a cash counting machine.

[12]     The firearms charges arise as a result of the fact that the police found 15 firearms secreted in different locations around Mr Clifford’s property, and on land adjoining his property.   Some of these were secured in waterproof containers, and hidden some distance from his dwelling.   Included in these were three restricted weapons, being a Lithgow fully automatic assault rifle, a Heckler and Koch MP5 fully automatic submachine gun, and a Heckler and Koch HKA51A3 fully automatic assault rifle.  In addition, there was a military style semi automatic firearm and seven pistols.  Finally, there were three rifles and a shotgun.

[13]     Some of the charges that Mr Clifford faces arise as a result of the operation that terminated in 2009.   The police investigation has revealed, however, that Mr Clifford has been in receipt of very substantial quantities of cash going back much further than that.  A financial analysis of Mr Clifford’s financial affairs has revealed that, between 1 June 1999 and 12 October 2009, he had access to income of not less than $4.825 million.  Of that sum, not less than $4.1 million had been utilised by Mr Clifford prior to 30 May 2003.  The relevance of that date is that on 30 May 2003 methamphetamine was reclassified from being a Class B controlled drug to a Class A controlled drug.  As a consequence, the maximum penalty available on a charge of manufacturing or being in  possession of methamphetamine for supply increased from 14 years imprisonment to life imprisonment.

[14]     The financial analysis records that, between 1 June 2003 and 12 October

2009, Mr Clifford utilised the balance remaining of approximately $720,000.   It would appear that between 1999 and 2003, he may have used these funds to acquire the significant landholding that he currently occupies.

[15]     The summary records that Mr Clifford engaged the services of an accountant who was prepared to deposit quantities of cash into various accounts to disguise its origin.  He then reimbursed it as directed by Mr Clifford.  This enabled Mr Clifford to introduce funds of approximately $1.8 million to be used for the purpose of acquiring his landholding.  Substantial amounts were also disbursed by this method in respect of other purchases.

[16]     The police investigation has also included the use of interception devices installed pursuant to interception warrants issued by this Court.   These occurred between 18 March 2002 and 19 March 2002, between 23 September 2004 and 17

December 2004, between 10 August 2006 and 20 December 2006 and between 17

August 2009 and 17 October 2009.

[17]     The  interceptions  during  2006  occurred  during  the  course  of  a  police operation known as “Operation Daisy”.   At the termination of that operation, the police executed a search warrant on an address in Hamilton where Mr Clifford was living at that time.  The search of that property revealed a large quantity of tablets containing 198 grams of pseudoephedrine.   In addition, the police found a note relating to the process of manufacturing methamphetamine.

[18]   If the matter proceeds to trial, the Crown will rely on intercepted communications to assist in establishing that Mr Clifford was involved in the manufacture and supply of methamphetamine throughout the period covered by the indictment.

Starting point

Offending that occurred prior to 30 May 2003

[19]     One of the complicating factors in selecting a starting point for Mr Clifford’s offending arises out of the fact that methamphetamine was re-classified from Class B to Class A status on 30 May 2003.  The Crown acknowledges that the bulk of the income was spent during this period.  As a result, whilst the Crown will be unable to

establish the precise quantity of methamphetamine that Mr Clifford manufactured during that period, it will contend that it must have had a very substantial value.

[20]     During this period, the starting point for offending of this type was governed by the decision of the Court of Appeal in R v Wallace v Christie.1   I interpolate that, because the Court is selecting a starting point for offending that occurred prior to 30

May 2003,  it  is  required  to  endeavour to  establish  and  apply sentencing levels prevalent at the time of the offending.

[21]     Counsel have referred me to a number of authorities relating to large-scale manufacture of methamphetamine during this period.   Of these, the  decision in Wallace v Christie itself is of some significance.  The police found more than three kilograms of methamphetamine in the possession of the offender in that case, and they were able to identify expenditure of more than $1 million.   In circumstances where the offender was the mastermind and the “cook”, the Court adopted a starting point of ten and a half years imprisonment.

[22]   In R v Allison, which also involved the large scale manufacture of methamphetamine albeit over a much smaller period, the sentencing Judge adopted a starting point in excess of eight years imprisonment.

[23]    The Crown submits that the extensive period over which Mr Clifford’s offending occurred, together with the substantial quantities of income generated, mean that a starting point of at least 12 years imprisonment is warranted.  Counsel for Mr Clifford disputes this.  He submits that a starting point of no more than 11 years is justified.

[24]     I consider the present case to be somewhat more serious than that of R v Wallace and Christie simply because of the volume of cash generated.  In my view this indicates, even making allowance for the possibility that not all of the income may   have   been   derived   from   drugs,   that   a   very   significant   quantity   of

methamphetamine must have been manufactured.  It is difficult to establish precisely

1 R v Wallace and Christie (1999) 16 CRNZ 443.

what role Mr Clifford played in the offending.  Nevertheless, the fact that he was the person who derived very considerable income from the enterprise means that he must have been towards the very top of the manufacturing and supply chain.

[25]     I consider that an appropriate starting point in relation to the pre 30 May

2003 offending is one of 11 and a half years imprisonment.

Offending that occurred after 30 May 2003

[26]     It is then necessary to add an appropriate uplift to recognise the offending that occurred after 30 May 2003.   During this period, as I have already said, approximately $720,000 was expended from the unidentified income that passed through Mr Clifford’s hands.

[27]     There is a difficulty here because, as counsel for Mr Clifford points out, some of that income may have been derived from methamphetamine manufactured prior to

30 May 2003.  Having said that, Mr Clifford stands to gain a double benefit, because none of the $720,000 has been factored into the starting point adopted in relation to the earlier period.  As a result, to the extent that I discount the starting point for the latter period to reflect this factor, it will not be taken into account at all in assessing a starting point for Mr Clifford’s offending.

[28]     On any view of the facts, income amounting to even $500,000 from the manufacture of methamphetamine would suggest a very significant quantity of methamphetamine has been manufactured.   Again, the fact that Mr Clifford has received the benefit of this and, in latter stages at least, the manufacturing occurred on his property, mean that he must again be regarded as being either at the top of the tree or very close to it.

[29]     I  also  regard  the  precursor  items  and  chemicals  that  were  found  at  Mr Clifford’s property in October 2009 as being very significant.  The discovery of such large quantities of ContacNT and hypophosphorous acid means that this must be

regarded as an ongoing manufacturing operation in which very considerable expenditure had already been incurred to acquire precursor materials and chemicals. The quantities that could have been manufactured using those chemicals inform the scale of the manufacturing process that may have occurred in the future.

[30]     I consider that the Crown is not far off the mark when it suggests a starting point of six years imprisonment would be warranted in relation to the offending that occurred  post  30  May  2003.    Having  regard  to  totality  principles,  however,  I consider that an appropriate uplift to reflect this factor is one of four years imprisonment.

[31]     This means that I am left with an end starting point on the manufacturing charges of 15 and a half years imprisonment.

Uplift

The firearms charges

[32]     The next issue is whether there should be an uplift to reflect the fact that Mr

Clifford was in unlawful possession of a very large number of firearms.

[33]     Counsel  for  Mr  Clifford  submits  this  aspect  of  his  offending  could  be subsumed within the starting point selected in relation to the methamphetamine charges.  I disagree with that assessment because of the sheer quantity and nature of the firearms involved.  Although the Crown accepts that there appears to be no direct connection between the firearms and the manufacture of methamphetamine, nevertheless the discovery of such a large quantity of firearms of such a diverse nature must warrant some adjustment.

[34]     On their own, these charges would warrant a starting point of at least two to three years imprisonment.   I consider the Crown is being generous in allowing an uplift of just six months to reflect this factor, but I propose to apply that figure as the Crown has suggested it.

Previous convictions

[35]     The next  issue is whether there  should  be a further uplift  to  reflect  Mr

Clifford’s previous convictions.

[36]     The only relevant previous offending for present purposes occurred between November 1988 and July 1990.  On 18 April 1991, Mr Clifford was sentenced in this Court to an effective term of two years imprisonment on charges of cultivating cannabis, selling cannabis and being in possession of cannabis for supply.

[37]     The summary of facts in relation to that offending reveals that it occurred during the course of the deployment of an undercover police officer.  The officer was able to gain an introduction to Mr Clifford and, on two occasions, was able to purchase pounds of cannabis from him for the sum of $3,500.   When the police executed a search warrant on Mr Clifford’s address on 17 July 1990, they found a very large number of cannabis seeds and packaged cannabis plant material weighing a total of four pounds.  They also found the sum of $1,600 in cash hidden under s set of drawers in Mr Clifford’s bedroom.

[38]     The  Crown  suggests  that  an  uplift  should  be  applied  to  reflect  these convictions because they demonstrate that Mr Clifford has not learned from the lesson of the sentence imposed in respect of past drug dealing offences.  Counsel for Mr Clifford submits that the offending can properly be regarded as historic, and should be put to one side for present purposes.

[39]     I agree that the offending is historic in the sense that it occurred some 20 years ago.  Nevertheless, at the time the present offending commenced, Mr Clifford had only been released from prison approximately seven or eight years earlier.  He was therefore prepared to become involved in commercial drug dealing notwithstanding the fact that he knew the Court would take a very dim view of that fact if he was caught.   In other words, he was prepared to take the risk whilst he knew the consequences if he was caught.

[40]     This, in my view, makes the current offending more serious, and an uplift is justified.  Again, an uplift of one to two years would be justified on the facts, but

having regard to totality principles, the Crown accepts an uplift of just six months is required.  I agree with that assessment.

[41]     As  a  result,  I  am  left  with  an  end  sentence  of  16  and  a  half  years imprisonment before considering mitigating factors personal to Mr Clifford.

Mitigating factors

Guilty pleas

[42]     For present purposes I am only prepared to deal with one of these, namely the credit to be given for Mr Clifford’s guilty pleas provided they are entered now or in the near future.

[43]     The Crown accepts that a discount of at least 20 per cent is justified.  Counsel for Mr Clifford submits that the maximum available, namely 25 per cent, should be applied having regard to the overall circumstances of this case.

[44]     Several factors need to be borne in mind in considering this issue.  First, the Supreme Court made it clear in R v Hessell2 that the maximum discount that can be made available for a guilty plea is 25 per cent.  In assessing the level of discount in any given case, the Court is required to have regard to all relevant circumstances. These include the point in the criminal justice process at which the plea is entered, the likelihood of conviction in any event and all other factors that may be relevant.

[45]     In the present case, I regard several as being particularly relevant.   First, although the pleas would not come at the earliest stage in terms of time, nevertheless the Crown acknowledges that significant disclosure has been ongoing since the date that Mr Clifford was arrested.   The most recent substantial tranche of disclosure occurred in June 2012.   The Crown accepts that Mr Clifford would be pleading guilty at the earliest opportunity after his counsel has had the opportunity to consider

the effect of the latest disclosure.  For that reason I do not consider the fact that the

2 R v Hessell [2010] NZSC 135.

pleas would come just four weeks before the trial should operating as a barrier to a full discount being given.

[46]     Secondly, there is no doubt that the entry of guilty pleas will save the State a very considerable amount of institutional expense.   A trial of six weeks duration would be avoided.  That must be a very significant factor in the present case.

[47]     Thirdly, I bear in mind the fact that significant pre-trial challenges remain to be resolved in the event that guilty pleas are not entered at this stage.   This may reduce the strength of the Crown case against Mr Clifford.  By entering guilty pleas now, Mr Clifford would effectively waive his right to challenge various aspects of the police investigation.

[48]     Fourthly, three witnesses have been given immunity from prosecution and would be required to give evidence in the event that Mr Clifford proceeds to trial. They will be spared that ordeal if guilty pleas are entered now.

[49]     When I take those factors into account, I am prepared to apply full discount of 25 per cent.  Rounding that figure to the nearest whole month, this would result in a reduction of four years two months from the end starting point I have identified.

Restrictive bail conditions

[50]     Counsel  for  Mr  Clifford  submits  that  his  client  should  also  receive  an additional discount to reflect the fact that he has been subject to reasonably onerous bail conditions for more than two years.   These have required him to drive some distance from his property to report to the nearest police station on one occasion each week.

[51]     The Court has the ability to apply a further discount to reflect restrictive bail conditions  when  it  considers  that  to  be  appropriate.    Generally,  however,  the discount would only be applied in circumstances where the liberty, or freedom of movement, of the offender has been compromised in some way by restrictive bail conditions.   This would normally only be the case where an offender has been

restricted to his or her premises by virtue of a grant of electronic bail, or where the offender is subject to curfew conditions.

[52]     I  do  not  consider  the  bail  conditions  in  the  present  case  to  have  been particularly onerous.  For that reason I am not prepared to apply a further discount to reflect that factor.

Result

[53]     The end result, therefore, is that using the calculations referred to above, the sentence that would be imposed at this stage would be one of 12 years four months imprisonment.

[54]     I record that the Crown does not seek a minimum of imprisonment.  That no doubt reflects the fact that it is only possible to impose a minimum term of imprisonment in respect of offending that occurred after 2002.   The bulk of Mr Clifford’s offending occurred prior to that date.

Next event

[55]     The proceeding is to be listed for mention on Friday 27 July 2012 at 9.30 am. If Mr Clifford elects to take advantage of the sentence indication, he can enter guilty pleas at that point.  Alternatively, Gilbert J who will be presiding on that day, can make timetable orders designed to ensure that pre-trial issues are ready for hearing commencing on 14 July 2012.

[56]     I record, also, that counsel for Mr Clifford has advised me that, in the event that guilty pleas are entered, an issue is likely to arise in relation to forfeiture of Mr Clifford’s property.   That issue would need to be determined prior to sentencing, because any orders that are made as a result of that process must also be taken into account in the sentencing process.  For that reason counsel has intimated that he is likely to seek bail on Mr Clifford’s behalf in the event that guilty pleas are entered next Friday.   He says that would be necessary to enable Mr Clifford to make the

necessary enquiries to place material relevant to the forfeiture application before the

Court.

[57]     I express no view on that issue.  It will be a matter for Gilbert J, who will be presiding next Friday, to determine whether or not bail should be granted in the event that guilty pleas are entered.