R v Clunie

[2012] NZHC 1628

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-088-002612 [2012] NZHC 1628

THE QUEEN

v

ALISON ELIZABETH CLUNIE

Prisoner

Hearing:         10 July 2012

Counsel:         NJ Dore and T Nicholls for Crown JW Watson for Accused, Clunie AB Fairley for Accused, Kingi

Judgment:      10 July 2012

SENTENCING NOTES OF TOOGOOD J

Solicitors:

R V CLUNIE HC WHA CRI-2012-088-002612 [10 July 2012]

N Dore, Crown Solicitor, Whangarei:  [email protected]

J Watson, Whangarei: Fax: [phone]

[1]      Alison Elizabeth Clunie, you appear for sentence on numerous counts of drug dealing, principally relating to methamphetamine.   You are one of a number of offenders apprehended as a result of two major Police operations in Northland, Operation Arabia  and  Operation  Beema.    The  evidence  was  obtained  primarily through the interception of private communications by text messages.

[2]      Your  offending  occurred  initially  over  a  five  month  period  from  late December 2009 to April 2010, and then again for a further three months between June  and  August 2011  while  you  were  on  bail  awaiting  trial  for  your  earlier offending.  As I have already indicated to Crown counsel, I propose to regard your offending as being part of a continuous stream of offending interrupted by a period in which you were in custody and then on bail.

[3]      You   pleaded   guilty   in   this   Court   to   three   counts   of   supplying methamphetamine; one count of possessing methamphetamine for sale or supply and

25 counts of offering to supply methamphetamine.  When you were apprehended in June 2010   you   were   found   in   possession   of   just   under   half-a-gram   of methamphetamine and you pleaded guilty also to having those drugs for supply. You pleaded   guilty   in   the   District   Court   to   11 counts   of   offering   to   supply methamphetamine.   In respect of each of those charges you are liable to life imprisonment.1   You are also liable to 14 years’ imprisonment on the seven charges of conspiring to supply methamphetamine, and to a period of eight years’ imprisonment for offering to sell cannabis.  The total quantity of methamphetamine

involved in your dealing was at least 32 grams and probably around 36 grams of methamphetamine. The cannabis you offered to sell was one ounce or 28 grams.

Approach to sentencing

[4]      The process  which  I have followed  in  determining the  sentences  to  be imposed upon you is this.2   First, I have been required to establish a starting point

by referring to the nature of your offending itself; I have looked at guidelines

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

2      R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [60].

provided by the Court of Appeal; I have considered the features of your offending, both aggravating and mitigating, if any, in comparison with the sentences imposed in other broadly similar cases.

[5]      In addition to taking account of the need for consistency with other cases generally, I have endeavoured to assure an appropriate relativity of treatment between other offenders apprehended in these operations and you.3   I have looked at whether I should adjust the starting point to take account of any aggravating or mitigating features which relate to you personally.  I make the point now that what might in other cases be regarded as mitigating personal circumstances usually have much less relevance in sentencing for serious drug-dealing, which this was.4     I include in that observation my view that this is not a case in which any credit can be given for the fact that you have no previous convictions for drug-dealing.

[6]      Finally, I have given credit, by way of a discount, on account of your pleading guilty.   The amount of the discount depends on the circumstances in which the pleas were entered.5

[7]      On the charges of offering or supplying methamphetamine, or possessing it for supply, the Court of Appeal has provided guidelines for sentencing for offences involving the sale or supply of methamphetamine in the following way:6

(a)       Band 1 is what is described as low level offending - that is up to five grams in weight.

(b)Band 2  is  for  the  sale  or  supply  of  commercial  quantities  of methamphetamine - that is between five and 250 grams.

(c)       The third band is for what the Court described as large commercial quantities – namely 250 to 500 grams of methamphetamine.

3      Sentencing Act 2002, s 8(e).

4      Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [12].

5      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

6      R v Fatu [2006] 2 NZLR 72 at [34].

(d)      Band 4  is  for  very  large  commercial  quantities  involving  over

500 grams of methamphetamine.

In each case the Court considers the total quantities involved in the offending overall and does not look just at each transaction.

[8]      The guidelines apply also to conspiracy charges although some reduction in the starting point relative to each band is appropriate in order to reflect the lesser maximum penalty of 14 years’ imprisonment.7    As I understand it, there is no real dispute between you and the Crown as to the quantities involved in this case.  But it is  important  to  assess  not  only  the  quantities  but  the  role  you  played  in  the distribution of a pernicious destructive drug, the abuse of which has been recognised by the courts as the most serious drug problem facing our country.

[9]      In deciding where to fix the starting point for your sentence, I looked, as I have said, at the starting points imposed for the other offenders who have already been sentenced in Operation Arabia:

(a)      Reece Clunie pleaded guilty to seven counts of offering to supply methamphetamine and three counts of supplying methamphetamine. The total amount of methamphetamine was 17.75 grams.  The starting point in his case was four years’ imprisonment.8

(b)Laurence Fenton pleaded guilty to 33 counts of offering to supply methamphetamine, 11 counts of conspiring to supply methamphetamine, and three counts of offering to supply cannabis. The quantity of methamphetamine involved was 13.4 grams.   A starting point of four years was fixed.9

(c)      Tuaru Kingi  pleaded  guilty to  25  counts  of offering to  supply or supplying methamphetamine.  The total quantity of methamphetamine

7      R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627; Jarden v R [2008] NZSC 69, [2008] 3

NZLR 612.

8      R v Clunie HC Whangarei CRI-2010-088-2776, 10 June 2011, Brewer J.

9      R v Fenton DC Whangarei CRI-2010-088-2723, 17 December 2010, Judge Bouchier.

was 8.6 grams.   The Judge identified a starting point of three years

nine months’ imprisonment.10

(d)Channelle  Matthews  pleaded  guilty  to  nine  counts  of  offering  to supply methamphetamine and three counts of conspiring to supply methamphetamine.   The quantity in her case totalled 3.6 grams.   A starting   point   of   two   years   nine   months’   imprisonment   was identified.11

(e)      Frank Rota pleaded guilty to three counts of offering to supply methamphetamine.  The sentencing notes do not reveal the quantity of methamphetamine involved but it was clearly at the lower level of Fatu band 1.  The sentencing Judge took a starting point of two years

nine months’ imprisonment.12

(f)     Shannon Tohu pleaded guilty to four counts of supplying methamphetamine and four counts of offering to supply methamphetamine.  The quantity of methamphetamine involved was less than two grams in total.  A starting point of two years six months was adopted by the sentencing Judge.13

(g)Helena McGee pleaded guilty to 13 counts, 10 of which were offering to supply methamphetamine, two of actually supplying methamphetamine, and one offering to supply cannabis.  The quantity of methamphetamine involved was 4.35 grams.   The quantity of cannabis involved was one ounce.  A starting point of three years and

two months was adopted by the sentencing Judge.14

10     R v Kingi HC Whangarei CRI-2010-088-2612, 27 July 2011, Wylie J.

11     R v Matthews HC Whangarei CRI-2010-088-2612, 13 April 2011, Venning J.

12     Police v Rota DC Whangarei CRI-2010-088-2600, 14 April 2011, Judge TH Everitt.

13     R v Tohu HC Whangarei CRI-2010-088-2691, 7 October 2010, Andrews J.

14     R v McGee HC Whangarei CRI-2010-088-2612, 6 July 2011, Asher J.

(h)Albert Paraha pleaded guilty to two counts of offering to supply two grams of methamphetamine on each occasion.  The sentencing Judge adopted a starting point of three years’ imprisonment.15

[10]     Ms Clunie,  the  extent  of  your  methamphetamine  dealing  and  the  total quantity of drugs involved, being just under 40 grams, places you squarely in Band 2 of the guidelines where the starting point ranges from three years’ to nine years’ imprisonment.

[11]     I do not accept Mr Watson’s characterisation of your involvement as being that of a street level dealer.  You were dealing in commercial quantities as well as small user amounts and your offending involved amounts which could be readily divided into street deal quantities.

[12]     I consider, therefore, that taking into account also the penalties imposed on other offenders apprehended in this operation, a starting point of five years and six months’ imprisonment is appropriate.

[13]     It is necessary to reflect the fact that the offending which took place between June and August 2011 was committed while you were on bail after having been apprehended on the earlier charges.  The cannabis offending should be marked also. An uplift of 12 months’ imprisonment is appropriate to take account of both of those factors, bringing the starting point before personal factors up to six-and-a-half years’ imprisonment.

[14]     Looking at the personal factors, I see from the pre-sentence report that you are a 48 year-old woman whose family background provides no explanation for your decline into this type of serious offending.  Although you left school without any formal qualifications, you did well in small business administration, ending up owning your own business.   But your life nosedived - I think the expression was yours - when you met up with your current husband, Reece Clunie, whom I have mentioned earlier and who, as one of your co-offenders, is currently serving a term

of three years eight months’ imprisonment.  You have been married to Mr Clunie for

15     R v Paraha HC Whangarei CRI-2010-088-2612, 7 September 2011, Brewer J.

nearly 14 years.  You have teenage sons the youngest of whom, I think, is 11.  Both of you have failed your children as parents.  Whether or not it is the case that you were drawn into this offending once you became addicted to methamphetamine as a result of your husband’s involvement with illicit drugs, you were an extremely pro- active dealer, as the number of charges indicates.

[15]     You also failed your daughter, Laura, who, at the age of 26, is now serving a sentence of 21 months’ imprisonment for her part in offending which was brought to an end by the Police operation which also led to your convictions.

[16]     Your previous convictions were no doubt associated with your drug habit, but are not relevant for the purposes of sentencing on these charges and I disregard them.

[17]     There is some hope for your rehabilitation.  You claim to have severed your relationship with your husband.   Given that you have been in prison that seems inevitable but I take it that that means for the future, although you still profess affection for him.  You have, while in custody, taken steps to address your drug and alcohol addiction with some success, so that there are at least encouraging signs and you deserve credit for that.

[18]     But personal factors carry little weight in cases such as this and it is only your guilty pleas which provide any basis to reduce the appropriate sentence from the six- and-a-half years I have mentioned.

[19]     In the District Court you pleaded guilty after committal for trial and in the High Court you pleaded guilty on the second day of the trial before the Crown opened.  In the circumstances, I consider a discount of 12 months or approximately

15 percent to be appropriate, leading to an effective end sentence of five-and-a-half-

years’ imprisonment.

[20]     Will you please stand Ms Clunie.

[21]     On each of the charges of offering to supply methamphetamine, possession of methamphetamine for supply, and supplying methamphetamine, you are sentenced to five-and-a-half-years’ imprisonment, the terms to be concurrent.

[22]     On the charges of conspiring to supply methamphetamine you are sentenced to three-and-a-half-years’ imprisonment also to be served concurrently with each other and all other sentences.

[23]     On the charge of offering to sell cannabis you are sentenced to two years’

imprisonment also concurrently.

[24]     An  order  for  destruction  of  the  drugs  and  paraphernalia  found  in  your possession is also made.

[25]     The total effective sentence for you, therefore Ms Clunie, is five-and-a-half

years’ imprisonment.

[26]     I need to deal with a number of charges in the Indictment to which you did not plead guilty and on which the Crown offers no evidence. This is on the basis that these charges are largely subsumed by the other offending or are charges on which the Crown considers its case was not sufficiently strong to continue with the trial.

[27]     So in respect of the following counts you will be discharged under s 347 of the Crimes Act 1961, which is equivalent to an acquittal.

[28]     The counts involved are counts 1, 2, 6, 7, 12, 15, 16, 17, 22, 24, 25, 26, 29,

30, 31, 33, 34, 35, 37, 38, 41, 46, 47, 48, 49, 51, 52, 54, 56, 57, 58, 60, 64, 65, 66,

67, 69, 74 and 75.  On each of those counts you will be discharged under s 347. [29]           Please stand down.

............................................................

Toogood J