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: nicoled@mwis.co.nz
J Watson, Whangarei: Fax: 09 438 0512

[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…

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 Clunie

Details

AGLC: R v Clunie [2012] NZHC 1628
Case: [2012] NZHC 1628
Decision Date: 10 July 2012

CaseChat Overview and Summary

The case of R v Clunie involved Alison Elizabeth Clunie, who appeared for sentencing on numerous counts of drug dealing, specifically relating to methamphetamine. The offending was linked to two major Police operations in Northland, Operation Arabia and Operation Beema. Clunie pleaded guilty to various charges, including supplying methamphetamine, possessing methamphetamine for sale or supply, and offering to supply methamphetamine. The total quantity of methamphetamine involved in Clunie's dealing was at least 32 grams, and she was also liable for offering to sell cannabis. The court considered Clunie's offending as part of a continuous stream of offending interrupted by a period in which she was in custody and then on bail.

The legal issues the court had to decide involved establishing an appropriate starting point for sentencing, considering the nature of the offending, and applying guidelines provided by the Court of Appeal. The court also had to consider personal factors, such as Clunie's background, employment history, family situation, and any mitigating or aggravating circumstances. Additionally, the court had to determine the appropriate discount for Clunie's guilty pleas.

The court found that Clunie's methamphetamine dealing placed her in Band 2 of the Court of Appeal's sentencing guidelines, which ranges from three years' to nine years' imprisonment. Considering the total quantity of drugs involved and the penalties imposed on other offenders in the same operations, the court set a starting point of five years and six months' imprisonment. The court also added an uplift of 12 months to account for Clunie's offending while on bail and the cannabis offending, resulting in a starting point of six-and-a-half years' imprisonment. Although Clunie's personal factors, such as her drug and alcohol addiction and her relationship with her husband, provided some hope for rehabilitation, the court determined that they carried little weight in cases of this nature. The court applied a discount of 12 months or approximately 15% for Clunie's guilty pleas, resulting in an effective end sentence of five-and-a-half years' imprisonment.

The final orders of the court were that Clunie was sentenced to five-and-a-half years' imprisonment for the charges of offering to supply methamphetamine, possession of methamphetamine for supply, and supplying methamphetamine, to be served concurrently. Clunie was also sentenced to three-and-a-half years' imprisonment for the charges of conspiring to supply methamphetamine and two years' imprisonment for the charge of offering to sell cannabis, to be served concurrently with each other and all other sentences. An order for the destruction of the drugs and paraphernalia found in Clunie's possession was also made. Clunie was discharged under s 347 of the Crimes Act 1961 on several counts in the indictment to which she did not plead guilty and on which the Crown offered no evidence.

Orders