R v Clunie HC Whangarei CRI-2010-088-2776

[2011] NZHC 546

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2010-088-2776

THE QUEEN

v

REECE JOHN CLUNIE

Counsel:         N J Dore for Crown

A B Fairley for Prisoner

Judgment:      10 June 2011

SENTENCING NOTES OF BREWER J

SOLICITORS

Marsden Woods Inskip & Smith (Whangarei) for Crown

Thomson Wilson Law (Whangarei) for Prisoner

R V CLUNIE HC WHA CRI-2010-088-2776 10 June 2011

[1]      Mr Clunie, you appear for sentence on seven counts of offering to supply the class A drug methamphetamine and three counts of supplying methamphetamine. All of those counts individually carry a maximum penalty of life imprisonment, and that is simply how Parliament regards the severity of dealing in class A controlled drugs.[1]

Facts

[1] Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a).

[2]      Your offending came to light as a result of the Police operation, Operation Arabia.  That related to drug offending by members or associates of the Headhunters gang in Northland.  I accept that you do not regard yourself as being a member of that gang or an associate of it, but the fact is that you aligned your drug dealing interests with theirs.  Your offending was discovered as a result of the execution of search warrants and the analysis of text messages and telephone calls.

[3]      The amount of methamphetamine involved I am going to take as being a total of 17.75 grams.  I record that at the outset your counsel brought to my attention your view that the amount involved was a lesser amount, 11.25 grams.  Initially counsel thought that I might have to decide which was the true figure – 11.25 grams or

17.75 grams – pursuant to a procedure that is available under s 24 of the Sentencing

Act 2002.  However, what has transpired since is that it has been accepted that the

11.25 grams amount comes from your contention that although the offer to supply was at the level contained in the Summary of Facts, the actual supply which resulted from it was the lesser amount.  That means that the offering to supply charges are accurate.   If there was actual supply as a consequence of the offering, that would simply have meant more charges.  In any event, it is neither here nor there so far as I am concerned.   What is important to me is the number of charges, the type of charges, and the overall amount of the drug rather than the precise amount.  It is on

that basis that neither counsel wants a disputed facts hearing on this point.

[4]      Mr Clunie, the law says that I have to approach your sentencing in this way.[2]

The first thing I have to do is look at the offending itself and fix a starting point for the term of imprisonment which is going to follow.  I then have to adjust that starting point up or down by looking at the offending itself, and then I have to look at you personally and decide whether there should be further adjustments to the starting point, either up or down.

[2] Sentencing Act 2002, ss 7 and 8.

[5]      I say at the outset that the law gives me very little leeway in sentencing in this area.  You are following a path well worn by many others who have dealt in methamphetamine and so the levels of sentencing are very well established.

[6]      There is a case called R v Fatu[3]  which the lawyers have been referring to. That says that for relatively small scale but commercial dealing involving quantities of five grams to 250 grams of methamphetamine, the starting point is in the three years to nine years range of imprisonment.[4]   Both the lawyers, and I agree, say that your case falls within that Band 2.

[3] R v Fatu [2006] 2 NZLR 72 (CA).

[4] Ibid, at [34].

[7]      The Crown contends for a starting point of four to five years, and your lawyer says I should be looking at a starting point of three to four years.  I think that both lawyers have got that range about right, and in your case I am going to adopt a starting point of four years’ imprisonment.

[8]      In doing that, I have looked at the sentences that have already been imposed on some of the other people who were caught up in Operation Arabia.[5]

[5] R v Fenton DC Whangarei CRI-2010-088-2723, 17 December 2010, Judge Bouchier; R v Matthews HC Whangarei CRI-2010-088-2612, 13 April 2011, Venning J; R v Tohu HC Whangarei CRI-2010-088-2691, 7 October 2010, Andrews J

[9]      I then have to look at the other aspects of the offending, and the only one that

I am required to have regard to is your previous criminal offending.  You have 13 previous convictions, eight of which are drug-related.  In 2004 you were sentenced

.

to  two  years  six  months’ imprisonment  for possession  of methamphetamine for supply, and I consider that to be the most relevant of the convictions and it is the one upon which I put the most weight.   I do that because it shows that there was no deterrent effect on you of that sentence and that once you were released you simply fell back into the same way of offending.

[10]     I also note that in 2008 you served a one month sentence for drug offending, and then three months later you were sentenced to eight months’ home detention for methamphetamine and cannabis offending, and that is when you went to Odyssey House.  In 2010 you were sentenced again for ecstasy possession.

[11]     Taking that into account, I increase the starting point by six months, to four years and six months’ imprisonment.

Personal circumstances and Mitigation

[12]     It is now that I come to look at you personally.  You are 43 years old.  Your life since 2002 has been a wreck.  Economically you are back to stage one.  Your family life is a complete mess, and the situation that you now find yourself in is not going to help.

[13]     You have made efforts to rehabilitate yourself in the past but they have not worked.  The pre-sentence report says that you are highly motivated to rehabilitate but that you are also at a high risk of re-offending; and that sadly is often the case when it comes to offending which has as its root drug addiction.

[14]     I note that you have the continuing support of your family, and that your father and your brother are in Court today.

[15]     I cannot give your personal circumstances a huge amount of weight.  The law simply does not allow that.  But what I can say to you is that given your age and stage and what I have heard from Mr Fairley and read in your pre-sentence report, I do accept that you are motivated to rehabilitate and I do accept that you have a

degree of remorse, even if it is largely directed to the situation you find yourself in.  I

am going to allow a three months reduction in the sentence for that.

[16]     You are also entitled to a reduction for your pleas of guilty.  The maximum that is allowed for that is 25% of the end sentence.[6]    You are not in that territory because you pleaded guilty on arraignment and you pleaded guilty on arraignment after your lawyer had negotiated a plea bargain with the Crown.  But I am still going to give you a discount of approximately 15%, and I round that off to a final sentence of three years and eight months’ imprisonment, that sentence to be imposed on each

of the charges to which you have pleaded guilty and to be served on a concurrent basis, which means at the same time.  So the final effective sentence is three years and eight months’ imprisonment.  Stand down.

[Prisoner recalled]

[6] Hessell v R [2011] 1 NZLR 607 (SC) at [51].

[17]     Mr Clunie, I am sorry that you have been brought back.  The reason why you have been brought back is that there are still two live counts in the indictment; that is to say, you pleaded guilty to the charges which you have been sentenced on but there are still two charges in the indictment which have not been dealt with.  But that is only because where there has been a plea bargain in relation to charges, the Crown, at least in Whangarei anyway, keeps the other ones live until the sentencing is over.

[18]     The Crown has just advised me that it is not going to offer any evidence on the remaining two counts in the indictment and, therefore, I formally discharge you

on those.

Brewer J