R v Persico - [2016] NZHC 2303

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-085-3701 [2016] NZHC 2303

THE QUEEN

v

CLARKE JOHN PERSICO

Hearing: 27 September 2016

Counsel:

M Wong for Crown
S J Gill for Defendant

Indication:

27 September 2016

SENTENCING NOTES OF CLIFFORD J

[1] Mr Persico, you appear for sentencing having pleaded guilty to:

(a) two representative charges of being in possession of methamphetamine for supply;1

(b) one representative charge of supplying methamphetamine;2

(c) one charge of conspiring to sell BZP;3 and as I understand it

(d)two charges each of possessing, offering to sell and selling methamphetamine.4

1      Misuse of Drugs Act 1975, s 6(1)(c) and (f).
2      Section 6(1)(c).
3      Section 6(2A)(c).
4      Section 6(1)(e) and (f).

R v CLARKE JOHN PERSICO [2016] NZHC 2303 [27 September 2016]

[2] Your offending came to light as a result of the police’s Operation Nebraska, which targeted methamphetamine, BZP and cannabis offending associated with a Mr Clint Helmbright.

[3] You pleaded guilty on the BZP charges you faced on 29 June 2015, at the commencement of the first Operation Nebraska trial. That trial was subsequently aborted. Along with Mr Helmbright and your other co-defendants, you faced a second trial which began on 20 June 2016. During that trial, you sought a sentencing indication on the methamphetamine charges. I provided that indication to you on
22 July 2016.

[4] I indicated a sentence of 12 months’ home detention. That indication was subject to a satisfactory home detention report, and a drug and rehabilitation assessment which confirmed that you had ceased to use unlawful drugs. You accepted that indication, and entered your guilty pleas to those methamphetamine charges.

[5] The sentencing indication I gave is binding on me unless information has become available to me after the indication was given which I am satisfied materially affects the basis on which that indication was given.

[6] I have been provided with a satisfactory home detention annex as regards the property you share with your partner and your child. I have also been provided with a satisfactory drug and rehabilitation assessment. I have not been provided with any other information that was not previously available to me and that would have been material to my sentencing indication. My sentencing indication is therefore binding on me and, as I have said, I will now sentence you in accordance with that indication.

[7] The factual basis upon which you entered your guilty pleas is as follows:

(a) During Operation Nebraska, the police intercepted and covertly observed text and telephone communications, and meetings, between you and Mr Helmbright. During those conversations, the supply of

methamphetamine and BZP was agreed, using code words. On 5 and

7 July 2013 Mr Helmbright supplied you with three and four grams of methamphetamine respectively. That is the methamphetamine that is subject to the charges of possession for supply. Between 24 July 2013 and 14 September 2013 Mr Helmbright supplied you with an unknown quantity of methamphetamine on four further occasions. Between 4 July 2013…

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 Persico

Details

AGLC: R v Persico [2016] NZHC 2303
Case: [2016] NZHC 2303
Decision Date: 27 September 2016

CaseChat Overview and Summary

Clarke John Persico has been sentenced by the High Court of New Zealand following a guilty plea to multiple charges of possession, offering to sell, selling and supplying methamphetamine, as well as conspiring to sell BZP. The offending was uncovered by the police's Operation Nebraska, which targeted methamphetamine, BZP and cannabis offending associated with a Mr Clint Helmbright. Persico pleaded guilty on the BZP charges he faced on 29 June 2015, at the commencement of the first Operation Nebraska trial. He faced a second trial with Helmbright and his other co-defendants which began on 20 June 2016, during which he sought a sentencing indication on the methamphetamine charges. The court provided an indication to Persico on 22 July 2016 of a sentence of 12 months' home detention subject to a satisfactory home detention report, and a drug and rehabilitation assessment confirming that Persico had ceased to use unlawful drugs. Persico accepted the indication and entered his guilty pleas to the methamphetamine charges. The court was required to determine whether any new information had become available to it since the sentencing indication was given which would materially affect the basis on which that indication was given. The court found that no such information had been provided and that the sentencing indication was therefore binding on it. The court proceeded to sentence Persico in accordance with the indication, noting that the factual basis upon which Persico had entered his guilty pleas included the interception and covert observation by police of text and telephone communications, and meetings, between Persico and Helmbright during Operation Nebraska. The court set a starting point for the sentence and had regard to personal mitigating factors and the significance of Persico's guilty pleas before sentencing him to 12 months' home detention subject to the usual conditions and to such further drug and alcohol rehabilitation programmes as his probation officer may consider appropriate.

The court commended Persico and his partner for the efforts they had put into his rehabilitation and congratulated them on the birth of their child. It wished Persico's terminally ill father well and Persico himself well in what the court hoped would now be a drug-free and successful life. Persico was directed to stand down.

Orders