The Queen v Airoe Clarkson
[2002] NZCA 7
•25 February 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 250/01 |
THE QUEEN
V
AIROE CLARKSON
| Hearing: | 18 February 2002 |
| Coram: | Anderson J Williams J Baragwanath J |
| Appearances: | M F Tuilotolava for Appellant N M Crutchley for Crown |
| Judgment: | 25 February 2002 |
| JUDGMENT OF THE COURT DELIVERED BY ANDERSON J |
Nature of the appeal
This is an appeal against sentences imposed in the High Court on 27 July 2001 for offences under the Misuse of Drugs Act 1975, the Arms Act 1983 and the money laundering provisions of the Crimes Act 1961. The appellant had pleaded guilty to two counts of conspiracy to supply and selling Cannabis and had been found guilty by a jury on 16 further counts relating to the conspiracy to supply and supply of the Class A drug Lysergide and the Class B drug Methamphetamine, the manufacture of Methamphetamine, the possession of precursors in the production of Methamphetamine, the possession of materials for the manufacture of Methamphetamine, the possession of Lysergide for supply, the cultivation of Cannabis, the unlawful possession of a pistol and of explosives, and money laundering transactions in respect of a sum of not less than $110,000. Although sentences of imprisonment of varying terms were imposed in respect of each offence, such sentences were to be served concurrently with each other from the time of imposition and concurrently with other sentences then being served. Those extant sentences, amounting to seven years imprisonment, had been imposed in December 2000 for other serious drug offences of which the appellant had been convicted by a jury in an earlier trial. The result, fully intended by the Judge whose sentences are presently under appeal, was that the appellant should effectively receive a sentence of imprisonment of about 12 years 7 months.
The appellant had been extensively involved in drug dealing with a number of people, including one Bryan Gordon Slight who had pleaded guilty to counts in the earlier indictment and had been sentenced to nine and-a-half years imprisonment on 27 October 2000. Slight appealed unsuccessfully to this Court against that sentence, R v Slight (26 February 2001, CA 467/00). This appellant, who had been under surveillance in the same Police operation which led to the apprehension and conviction of Slight had defended the charges against him and been bailed pending trial. A term of his bail was that he should undertake full-time residential drug rehabilitation. He ignored this term and committed further serious drug offences. Electronic diaries seized at the termination of the first Police operation were found to contain, in password encrypted areas, data relating to extensive drug dealing. The counts in the second indictment evolved from that disclosed information and a further surveillance of the appellant during the period of his bail.
The scale of offending encompassed by both of the appellants’ trials was broad and serious. Operations were co-ordinated by the use of a dozen cell phones and six pagers. Leased storage units, of which there were 5, were used to store Methamphetamines, large quantities of drug manufacturing chemicals and cash. Trips of LSD, Methamphetamine and Cannabis, fetching more than $130,000, were sold in a single surveillance period of 40 days in July and August 1999. Cannabis was sold by the pound and LSD in large wholesale lots. More than 1,500 grams of Methamphetamine was manufactured. The diaries contained evidence of considerable capital and expenditure incurred in producing crops of Cannabis which had a potential value of some hundreds of thousands of dollars. This was established, commercial drug dealing with widespread distribution, on a major scale, falling within the highest category identified in R v Wallace and Christie [1999] 3 NZLR 159.
Grounds of appeal
There were four principal grounds of appeal. One relating to a subsequent forfeiture order in respect of laundered money was realistically acknowledged by counsel for the appellant as untenable and not pursued. The three remaining grounds may be summarised as follows:
(1) Unjust disparity in comparison with the 9½ years sentence imposed on Bryan Slight.
(2) Undue emphasis by the Judge on the appellant’s offending whilst on bail.
(3) Manifest excess when compared with sentences imposed in other unrelated but similar cases.
Appellant’s argument
On the issue of disparity with the sentence imposed on Slight, counsel submitted that there was a significant difference in the scale of the operations of Slight compared with this appellant. She said that Slight’s operation covered a greater geographical area, both the North and South Islands, whereas this appellant covered the Auckland metropolitan area only. The scale of Slight’s operations was indicated by the large number of intercepted telephone calls, 970 compared with 150 logged calls relating to this appellant. Taking into account an allowance of 18 months made for his guilty plea the starting point for sentencing in Slight’s case was 10½ years imprisonment, whereas in this case the appellant’s total period of imprisonment was more than 12½ years. Counsel submitted in effect that the offending whilst on bail could not justify the disparity between Slight’s sentence and that imposed on this appellant.
Counsel also submitted that the Judge gave or must have given undue weight to the offending whilst on bail when only four of the eighteen offences must necessarily have occurred during that period. Many other offences were expressed in terms of periods of offending which began before the appellant’s arrest in respect of the first operation and ending with his arrest on the second operation. Counsel submitted that when the appellant was bailed in August 1999 he did not set out to create a new system altogether but rather continued a drug-dealing business which had acquired its own momentum.
The ground of appeal that the sentence was manifestly excessive having regard to sentencing levels in similar but unrelated cases was developed on the basis that the Judge should have considered the appellant to be in the lower to middle class of drug dealers. Counsel referred to R v Urlich [1981] 1 NZLR 310; R v Spence CA 190/85 judgment 10 June 1987; R v Slight (supra); R v La Trobe (1991) 7 CRNZ 554; R v McFarlane [1992] 3 NZLR 424; R v Barker 30 July 2001, CA 57/01; R v McCluskie (1992) 8 CRNZ 369; R v Wallace and Christie [1999] 3 NZLR 159.
Counsel submitted that having regard to the general starting point adopted in those various cases a sentence of 12 years in the present case was manifestly excessive.
Submissions for respondent
Counsel for the respondent submitted that there was no relevant comparison to be made with the sentence imposed on Slight. In the present case there could be no credit for a guilty plea, and the counts were additional to those arising from the first Police surveillance operation. Further, the Judge was entitled to treat the offending whilst on bail as a serious matter, relevant to the length of sentence imposed quite apart from the effect of previous similar offending. The relevance of R v Wallace and Christie lay in its description of categories. The present case fell within the first category indicating a sentencing range of between eight and fourteen years. Additional aggravating factors were the presence of firearms and ammunition and the continued offending of a serious nature whilst on bail.
The Judge’s reasons for sentence
Mindful of the sentencing principle of totality the Judge was of the view that he should try to sense what a Judge would have done if faced with the total offending for which the appellant was sentenced in December, plus the total offending for which he now stood to be sentenced. He was not prepared to accept a submission of mitigating comparability to Slight. The Judge considered the present offending as a serious and substantial matter in itself and that there was a seriously aggravating factor in this appellant’s continuing to offend when he had been bailed on condition that he would get help for his drug addiction. This flouting of the law invoked considerations of deterrence and condemnation.
Reasons for decision
Any comparison between the sentences imposed on Slight and those imposed on this appellant must bring into account all significant, relevant features. Because Slight pleaded guilty and this appellant defended, the comparative terms are 12 years 7 months in this case and 10½ years in Slight’s. The totality of charges on which this appellant was convicted is more numerous than in Slight’s case. The significantly aggravating features of continuing to offend on bail and defying a term of bail in order to facilitate the offending are not present in Slight’s case. We were not persuaded that the Judge gave undue weight to that factor. It did not involve an isolated lapse or two but rather carrying on the drug business as usual. The different sentences exemplify not unjust disparity but appropriate distinction. Such conclusion disposes of the first and second principal grounds of appeal.
Nor can the effective sentence of about 12½ years be regarded as excessive having regard to sentencing approaches to drug dealing involving the Class A and Class B drugs in issue. The authorities cited by counsel for the appellant serve to vindicate rather than challenge the sentences imposed in this case, particularly when one has regard to allowances for guilty pleas. Of most direct relevance are the guidelines indicated in R v Wallace and Christie supra and this Court’s endorsement of the sentence imposed in Slight which involved a 10½ year starting point, a lesser number of offences and the absence of such a particularly aggravating matter as the offending on bail. A difference of about two years between Slight and this appellant cannot appropriately be regarded as excessive or otherwise unjustified.
For these reasons the appeal is dismissed.
Solicitors
Ferguson Tuilotolava, Papatoetoe for Appellant
Crown Law Office Wellington
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