Clunie v R [2013] NZCA 110 (18 April 2013)

Last Updated: 24 April 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA484/2012 [2013] NZCA 110

BETWEEN ALISON ELIZABETH CLUNIE Appellant

AND THE QUEEN Respondent

Hearing: 10 April 2013

Court: Stevens, Allan and Clifford JJ

Counsel: M N Pecotic for Appellant M R Davie for Respondent

Judgment: 18 April 2013 at 11.15 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1] Alison Clunie pleaded guilty to 48 charges relating to methamphetamine dealing and one charge of offering to supply cannabis. On 10 July 2012 she was sentenced by Toogood J to five years, six months’ imprisonment.[1]
[2] This is an appeal against sentence. The appeal is advanced on the ground that the sentence imposed was manifestly excessive because the starting point was too high, the uplift for offending while on bail and the cannabis charge was excessive, and no credit was permitted for personal mitigating factors.

Background

[3] In February 2010 the Northland police carried out “Operation Penny”, an investigation targeted at suspected dealers, manufacturers and cultivators of illicit drugs. Among the evidence collected in the course of that investigation was data taken from the cellphones of identified offenders. Analysis of that data, and data obtained as a result of subsequent search warrants on telecommunication providers, revealed the existence of a large organised group in the Whangarei area involved in the distribution of methamphetamine. A number of those suspected of involvement in this group had links to the Head Hunters Outlaw Motorcycle Gang.
[4] This information gave rise to a further investigation, known as “Operation Arabia”. The focus of that investigation was the identification of drug dealing transactions conducted by text message communication in the Whangarei area. As part of the investigation, search warrants were executed in respect of two cellphone numbers later found to belong to the appellant. The historical data from those phones included a number of text messages relating to the sale and supply of methamphetamine. Consequently, the appellant was arrested on 17 June 2010.
[5] At the time of her arrest the appellant was carrying a small plastic container. Inside the container was a total of 0.428 grams of methamphetamine, six snap-lock bags containing methamphetamine residue, and 53 empty snap-lock bags.
[6] The appellant was released from prison on bail on 9 March 2011. Between June 2011 and September 2011 she was the subject of a further police operation named “Operation Beema”. The execution of another search warrant in respect of her cellphone uncovered further incriminating text messages.
[7] The charges to which the appellant pleaded guilty covering the periods of both operations were: offer to supply methamphetamine (x 35); supply of methamphetamine (x 5); conspiracy to supply methamphetamine (x 7); possession of methamphetamine for supply (x 1); and offer to supply cannabis (x 1). She pleaded guilty after committal for trial in the District Court and on the second day of trial in the High Court.
[8] The appellant was sentenced on the basis that the total quantity of methamphetamine involved in her dealing was approximately 36 grams.[2] The quantity of cannabis she offered to supply was 28 grams. In total, the evidence acquired by the police disclosed some 47 methamphetamine dealing events. While the quantity of methamphetamine involved in each transaction was usually one gram or less, on occasions larger quantities were involved with the largest amount being seven grams.
[9] Measured by the number of charges and the amounts of drugs involved, the appellant’s offending was more serious than that of other offenders identified by Operation Arabia. Mr Clunie, the appellant’s husband, was convicted of seven counts of offering to supply methamphetamine and three counts of supplying methamphetamine. The total quantity of methamphetamine involved was 17.75 grams and the Judge used a starting point of four years’ imprisonment.[3] Mr Fenton was convicted of 33 counts of offering to supply methamphetamine, 11 counts of conspiring to supply methamphetamine, and three counts of offering to supply cannabis. The total quantity of methamphetamine involved was 13.4 grams and the Judge also adopted a starting point of four years’ imprisonment.[4] Mr Kingi pleaded guilty to 17 counts of offering to supply methamphetamine and 8 counts of supplying methamphetamine. The offending involved 8.6 grams of methamphetamine and a starting point of three years, nine months’ imprisonment was adopted.[5] The other offenders – Ms Matthews,[6] Mr Tohu,[7] and Ms McGee[8] – were all convicted of offences involving less than five grams of methamphetamine.

Sentencing notes

[10] Toogood J considered the appropriate starting point by reference to R v Fatu.[9] He found that the appellant’s offending fell within band two of the guidelines for offences involving the sale or supply of methamphetamine (three to nine years’ imprisonment), which applies where the quantity of methamphetamine at issue is between five and 250 grams.[10] The Judge held:

[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.

A starting point of five years, six months’ imprisonment was adopted.

[11] Next, Toogood J fixed an uplift of 12 months’ imprisonment to recognise the cannabis offending and the fact that part of the offending occurred while the appellant was on bail.
[12] Toogood J allowed no discount for personal factors. The Judge noted that, while the appellant had previously been a successful small business owner, her life “nosedived” when she met her current husband. He recorded that there was “some hope” for her rehabilitation, given her decisions to sever ties with her husband and to take steps in prison to address her drug and alcohol addictions. However, he observed such personal factors carried little weight in cases of this sort.[11]
[13] A discount of 12 months, or approximately 15 per cent, was allowed for the guilty pleas, leaving an end sentence of five years, six months’ imprisonment. The discount for the guilty pleas was not challenged on appeal.

Submissions

Starting point

[14] Ms Pecotic for the appellant submits that the starting point of five years, six months’ imprisonment was manifestly excessive. Ms Pecotic accepts that the offending fell within band two of Fatu. However, she argues that a starting point of approximately four years’ imprisonment would be more in line with comparable cases.[12]
[15] For the Crown, Mr Davie submits that a starting point of five years, six months’ imprisonment was available.[13] The quantities of methamphetamine involved were significant and the appellant was a prolific dealer. The number of charges point to the appellant having been a key player in the methamphetamine ring.

Uplift

[16] Ms Pecotic also challenges the uplift imposed for the appellant’s offending while on bail and the cannabis charge. She submits that the decision to uplift for the offending while on bail amounts to double counting because the initial starting point took into account the cumulative total of methamphetamine the appellant dealt in over the entire period. Further, it is submitted that it was not appropriate to uplift for the cannabis charge because such offending would not normally attract a sentence of imprisonment.
[17] Mr Davie submits that the Judge’s decision to recognise the appellant’s cannabis offending and her offending while on bail was unexceptional. He argued that this Court has previously treated drug offending involving multiple classes of drugs as an aggravating feature. This is due to the potential for customers to “graduate” to more serious drugs.

Credit for mitigating factors

[18] Ms Pecotic submits that the appellant was entitled to credit for steps she had taken towards her rehabilitation. This included the completion of an alcohol and drug programme and her decision to end her relationship with her husband. Ms Pecotic further submits that the Court should have regard to the fact that the appellant was introduced to drugs through her husband and developed an addiction to methamphetamine. For that reason a discount on compassionate grounds was appropriate.[14]
[19] Mr Davie submits that the Judge acted within his discretion in declining to give the appellant a reduction in sentence for this factor. In this case the offending was very serious and the efforts made by the appellant towards rehabilitation are not exceptional. The Judge was properly able to come to the conclusion that the achievement of the sentencing purposes of denunciation and deterrence could have been unduly hindered by allowing an additional discount. Mr Davie further submits that it is not difficult for a person in the appellant’s position to claim to have severed ties with pro-offending associates and to have engaged with treatment programs. There is nothing to indicate that the appellant has gained real insight into her offending.

Our evaluation

[20] We consider that the starting point of five years, six months’ imprisonment, while towards the upper end of the available range, was not manifestly excessive. Ms Pecotic accepted that this was a commercial enterprise. The intensity of the appellant’s involvement is indicated by the number and nature of the charges and the amounts of methamphetamine involved. By way of comparison, in the recent decision of this Court in Ropiha v R a starting point of six years was upheld where Mr Ropiha pleaded guilty to one count of conspiracy to supply methamphetamine and one count of possessing for supply the 64.1 grams of methamphetamine located in his house at the time of the arrest.[15] This example of course involved considerably fewer charges but a greater amount of methamphetamine. All aspects relevant to culpability must be considered.
[21] Toogood J properly had regard to the sentences imposed on other members of this commercial enterprise and the roles that they played.[16] We are satisfied that the Judge in fixing the starting point had proper regard to the appellant’s role and culpability for the methamphetamine offending.
[22] We are satisfied that there is no basis on which to challenge the uplift for the cannabis offending and the offending while on bail imposed by Toogood J.[17] Section 9(1)(c) of the Sentencing Act 2002 specifically recognises that the fact that the offending was committed while on bail is an aggravating feature. Contrary to Ms Pecotic’s submission, the uplift for the appellant’s offending while on bail is not a case of double-counting. It is intended to reflect the fact that such offending displays disregard for Court processes. Likewise, the fact that part of the uplift was for the cannabis offending (showing dealing in multiple types of illicit drugs) was unexceptional.
[23] Finally, we do not consider that Toogood J erred in declining to grant a reduction for the appellant’s attempts to rehabilitate. It is pleasing to see that the appellant has a commitment to rehabilitate herself and has taken some tentative steps in this regard. However, beyond the fact of the appellant’s engagement with alcohol treatment whilst in prison, there is nothing of a substantial nature that would warrant a discount for this aspect. In cases of commercial drug dealing, the personal circumstances of an offender must be subordinated to the needs of deterrence.[18] We accept that this does not mean that personal circumstances can never be relevant. However, given the undoubted seriousness of the appellant’s offending, it was open to the Judge to decline to reduce her sentence on this basis.

Result

[24] The appeal must be dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

[1] R v Clunie HC Whangarei CRI-2012-088-2612, 10 July 2012.
[2] At [3].
[3] R v Clunie HC Whangarei CRI-2010-088-2776, 10 June 2011.

[4] R v Fenton DC Whangarei CRI-2010-088-2723, 17 December 2010.
[5] R v Kingi HC Whangarei CRI-2010-088-2612, 27 July 2011.
[6] R v Matthews HC Whangarei CRI-2010-088-2612, 13 April 2011.
[7] R v Tohu HC Whangarei CRI-2010-088-2691, 7 October 2010.
[8] R v McGee HC Whangarei CRI-2010-088-2612, 6 July 2011.

[9] R v Fatu [2006] 2 NZLR 72 (CA).
[10] Ibid at [54].
[11] At [18].
[12] Citing R v Nguyen HC Auckland CRI-2008-092-17198, 24 November 2010.
[13] Relying on R v Byford [2008] NZCA 215.
[14] Citing R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612.
[15] Ropiha v R [2013] NZCA 60.

[16] See above at [8].
[17] The actual extent of the uplift, as opposed to its bases, was not challenged.

[18] R v Jarden, above n 15, at [16].