R v Clifton [2017] NZDC 16665 (24 July 2017)

Last Updated: 11 December 2017

IN THE DISTRICT COURT AT WHANGANUI

CRI-2016-083-001154 [2017] NZDC 16665

THE QUEEN

v

_{MELISSA CLIFTON}

Hearing:	24 July 2017
Appearances:	M Jaquiary for the Crown A Brosnahan for the Defendant
Judgment:	24 July 2017

_{NOTES OF JUDGE P P CRAYTON ON SENTENCING}

[1] Ms Clifton faces sentence for a large number of drug dealing offences. The summary of facts identifies the scale of the offending but it is perhaps best to deal with it in very brief order in the following way. That the police obtained a production order for text data relating to the telecommunications of the defendant. That was in early July 2016. Analysis identified that she was heavily engaged in drug dealing. It identified that for a month period, there can be no question that Melissa Clifton was both dealing drugs but doing so on a regular and significant basis and not just limited to a single drug but across a multiple and various class of drug and type of drug. Police executed a search warrant on 8 July and they found 42 grams of cannabis and drug utensils. The same had been present when the first search warrant was executed on 24

June. A small amount of methamphetamine, cannabis and utensils were found on that

_occasion.

R v MELISSA CLIFTON [2017] NZDC 16665 [24 July 2017]

[2] The scale of the offending can summarised as follows, as reflected by the agreed summary of facts and the charging document. The methamphetamine identifies that there were a total of 67 offers during the period. The total of those offers amounted to 12.13 grams. There was additionally supply of a class A drug, LSD, 222 tabs, reflected by 47 offers. A class B drug, Ritalin, 24 caps, 4 offers. There was further sale of class C cannabis, 3.294 kilograms, 102 offers and concerningly, supply to the 13 year old daughter of the defendant on at least seven occasions of cannabis to an amount of at least 13 grams.

[3] The commercial nature of the venture can properly be identified when although it is difficult to quantify, the values of those offers across the whole of those drugs is placed by the Crown in the region of $85,000.

[4] I have Crown submissions which identify that when the police executed a search warrant on the 8 July what they located was a security camera, scales and of course those are indicia of ongoing drug supply.

[5] The Crown identify that for methamphetamine, this falls within band 2 of R v Fatu1, five plus grams of methamphetamine with sentencing in the range of three to nine years’ imprisonment. The Crown submit that is the lead offence and that a sentence of three and a half years starting point would be appropriate.

[6] The Crown submit that the LSD supply on its own would merit a starting point of three and a half years. The Ritalin, a class B drug on its own a starting point of two years. The cannabis because of its scale, although it is a class C, when considering the principal appellate authority would merit a start point of 3 years on its own. The cannabis supply to an under 18, perhaps generously, the Crown observe by itself would be marked by a year.

[7] The Crown submit taking all that into consideration and then putting it against the totality framework, that an uplift of two to two and a half years would appropriate. A starting point of five and a half to six years imprisonment being that necessary to

_{reflect the overall culpability of this defendant. The Crown submit no uplift is}

1 R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72

necessary for Ms Clifton and that the remorse and rehabilitation can be reflected by

20 percent. The end point the Crown submit after credits is in the range of three years, three months to three years, seven and a half months.

[8] On behalf of Ms Clifton, Ms Brosnahan does not take issue with much of the Crown submissions and that is realistic. The nature of the defence submissions are twofold. The first is to question the start point as regards to methamphetamine offending. On behalf of Ms Clifton it is submitted that a sentence of three years starting point would be appropriate for the methamphetamine but the end point should then be influenced significantly by the steps that have been taken. Those can be submitted as follows, that over a period following arrest Ms Clifton was remanded in custody for ten months. That she has in that period addressed significantly her drug addiction and that as a consequence she was granted EM bail and has attended successfully the Bridge Programme. That she is now someone who is not the drug addict she was, that the offending was driven by drug addiction and in the circumstances the maximum credit should be given to her for that.

[9] Ms Clifton I have considered all the submissions that have been made on your behalf and a very positive pre-sentence report. It speaks volumes for you and you are to be commended for the steps you have taken. I think you realise that whatever sentence I have to pass today, it would be substantially longer were it not for your own efforts and you are to be credited for those. Denunciation and deterrence of course is paramount here and I have to be consistent with sentences for other people facing similar offences. What that means is that the approach and the end point cannot specifically and only reflect the efforts you have made. I am assisted by the principle appellate authorities of Fatu, R v Wallace and Christie2 and R v Edwards3 and I accept from the Crown’s submissions that when I look at this I need to firstly identify the lead offence and I do, it is methamphetamine and then look at the uplift as appropriate. On my assessment this falls in band 2 but not at the lowest end and that is because of the large number of offers and the amount that was offered. It is well beyond what is anticipated to be at the bottom end of Fatu. The starting point I identify is three and a

_{half years.}

2 R v Wallace and Christie [1999] NZCA 89; [1999] 3 NZLR 159, (1999) 16 CRNZ 443.

3 R v Edwards [2016] NZDC 9915, [2017] DCR 308

[10] I then look at the other offending and what is clear is if you had come before this Court for cannabis, LSD or indeed for Ritalin on an individual basis on the scale of supply that you engaged in over this month it is quite likely that the starting point for sentence would be in the range of, depending which of those drugs it was, between two and three and a half years’ imprisonment. What is also clear is that you were so utterly involved in drug sale and the drug life because of your own addiction. You did not give a second thought to supplying your own daughter with cannabis, it was just part of the world you lived in. That is one of the sadnesses here, that your whole existence was driven by drugs and dictated by your need for drugs, no doubt. Having said that I am not sentencing for those drugs individually. I have to step back and I have to determine what is the appropriate approach for sentence. I do not have much doubt that if I took a starting point of three and a half years and uplifted it by three years that an appellate Court would not interfere but I stand back and there is a significant amount of latitude for me and I have to look at this as someone engaged in drug supply with an adept ability rather than someone who was long term, utterly set upon multiple supplies of multiple drugs and that allows me to draw back to a slightly lower additional uplift of two years and two months. That is the very least that I can uplift this sentence by to reflect your overall drug offending.

[11] That takes the end starting point to five years eight months but then I look carefully at the efforts you have made once you got yourself clean, once you came to your senses as it were and, I have no doubt, guided by your family who attend today and assisted by them. You have been able to get yourself free from drugs, you have been able to do that in a sustained way which means I hope today I can look upon you as someone who will not return to drug addiction, drug selling and drug offending. In all the circumstances I do think you are someone who merits what I view as exceptional amount of credit for those steps. It is slightly above 23 percent credit. What that means in real terms is that your sentence starting point comes back from five years eight months to four years six months, effectively 14 months credit for your efforts at rehabilitation. I then acknowledge your plea entered as it at the soonest opportunity and you get full credit for that. The end sentence will be a sentence of three years three months. That means of course that it will not be long before you are eligible for parole because I do not intend to impose any minimum period of

imprisonment. I hope that with the good work you have done already that parole will be something which you will earn sooner rather later.

[12] On the two offences of offering to supply methamphetamine, the sentence of the Court will be three years three months’ imprisonment.

[13] On the offering to supply LSD, the sentence will be three years' imprisonment.

[14] On the offering to supply amphetamine Ritalin, it will be two years and six months' imprisonment.

[15] On the offering to sell cannabis it will be two years' imprisonment.

[16] On the offering to supply cannabis to an under-18, it will one years' imprisonment.

[17] Possession of cannabis for sale, 18 months’ imprisonment.

[18] On each of the possession of methamphetamine and cannabis utensils, you will be convicted and discharged.

[19] For the breach of community work, your fifth breach, there will be seven days’

imprisonment.

[20] All of those sentences of imprisonment will be concurrent. There will be an order for destruction of all drugs paraphernalia and telephones. So far as the $350 is concerned that will be ordered to be forfeit.

P P Crayton

District Court Judge