R v Clarke [2012] NZHC 1692 (13 July 2012)

Last Updated: 17 July 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2011-085-006032 [2012] NZHC 1692

THE QUEEN

v

BRENDAN JOHN CLARKE

Hearing: 13 July 2012

Counsel: I R Murray for Crown

S Hewson for Prisoner

Sentence: 13 July 2012

_{SENTENCING NOTES OF DOBSON J}

[1] Mr Clarke, you are appearing for sentence today, having pleaded guilty to one charge of possession for supply of the class A drug cocaine.1 This charge carries a maximum penalty of life imprisonment. You are here in the High Court for sentencing because the District Court has declined jurisdiction to sentence you.

Circumstances of offending

[2] The charge against you arises out of Police operations aimed at intercepting cocaine that was imported into New Zealand and sought to be distributed here. The first offender in the distribution chain was a foreign national, who had arrived at

_{Auckland airport carrying 2.985 kilograms of cocaine hidden under the hard plastic}

1 _{Misuse of Drugs Act 1975, s 6(1)(f) and (2).}

R v CLARKE HC WN CRI 2011-085-006032 [13 July 2012]

liner of a suitcase. ESR analysis has found that the cocaine was of 80 per cent purity, and on the Police estimate has a street value of some NZ$1 million.

[3] The Crown case is that the originally intended purchaser cried off, and a business associate of yours approached you to see if you could find buyers for the cocaine. It is suggested in the summary of facts that he did so because of the prospect that you would have appropriate contacts from previous experience as a DJ. So the connection is made with you not because of any prior involvement in drug dealing.

[4] You expressed an interest in participating at that stage. You later changed your mind, and told the associate who had propositioned you that you were no longer interested in dealing the drugs. His response was that as the package was already en route to Wellington, you should take possession of it, and that he would collect it from you the following week. You agreed to receive the package and store it in a lock-up you had in Wellington.

[5] You duly took possession of the suitcase containing the cocaine and you paid the person who delivered it to you $2,000 for doing so. You had opened the suitcase to inspect the cocaine when the Police intervened. You explained that you had initially been the intended recipient of the cocaine and that you were going to sell it, but you later decided that you could not do so and therefore the suitcase was going to be passed on to somebody else. That version of that part of it, as you will have heard, is accepting Mr Hewson’s urgings of a view of your involvement more favourable than the Police would urge on me.

[6] [ ]

[7] So on the basis of those activities, you were charged with possession of cocaine for supply, that charge being laid on 20 December 2011, and you pleaded guilty on 17 May 2012.

[8] The foreign national who brought the drugs into New Zealand has already been sentenced. He was sentenced on the basis of a starting point of 12 years’

imprisonment, discounted to an end sentence of seven years’ imprisonment. Numerous other offenders who were involved with the suitcase containing cocaine at various points after its arrival in New Zealand are still to be dealt with by the courts.

Purposes and principles

[9] In sentencing you, I am required to take into account the purposes and principles of sentencing set out in the Sentencing Act 2002. I consider these to be holding you accountable for your offending, denouncing your offending, and deterring you and others from such offending. Those who become involved in the distribution of any form of class A drug must be aware of the severe consequences of their offending. Parliament has declared life imprisonment as the maximum penalty to signal the seriousness of this kind of offending.

[10] In sentencing you today, I have to first determine the appropriate starting point for your sentence. That is, the sentence that is appropriate having regard to the nature of your offending and that reflects the culpability of your offending viewed overall.2 I then have to consider any aggravating or mitigating factors personal to you that might increase or decrease your sentence from the starting point, and finally I have to take into account your guilty plea.

Starting point

[11] The Court of Appeal has not provided a guideline judgment for sentencing for possession of cocaine for supply. In the leading decision on sentencing levels for the importation of methamphetamine, it was specifically observed by the Court of Appeal that the methamphetamine bands and sentencing levels should not be assumed to apply to the importation of cocaine.3 Therefore, in determining the starting point today, I must look at the starting points adopted in broadly similar cases to yours. I will annex to the notes of this sentencing short summaries of seven cases that I find to be more or less comparable. They involve possession for supply

of quantities of cocaine ranging from 416 grams to three kilograms. That largest

amount was of approximately 80 per cent purity, comparable to the cocaine in your case. The starting points range from a low of seven years to a high, in three of those cases, of 15 years’ imprisonment. I have also added an eighth case, which is a Court of Appeal decision on the possession of heroin for supply that I found helpful in the context that I will mention.

[12] I determine the three factors that will determine culpability are your actual involvement in the drug operation including your knowledge of its overall parameters,4 the quantity of cocaine involved, and the motivation behind offending:

whether you organised it for commercial gain.5

[13] A defendant’s role in the overall operation or drug syndicate can range from being a “mastermind” of a syndicate, perhaps in the role Mr Hewson described as the puppeteer this morning, in this operation, or a key importer, to a wholesaler, distributor, to a courier. In sentencing for heroin importation in

R v Wickremasinghe,6 Chambers J indicated that the starting point for “masterminds”

or prime movers of the drugs would be between 16 and 18 years,7 for couriers and collectors 12 to 13 years,8 and those in between would attract a starting point of 13 to

16 years, whilst recognising the fluidity of those brackets and the fact that some offenders might be on the fringes of those different bands. 9

[14] The Crown case, as you have heard Mr Murray this morning, is that you were a wholesaler, and that you intended to purchase the drugs and supply them to others in the community. On that basis they say that you bridge the two categories identified in Wickremasinghe, and that a starting point of up to 16 years would be appropriate. However, you told your associate that you no longer wanted to be involved in any distribution of the cocaine before you took possession, but reluctantly agreed to store it until your associate arrived from Christchurch. I accept that by the time the cocaine was in your possession, you had no intention to sell or

_{deal the drugs yourself. I therefore characterise your role in this situation as a}

4 _{R v Davis and Collinson CA440/04, 20 October 2005 at [64].}

5 _{R v Seguel CRI 2006-092-010540, 24 August 2006 at [26].}

6 _{R v Wickremasinghe HC Auckland T013408, 28 March 2003.}

7 _{At [21].}

8 _{At [25].}

9 At [25].

courier or custodian of the suitcase containing the cocaine, an intermediary between suppliers. The importance of couriers, however, cannot be overlooked. In R v Lam, the Court made reference to the position of couriers in drug operations being of “prime importance but not as part of the planning nor part of the mastering of the activity, but nonetheless [having] an involvement which was of critical

importance”.10 What that reflects, of course Mr Clarke, is that without those

prepared to handle the suitcase, it does not get to those who consume the drug.

[15] It is important at this stage to distinguish between couriers that are charged with importation of cocaine and couriers charged with possession of it for supply. In R v Fatu (the guideline judgment on methamphetamine), the Court of Appeal drew a distinction between importing as opposed to possession for supply, the former

involving introduction of illegal drugs and therefore a greater deal of culpability.11

The “importation courier” referred to as the second category of importer in Wickremasinghe attracts a starting point of 12 to 13 years, and the Crown suggests that you should be treated the same. However, I am satisfied that you had no role in importing this suitcase, therefore your actions are less culpable than the category of couriers referred to in Wickremasinghe. That is also a point of distinction with the foreign national who has been sentenced for importing this cocaine.

[16] However, the proximity of your possession to importation is still reasonably close, as the package of cocaine had passed through two sets of hands before you took possession. The large amount of cocaine found in your possession also suggests you occupied a relatively high position in the tree of distribution of it. Although the associate who introduced the prospect to you appears to be linked with the importers and the organisational minds behind this operation, there is no evidence to suggest that you organised the distribution. You only became involved two or three days prior to taking possession. You were merely an intermediary, and when you took possession I accept you had no intention to distribute the cocaine but rather intended to store it at your premises until it could be handed over to your associate.

[17] The second factor that goes to your culpability is the amount found in your possession: 2.985 kilos, which is higher than most of the comparable cases I have considered. The quantity of the drug is of prime importance in assessing the culpability of prime organisers or masterminds, but it is not as important for couriers, as they do not necessarily know how much they are transporting and are usually paid

a flat fee regardless of the package’s value.12 In this instance, you did know, at least

approximately, the quantity involved and you point to this as one of the drivers of your decision to offend.

[18] Comparable cases have distinguished between those who offend to make a profit from their activities, and those who perform a service for a fee, the latter being less culpable. The Crown submits that your culpability is greater than the foreign national who imported it, because you were to benefit from the ultimate sale of the drugs. Although the evidence here seems to be that you were not going to be paid any fee, or reap any benefit of the ultimate on-sale of the cocaine, I am satisfied that you were motivated to offend out of curiosity, stress, and the potential to earn some money, as well as helping out an associate. It does seem unlikely that you were intending to make a large profit or partake in a commercial distribution enterprise. But this was serious stuff - nearly three kilos.

[19] Taking all those factors into account, I adopt a starting point in your case of nine years’ imprisonment. A lower starting point than the importer is warranted, because his part in increasing the volume of cocaine potentially available to New Zealand users outweighs any difference between you in the commerciality of your respective involvements.

Aggravating and mitigating factors

[20] I turn now, Mr Clarke, to the factors personal to you.

[21] You have one previous conviction for possession of ecstasy. But that occurred a relatively long time ago and seems to have been relatively minor,

_{attracting only a fine as penalty. You have three other convictions, none of them}

12 R v Wickremasinghe at [22] and [24].

presently relevant. Therefore, I consider that it does not warrant an uplift in your sentence.

Circumstances of the offender

[22] You are 36 years old. You live with your wife of seven years and your nine year old daughter. Your wife continues to support you, as evidenced by her reference in support of you. You are currently self-employed as a director of a construction company, which has been operational since 2009 and currently employs 16 staff according to the pre-sentence report. You are also enrolled with the Open Polytechnic, doing a course on construction management.

[23] In 2010, you went to work in Christchurch for 15 months as an Earthquake Commission contractor. You told the pre-sentence report writer that your main duties included inspecting damaged homes and supervising a team of builders. You also informed the writer that you assisted in the development of software for the Earthquake Commission, which was designed to improve the inspection process. You have apparently been involved in training over 1,000 people in how to use that new software.

[24] Your account of your work in Christchurch is also supported by references from two senior executives who work with the Earthquake Commission, and have worked with you in Christchurch. One of them is a former member of the New Zealand Police for 15 years, including time as a member of the Auckland Drug Squad. Both these references give very positive accounts of your work in Christchurch. According to the former policeman, you often worked more than

60 hours per week in Christchurch, whilst your family resided in Wellington. He says that you were “at the very core of a leadership group that revolutionised the entire triage response adopted by the Earthquake Commission”. In the view of that referee, your devotion to this cause is a true indication of the person you are, rather than any indication from your offending.

[25] According to the other referee from your work in Christchurch, in a high pressure and stressful environment, you dedicated many unpaid hours to assisting

your team to reach deadlines, to making sure certain projects stayed on target and were delivered ahead of schedule. That referee notes that when dealing with homeowners you were “courteous, compassionate and showed true empathy”. He says that you always struck him as someone who learns from his mistakes.

[26] In explaining your offending, you told the report writer that you were in a high pressure and stressful environment at work, and that this was one of the main drivers for your decision to offend. You also said that you were in a “dark place” because you had been told you could not ride your motorbike again. You noted that one of your biggest problems is that you are renowned for finding it hard to say “no”. You told the report writer that you did not think about the legal consequences of your actions and that you “weren’t serious about selling it”. Rather, you were curious about what “three kilos of coke looks like”. You said that you intended to take delivery of the cocaine and return it to your associate the following week, an explanation which has been consistent throughout your interviews. If that is true, and I am sentencing you on the basis that it is, then the offending was the most utterly stupid criminal thing that you could do. It has to be life changing for you and your family. You said that you have learned your lesson the hard way and that you have no intention of offending again. I certainly hope so, and sadly you should by now appreciate the permanent and serious black mark that a conviction for possession of nearly three kilos of cocaine will have on a reputation that in recent years was looking better and better.

[27] I assess that your previous good character does entitle you to a discount.13

There are two reasons for this: recognising that a fall from grace is punishment in itself (in terms of the adverse consequences for your family life and your career); and recognising the greater potential for rehabilitation where community involvement and good character bear witness to a reduced probability of any further offending.14

I have read the references that friends and colleagues have provided to be a testament of your good character, and your crucial role in the Christchurch earthquake recovery efforts. However, your previous convictions mean that your record cannot be

considered to be unblemished, but I consider a 10 per cent discount to be justified for your good character.

[28] [ ] I am satisfied that (other) matters [ ] warrant a discount of an additional 20 per cent, and that includes a range of matters, Mr Clarke, to which I have had regard and they include, for example, credit for the health difficulties that you have had and which may impact on the relative severity for you of a term of imprisonment.

[29] The other mitigating factor is your guilty plea, which you entered at the first reasonable opportunity. You are entitled to the maximum discount of 25 per cent for your guilty plea in accordance with the Supreme Court decision in R v Hessell,15 which is to be deducted after allowance for other aggravating and mitigating factors.

[30] Mr Clarke, sentencing cannot be reduced to a matter of arithmetic, but the application of these factors applies as follows. From a starting point of nine years or

108 months, I deduct 30 per cent for good character and other factors warranting a discount, making a little more than 75 months. From that, I deduct a further

25 per cent for the early guilty plea, arriving at somewhat more than 56 months. That produces an end sentence when rounded down of imprisonment of four years and eight months, and that is the length of prison sentence I intend to impose. Obviously, Mr Clarke that length of term puts any suggestion of home detention out of the question.

[31] Normally when the Court sentences an offender to imprisonment for offending of this type, it will give consideration to imposing a minimum term of imprisonment. This means the minimum term that a prisoner will be required to serve before being eligible to apply for parole. Normally a person is eligible to apply for parole after serving one third of his or her sentence. The Court can increase that to up to two thirds to take account of the need to impose a deterrent

sentence and to reflect factors such as denunciation and accountability.16 The

question the Court has to decide is whether, in this case, serving at least one third of the four years and eight months will be sufficient to meet those purposes

[32] The Crown, in asking for a minimum period of imprisonment of half the end sentence to be imposed, relies on R v Wang, where the Court of Appeal held that large-scale drug offending warranted a minimum period of imprisonment as necessary to hold the offender accountable.17 The Crown acknowledges that a minimum term was not imposed on the importer of this cocaine, but Mr Murray draws the distinction in that at the end of his sentence he will be deported.

[33] I have no doubt that those factors are properly reflected, however, in the sentence that I will impose, and in your case I see no need in your case to impose a minimum term of imprisonment.

Sentence

[34] Mr Clarke, you are sentenced to four years and eight months’ imprisonment.

_{You may stand down.}

Solicitors:

Crown Solicitor, Wellington

Ord Legal, Wellington for Prisoner

Dobson J

17 R v Wang [2009] NZCA 118 at [11].

Annexure

Comparable Sentencings

[1] R v Yee.18 The appellant was charged with possession for supply of

416 grams of cocaine of 80 per cent purity. An associate picked up a package containing the drugs from the importer and the appellant inspected it with him. The Court stated it was unclear what the appellant’s role was in the distribution chain, however the proximity of possession to importation warranted a starting point of eight years imprisonment.19

[2] R v Hayward.20 The defendant was convicted of possession for supply of

510 grams of cocaine with 54 per cent purity. The defendant’s role in the distribution chain was as a wholesaler, purchasing cocaine in significant quantities for onwards distribution to other dealers. The defendant intended to act as an intermediary to introduce buyer to seller, but ended up acquiring the cocaine himself and passing it on to the buyer, making no profit. The Court set a starting point of seven years’ imprisonment on the basis of the defendant’s role as an intermediary rather than a dealer in his own right.

[3] R v Peric.21 The defendant was convicted of importing three kilograms of cocaine at approximately 80 per cent purity. The sentencing judge adopted a starting point of 11 years three months’ imprisonment, accepting that the person involved in that case was strictly a courier and had no organisational role, was paid a modest fee and had previously resisted two previous overtures from the same group.

[4] R v Ali.22 The appellant was convicted of importing cocaine and possession for supply of 2.5 kilograms of cocaine at 80 per cent purity. The appellant arrived in New Zealand and rented post office boxes, and ordered 259 envelopes containing

_{cocaine to be sent from Canada. The Court of Appeal characterised the appellant’s}

18 _{R v Yee CA169/01, 29 November 2001.}

19 _{At [16].}

20 _{R v Hayward CRI-2011-092-4639, 13 September 2011.}

21 _{R v Peric HC Auckland CRI-2006-092-16557, 8 June 2007.}

22 R v Ali CA371/05, 20 June 2006.

role in the operation as more than a courier or collector but less than a mastermind, warranting a starting point of 15 years’ imprisonment.

[5] R v Wickremasinghe.23 The defendant’s role in the operation was to collect heroin brought into New Zealand by two couriers, before delivering it to the drug mastermind. The defendant’s role was classified as between that of mastermind and courier, justifying a starting point of 15 years’ imprisonment.

[6] R v Davis and Collinson.24 The appellants were part of an operation to import 2.871 kilograms of cocaine with a purity of 80 per cent and then export it. Mr Davis was found to be of “crucial importance” to the operation and supervised it in New Zealand, and more than just a courier (starting point of 13-14 years); Mr Collinson a courier with a “pivotal role” (starting point 12 years) and Mr Morgan, although responsible for importing the substance had less of a role in the operation (starting point 12 years).

[7] Ogaz v R.25 The appellant was convicted after trial of the importation and possession for supply of 976 grams of cocaine of 80 per cent purity, that is,

780 grams of pure cocaine. He was found to have had the lead role in importing the drug, in supervising the New Zealand operation and taking instructions from the mastermind in Australia, which justified a starting point of 15 years’ imprisonment.

[8] R v Ayala.26 A starting point of 10 years was adopted for one charge of importing 827 grams of cocaine with 75 per cent purity. The appellant’s role was

_{arranging to collect the consignment of cocaine from a courier at the airport.}

23 _{R v Wickremasinghe HC Auckland T013408, 28 March 2003.}

24 _{R v Davis and Collinson CA440/04, 20 October 2005.}

25 _{Ogaz v R [2007] NZCA 45.}

26 R v Ayala [2012] NZCA 271.