R v Clunie [2013] NZHC 2689 (14 October 2013)

Last Updated: 21 November 2013

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-088-001542 [2013] NZHC 2689

THE QUEEN

v

ALISON ELIZABETH CLUNIE

Hearing: 14 October 2013

Counsel: BM O'Connor for the Crown

JW Watson for the accused

Judgment: 14 October 2013

_{SENTENCING NOTES OF ASHER J}

Solicitors/Counsel:

Crown Solicitor, Whangarei. JW Watson, Whangarei.

R v CLUNIE [2013] NZHC 2689 [14 October 2013]

Introduction

[1] This morning, Alison Elizabeth Clunie pleaded guilty to eight counts of conspiracy to supply methamphetamine, one of offering to supply methamphetamine, and two counts of conspiracy to supply materials. I am sentencing her today, the same day that she entered her pleas. I will now set out the unusual sequence of events that has led to this situation arising.

Background

[2] In 2010, Northland Police conducted a police operation known as Operation Arabia targeting methamphetamine offending by a particular group whom the Police say were members or associates of the Headhunters outlaw motorcycle gang. As a consequence of this investigation, Ms Clunie was arrested and charged with methamphetamine offending. She was granted bail on 9 March 2011. Following her release on bail, her conduct again became the subject of Police scrutiny in a further Police operation known as Operation Beema.

[3] On 10 October 2011, she was arrested on a minor charge, but as a result of text data obtained was charged with 12 further counts of supplying methamphetamine.

[4] Ultimately following a number of developments which do not need to be recounted, she was sentenced in the High Court by Toogood J on 10 July 2012 on the charges arising from both Operation Arabia and Beema.¹

[5] In his decision, Toogood J considered that on both sets of offending the total amount of methamphetamine came to approximately 36 grams, placing her in band two of on the scale set out in R v Fatu.² Toogood J found that her involvement was more than that of a street level dealer, and involved commercial quantities. Ultimately he reached a starting point of five and a half years’ imprisonment. He uplifted that five and a half years by 12 months to take into account the offending while on bail and some additional cannabis offending to reach an end starting point

of six and a half years’ imprisonment. He then allowed a discount of 12 months, being approximately a 15 month discount for a guilty plea. The end sentence therefore was five and half years’ imprisonment with various consistent concurrent sentences on the various counts being imposed.

[6] That sentence was appealed to the Court of Appeal.³ The Court of Appeal dismissed the appeal concluding that although the starting point of five and half years’ imprisonment was towards the upper end of the range it was not manifestly excessive.⁴

[7] In the period following Ms Clunie’s imprisonment, the Crown proceeded to carry out further research into the file. There are trials pending of a number of Ms Clunie’s associates who face charges of considerably greater gravity relating to an extensive methamphetamine manufacturing and distribution concern. These alleged offenders are yet to come to trial, their trial being set down for 24 February

2014.

[8] As a consequence of its further investigation, the Crown formed the view that Ms Clunie was guilty of a number of further offences, committed roughly within the same timeframe as the Operation Arabia and Operation Beema investigations, and arising in particular out of Operation Beema. The eight counts of conspiracy to supply methamphetamine relate to potential supplies of methamphetamine that cover different subject matters, although they are related to the other Operation Beema offending in respect of which she has been charged and sentenced. They also include the one further count of offering to supply methamphetamine and two counts of a different nature where Ms Clunie was part of a conspiracy to supply iodine.

[9] So these new charges were laid, Ms Clunie having already served part of her sentence on the related charges.

[10] It is possible to proceed to sentence her today as she has been in prison since the last pre-sentence report prepared and submitted on 23 May 2012. Mr Watson

who represents Ms Clunie has advised the Court in her presence that she specifically waives any request for a pre-sentence report and advises that she wishes to proceed with the sentencing today.

[11] Today’s hearing was for a pre-trial argument relating to the admissibility of propensity evidence relevant to Ms Clunie’s position. It had also been intimated, although there was some confusion concerning this, that a sentence indication would be sought. What has transpired today is it has become apparent that there is no difference between the Crown and the defence as to the appropriate sentence for these further charges.

[12] The Crown had initially submitted that a further two years’ imprisonment should be added to the starting point so that it increased from Toogood J’s six and a half years to eight and a half years, with one year being deducted for an end sentence of seven and a half years’ imprisonment for all the offending, including the new offending before the Court today. This would have meant an additional sentence of two years’ imprisonment.

[13] Mr Watson argued that the appropriate uplift to reflect this further sentencing was one year imprisonment. He made a number of points and referred to some further material that I will come to shortly. In the light of this Ms O’Connor has sensibly, and in my view correctly, accepted that an uplift of one year is appropriate.

[14] This consensus having become clear the parties then took the view that the actual sentencing process could be dealt with today. This has led to all parties agreeing to Ms Clunie changing her pleas to guilty and she has been re-arraigned and entered new pleas. No further pre-sentence report was required. Ms Clunie’s conduct in prison and her position today has been verified. I have all the information before me that I need to sentence her, and with the agreement of both Crown and Ms Clunie I proceed to do so.

Starting point for the present counts

[15] I have already set out generally the background of Ms Clunie’s involvement

in these further counts. It is agreed that the total weight of methamphetamine

involved in the conspiracy counts is 52.5 grams. The total amount of methamphetamine involved therefore increased from 36 grams as it was before Toogood J, to approximately 90 grams. However, as Mr Watson has pointed out and the Crown now accepts, the counts involved are conspiracy counts and therefore the starting point that would be applied to the supply of that extra amount of grams must be reduced. In at least four of the eight conspiracy to supply methamphetamine counts it seems unlikely that the conspiracy ever got beyond the discussion stage. In relation to the other four, there is no proof that any of the possible supplies took place, although it does appear on their face that they at least went a long way down the track.

[16] In relation to the conspiracy to supply materials counts, the material was iodine, an across the counter chemical, and the amounts were modest. The more serious offenders appear to have got Ms Clunie involved simply as a convenient way to get a modest amount of useful chemicals rather than do so themselves. This happened on two occasions.

[17] The Crown suggests that if the current counts upon which I am sentencing Ms Clunie were considered on their own a starting point of approximately six years could be applied. That is perhaps a little high, but I accept that a considerable sentence certainly approaching that could be warranted.

Totality

[18] However, I now face the unusual position of Ms Clunie having already been sentenced on a sequence of offending of which this is part. I have set out details of that. In essence what I face is a split sentencing hearing.

[19] I am of the view that the fairest way forward in such a situation is to place myself in the position of a Judge sentencing Ms Clunie in relation to all the charges relating to her for Operation Arabia and Operation Beema offending collectively, reach a starting point, and then apply the appropriate discounts. In other words I will approach the matter as if Ms Clunie is being sentenced on all charges at the one time today, including those on which she has already been sentenced.

[20] I will then sentence her on the new counts for an additional term that represents the difference between the existing sentence (five and a half years’ imprisonment which was imposed by Toogood J), and what I have now determined is the appropriate overall sentence taking into account the totality of all offending now before me.⁵

Starting point for all counts

[21] So it is necessary to consider the correct overall starting point on all the offending. Toogood J, without the current counts, fixed a sentence of five and a half years and this has been confirmed by the Court of Appeal although it was stated that it was at the higher end.

[22] Although Ms Clunie is clearly not in the same category of culpability as those primarily responsible for this methamphetamine manufacturing and distributing organisation, her offending as Toogood J observed involved commercial quantities, and she is at a level above that of a street dealer.

[23] Given the 11 new counts, the further amounts of methamphetamine involved and the additional culpability that must attach to the new charges of offending by supplying chemicals for the manufacture of methamphetamine, a starting point two years higher than that of Toogood J, namely seven and a half years’ imprisonment, seems to me to be appropriate. I consider that an uplift of a further one year for the breach of bail and cannabis offending, imposed by Toogood J and upheld by the Court of Appeal, remains appropriate.

[24] That means therefore that the starting point, taking into account the new

offending, is eight and a half years’ imprisonment.

Personal mitigating factors

[25] I accept the approach and reasoning of Toogood J where he took a year off in relation to the counts before him for the plea of guilty, reducing the sentence to seven

⁵ This approach was approved by the Court of Appeal in Ludlow v R [2013] NZCA 196 at

[30]-[31].

and a half years. However, in addition to that there are further mitigating factors that

I propose taking into account.

[26] First, there is the discount for a guilty plea for Ms Clunie, that was already allowed for by Toogood J. A further percentage must be allowed for the discount in relation to this offending. It must, however, be limited by the relatively late entry of the guilty plea, although that is to an extent assuaged by the very late laying of these charges at a time when Ms Clunie could have justly felt she had already been penalised for the offending.

[27] But there are two other factors that I take into account in allowing a further discount. The first is that Ms Clunie has now been in prison for approximately three years. I have certificates showing that she has carried out a Salvation Army Bridge programme, an intermediate drug support programme, and has obtained a certificate of completion for an alcohol and drug programme. I am informed that she has carried out cleaning duties and is polite to staff and compliant in prison. There has been no misconduct and no issues with cell standards or for any other matter. I also have a letter she has sent to the Court and have had the benefit of submissions from Mr Watson.

[28] Although personal circumstances get limited recognition in this area of sentencing, I do take into account her good record over the last three years and what do appear to have been entirely genuine efforts to break with the past and the drugs and relationships that led her into these difficulties. I do note that in terms of her past record, she did not start offending until she was approximately 40 years old. Up until that point she had led a blameless life. She is clearly a woman of ability and character but she allowed herself to go grossly astray. There is reason to believe that she is genuinely remorseful and reason to hope for her future. She has a 12 year old son.

[29] The third matter I cannot ignore is the fact that she was charged and sentenced on the Operation Beema offending and then served a period in prison in relation to it before these further Operation Beema charges were laid. I recognise the shock and distress, and indeed depression, she must have felt at facing a further

round of charges and punishment for offending that she thought was well behind her. It is most unfortunate that effectively there have been two sets of sentencings on this one sequence of offending (although there are reasons for it and I am not critical of the Crown in this regard). The fact is however for sentencing purposes, that she has suffered this undoubted added hardship through no fault of her own, which I do see as a personal mitigating factor.

[30] So taking these three factors into account I consider that a further one year deduction is appropriate which would reduce the end sentence by a further year to six and a half years’ imprisonment. The net effect of this would be that on all the counts she would be sentenced to imprisonment for an extra year to be cumulative on the existing five and half year term of imprisonment, increasing it to six and a half years. I will do this by imposing a one year’s imprisonment cumulative sentence on one count, and then one year ’s imprisonment concurrent on the balance of the other counts.

Result

[31] Stand up please Ms Clunie.

[32] Ms Clunie, on the first of the counts that you face, count 34, I sentence you to one years’ imprisonment, that sentence to be cumulative on the sentences imposed by Toogood J on 10 July 2012. On all the other counts on which you are being sentenced today, you are sentenced to one years’ imprisonment, that sentence being concurrent with the one year sentence I impose on count 34, and the other sentences imposed by Toogood J.

[33] The net effect is you will serve an extra one year’s imprisonment to take into account your culpability on these additional counts.

[34] You may stand down.

...................................

Asher J