CLARK v R [2020] NZCA 641

CLARK v R [2020] NZCA 641 [11 December 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA269/2020[2020] NZCA 641BETWEEN MICHAEL JOHN BENJAMIN CLARKAppellantAND THE QUEENRespondentHearing: 9 November 2020Court: Brown, Duffy and Nation JJCounsel: E A Hall for AppellantJ A Eng for RespondentJudgment: 11 December 2020 at 10.00 amJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentences of six years and two months' imprisonment imposed on thethree offences of possession of methamphetamine for supply and the offenceof conspiring to supply methamphetamine are set aside.C On each of those offences a concurrent sentence of five years' imprisonmentis imposed.____________________________________________________________________REASONS OF THE COURT(Given by Duffy J)[1] The appellant, Michael Clark, pleaded guilty in the District Court and wasconvicted of three charges of possessing the Class A controlled drugmethamphetamine for supply, one charge of conspiring to supply methamphetamineand one charge of possession of an offensive weapon.1 He received concurrentsentences of six years and two months imprisonment on each of the offences involvingmethamphetamine.2[2] Mr Clark now appeals against those sentences on the basis: the starting pointadopted was too high; insufficient recognition was given to mitigating factors; thesentence lacks parity with others involved in the offending; and the Judge erred byfailing to apply the correct sentencing methodology.The offending[3] Mr Clark was found to be in possession of a total of 583 grams ofmethamphetamine and to have conspired with others to obtain a further 137 grams ofthis drug. The offending covers two separate time frames.[4] On 1 February 2017 Mr Clark was driving with an associate and his partner,Melissa Alberts, near Ashburton when he was stopped by police. Mr Clark producedand surrendered a machete. The police, after noticing a glass pipe in the vehicle,undertook a search which uncovered $6,000 in cash, a toilet bag containing electronicscales, a cell phone, empty zip lock bags, empty pill containers, a small plastic spoonand two zip lock bags containing a total of 14 grams of methamphetamine. A secondbag was found containing a plastic container holding 149 grams of methamphetamine.[5] In December 2017 the police uncovered further offending by Mr Clark, whichcame to light during a covert operation targeting a commercial supply ofmethamphetamine in the Wairarapa area. Intercepted communications from thisoperation indicated that Mr Clark, as well as two other individuals Chanel and WayneNamana, had been receiving methamphetamine from an Auckland based dealerMichael Hanna to then on-sell. On 13 December 2017 Mr Clark arranged to payMr Hanna for 420 grams of methamphetamine that had been previously supplied to1 See R v Clark [2020] NZDC 4554. There was also an additional charge of possession of amethamphetamine pipe which related to earlier offending for which Mr Clark was convicted anddischarged. This forms no part of the appeal.2 Mr Clark also received a concurrent sentence of 12 months' imprisonment for the offence ofpossession of an offensive weapon. There is no appeal against this sentence.him. Mr Clark met with one of Mr Hanna's associates, a Mr Crozier, and handed over$53,000 in cash for that purpose.[6] Also on 13 December 2017, Mr Clark phoned Mr Hanna to discuss furtherpayment of the debt owing and for more methamphetamine to be supplied to him.They arranged for Mr Crozier to deliver more methamphetamine to Mr Clark,however, while doing so Mr Crozier was stopped and searched by police. He wasfound in possession of 137 grams that was intended for supply to Mr Clark. Mr Clarkwas subsequently arrested later the same day. He was found in possession of 19 gramsof methamphetamine and $33,870 in cash.3[7] Following Mr Clark's arrest, the police found text message data on his cellphone that indicated between 9 and 13 December 2017 he was both supplyingmethamphetamine to his own customers and to dealers to on-supply to their customers.The sentencing in the District Court[8] On 11 March 2020 Mr Clark came up for sentence before Judge Hobbs, whohad earlier provided him with a sentencing indication.4 Mr Clark essentiallychallenged the outcome of the sentencing indication, which led to the Judge workingthrough the sentencing process again.[9] In setting the starting point the Judge followed the approach outlined in Zhangv R; he took account of the quantity of methamphetamine involved and the roleMr Clark played in the offending.5[10] The 583 grams of methamphetamine found in Mr Clark's possession coupledwith the further 137 grams that he had arranged to purchase caused the Judge to placeMr Clark in the lower end of band four, which indicates an available starting pointbetween eight and 16 years. The Judge had regard to the descriptors of "leading""significant" and "lesser" which were referred to in R v Zhang as helpful3 Neither this methamphetamine nor the cash appear to form the basis of any of the charges facedby Mr Clark.4 R v Clark, above n 1, at [4]. Mr Clark made it clear he wished to present further information tothe Court in the hope it would reduce the end sentence to less than what had been indicated.5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.categorisations of the roles offenders play in methamphetamine operations.6 TheJudge rejected Mr Clark's contention that he had played a "lesser" role, choosinginstead to categorise it as "significant". This was based on Mr Clark having obtained"multiple ounces" of methamphetamine from a high-level dealer (Mr Hanna) who wasfound in possession of 30 kilograms of methamphetamine on arrest, and text messagedata which indicated Mr Clark was active in on-supplying methamphetamine to hiscustomers and to other dealers for them to supply to their customers.7[11] Accordingly, the Judge concluded that: (a) Mr Clark was engaged incommercial dealing; (b) much of the methamphetamine found in his possession wasnot for personal use; and (c) the submission that Mr Clark had little awareness of thescale of the illicit operation was rejected.8 The Judge adopted a starting point of nineand a half years' imprisonment, which reflected the seriousness of all the offendingincluding the possession of an offensive weapon charge.9 The outcome was the sameas that given in the sentencing indication.[12] The Judge then turned to the second stage of the sentencing process. Therewere no aggravating factors. As to mitigating factors, the Judge accepted Mr Clarkwas addicted to methamphetamine, and that addiction may have been the "catalyst"for the drug-related offending.10 However, the Judge considered the offending went"beyond what was required of an addict to sustain his own addiction", and there wasnothing to suggest that Mr Clark's addiction "was so severe it impaired [his] ability toexercise rational choice about the scale of [his] offending".11 Accordingly, the Judgeconcluded that a 15 per cent deduction was appropriate for this factor.12 He thenawarded a further 10 per cent deduction to reflect Mr Clark's good rehabilitativeprospects and remorse,13 and a final 15 per cent deduction for his guilty pleas.14 Thesedeductions were applied in a staggered fashion, which resulted in concurrent end6 At [126][127]; these descriptors are slight modifications of those found in the Sentencing Council(UK) Drug Offences: Definitive Guideline (2012).7 R v Clark, above n 1, at [19].8 At [20].9 At [23].10 At [24].11 At [24]–[25].12 At [26].13 At [29].14 At [36].sentences of six years and two months' imprisonment on the four charges involvingmethamphetamine.The appealStarting point[13] Ms Hall, on behalf of Mr Clark, submits the Judge overstated the role Mr Clarkplayed in the supply of methamphetamine, which led him to adopt too high a startingpoint. Ms Hall characterises Mr Clark's role in the earlier offending in Ashburton asthat of an expendable courier driver shuttling drugs between dealers. By the time ofthe subsequent offending he was in considerable debt to Mr Hanna and was "wellentrenched in a raging methamphetamine addiction". Also, with the latter offendingMr Clark had no operational function other than to supply methamphetamine downthe chain and did not have authority to direct others. He was motivated by hismethamphetamine addiction and had little to gain from the offending. Seen in thisway, Mr Clark met a number of the indicia recognised by this Court in Zhang v R toreflect a "lesser" role in the supply of methamphetamine, and therefore a lower startingpoint should have been adopted. We reject this submission.[14] We do not accept Ms Hall's characterisation of Mr Clark. We reject thecontention he was simply an expendable courier driver who played no more than a"lesser" role in the offending. On Mr Clark's own reporting he had been dealingmethamphetamine from February 2017.15 The items located in Mr Clark's car whenhe was arrested on 1 February 2017 support the inference his role then was more thanjust a courier.16 By December 2017 Mr Clark had direct communication withMr Hanna, a high-level dealer, and Mr Clark was engaged in supplyingmethamphetamine to his own customers and to other dealers for on-supply. Whilstthere is nothing to suggest that he was directing others in a wider illicit enterprise, theevidence shows that by then he was essentially running his own supply operation.These factors are consistent with him having a "significant" role in the offending.15 Mr Clark informed the drug and alcohol counsellor that he started dealing approximately12 months before he was arrested. Whether Mr Clark was referring to his arrest in December orFebruary 2017, in either circumstance he was involved in dealing prior to the Ashburton offending.16 The presence of methamphetamine, ziplock bags, scales, a spoon and cash all suggest he wasinvolved in dealing methamphetamine.[15] Nor do we consider that his addiction to methamphetamine substantially altershow his role is categorised. Although the evidence of Mr Clark's addiction iscompelling, the scale of his offending went beyond what was necessary to fuel hisaddiction. We accept he does not appear to have lived a life of luxury from his drugdealing, but he did gain financially from it.17[16] Ms Hall referred us to various cases which she submitted would support alower starting point. In this regard Ms Hall submitted that Mr Clark's role wasconsiderably less involved than that of Mr Watene-Toi in Hall v R18 and Mr Parkes inParkes v R,19 where starting points of nine years' imprisonment were adopted in eachcase. However, we do not find these comparator cases helpful as they involveoffending of a substantially different nature to that of Mr Clark's.20 Indeed, ifanything, the starting points adopted in those cases accord with the nine years and sixmonths that was adopted here.[17] Accordingly, we agree with the Judge's categorisation of Mr Clark's role as"significant" and the starting point adopted.17 Mr Clark had a debt to Mr Hanna that he was repaying with the proceeds of his dealing, he wasalso found with a substantial sum of cash on each occasion, and self-reported that he would gamble$1,000 at a time.18 Hall v R [2020] NZCA 183.19 Parkes v R [2020] NZCA 203.20 Mr Watene-Toi was involved in the manufacturing of a little over one kilogram ofmethamphetamine. He not only assisted in bringing the manufacturing material to themanufacturing site, he remained present throughout the manufacturing process and was well awareof what was going on and of the scale of the operation. The quantum involved in Mr Watene-Toi'soffending was greater than that in Mr Clark's, however, Mr Watene-Toi's physical role was ratherlimited. By way of comparison Mr Clark's role was much more active and the fact he wassupplying substantial quanta of methamphetamine to other dealers to then on-sell would also havegiven him insight into the scope of the enterprise he was involved in. Thus, we do not find thiscase a particularly helpful comparator.Mr Parkes was involved in supplying 568.8 grams of methamphetamine to a single customer.Mr Parkes was close to the source of the methamphetamine, appreciated the magnitude of theenterprise and was motivated by significant financial gain; his role was a leading one. Mr Clark'srole falls far short of being a leading one, however, he was much more actively involved in theenterprise than Mr Parkes was and built up his own network of customers whom he supplied. Thenature of the defendant's involvement in each case is wholly different and it is not useful to attemptto draw a comparison with this case either.Mitigating factors[18] Ms Hall submits the Judge should have given a discount of no less than20 per cent for Mr Clark's addiction. She contends the discount the Judge arrived atwas influenced by his error in finding the addiction was not so severe as to impairMr Clark's ability for rational choice. She argues this error arose from the Judge'smisunderstanding that Mr Clark remained employed throughout his offending, whenin fact he had lost his job following his arrest for the first set of offending in February2017. To support this assertion Ms Hall relies on the submissions she made asMr Clark's counsel at sentencing. However, there was no evidence before us tosupport that assertion. Nor was there anything in the pre-sentence report or thepersonal information provided by Mr Clark to support this assertion. Finally, theassertion is at odds with the report of the alcohol and drug assessment counsellorRoger Brooking who interviewed Mr Clark and other persons relevant to hisoffending.[19] Mr Brooking's report states that Mr Clark had been in prison on remand for21 months, which is consistent with Mr Clark being remanded in custody in December2017 following his arrest for the offending in Wellington.21 Mr Brooking also recordsMr Clark's employment as a professional seaman and reports that "Mr Clark continuedgoing to sea up till he was sent to prison" and "a week before he was arrested, he wasoffered a job as skipper of a tugboat at $95,000 a year".22 Taken together thesestatements suggest that until Mr Clark was remanded in custody in December 2017 hewas at liberty for some of the time between the first arrest in February 2017 and thelater arrest in December 2017 and during this period he continued to work at sea,which is contrary to Ms Hall's assertion. Accordingly, we are not prepared to find theJudge erred in his factual assessment of Mr Clark's employment history. Nor do weconsider this issue to be material to the sentencing assessment.[20] Ms Hall also submits that in Zhang v R this Court did not rule out the possibilitythat impaired rational choice because of addiction may coexist with commercial21 Mr Brooking's report is dated September 2019. In his affidavit at paragraph 11 Mr Clark refers togoing into custody after the Ashburton charges and then being released. He does not say how longthe release was for or whether he was working or not during the period of release.22 These statements were noted by the Judge at [25] of the sentencing notes: R v Clark, above n 1.offending. She argues that Mr Clark was dealing in methamphetamine to sustain asevere addiction in the face of significant risk and little hope of financial gain, whichindicates he was suffering from impaired rational choice. We reject this submission.[21] As this Court observed in Zhang v R, addiction may affect sentencing in avariety of ways, including as a mitigating factor.23 Irrespective of any error by theJudge regarding when Mr Clark's legitimate employment ended, it is clear to us theJudge accepted Mr Clark's capacity for rational choice was somewhat impaired by hisaddiction. Impairment on account of addiction will always be a matter of degree.In this case, we agree with the Judge that Mr Clark's capacity for reason was not soimpaired that he lacked capacity to exercise a rational choice about the scale of theoffending he engaged in, which went beyond what was necessary to sustain hisaddiction.[22] Ms Hall contends that Mr Clark's choice to engage in drug dealing despite therisks associated with that conduct is evidence of his impaired reasoning. However,this is a choice made by every individual who engages in drug-dealing. For some thischoice may be overwhelmingly influenced by their addiction, for others addiction willbe a partial influence and for the remainder it may have no role at all in their decision-making. We find that Mr Clark falls into the middle category, he acted partly to feedhis addiction and partly in the hope of financial gain. This particularly seems to be thecase with the later offending in December 2017, which was at a higher level than theearlier offending. Accordingly, we are satisfied there was no error in applying a 15per cent discount here.[23] Ms Hall submits the 15 per cent discount for a guilty plea deduction wasinsufficient. She contends a 20 per cent deduction should have been available toMr Clark. Ms Hall contends that although guilty pleas were not entered at the firstavailable opportunity, sentencing indications were sought soon after disclosure wascompleted.24 The Crown disagrees and debates the time at which Ms Hall says thesentencing indications were sought. In Moheebi v R this Court recently noted that thebackground to the timing of a guilty plea may often be "somewhat involved" and the23 See Zhang v R, above n 5, at [139]–[150].24 Initially two indications were sought for the two separate sets of offending.sentencing judge is best placed to assess the value of the guilty plea.25 Accordingly,his or her assessment should not be interfered with unless it is "whollyunsustainable".26 Here we can find no proper basis to depart from the 15 per centdeduction awarded by Judge Hobbs.[24] Where we find there is a proper basis to interfere with the sentence is in relationto the combined discount of 10 per cent given for remorse and rehabilitation. Ms Hallsubmits this discount is inadequate. She contends that Mr Clark's genuine remorsewarranted a deduction of at least five per cent, and that Mr Clark's rehabilitativeprospects alone justified a 20 per cent deduction. On the other hand, the Crownsubmits there is nothing to suggest the discount given to Mr Clark was outside theJudge's sentencing discretion.[25] In our view this was a case where remorse and rehabilitation required separaterecognition, and it is here the Judge erred. When these factors are viewed separatelythe evidence supports discounts of five per cent for remorse and 12 per cent forrehabilitation. The information available to the Judge at sentencing shows Mr Clarkis genuinely remorseful for the offending and determined to take rehabilitative action.While on remand in custody prior to sentence he engaged in three separate coursesaimed at rehabilitation. The report from Mr Brooking confirms that Mr Clark hastaken significant steps since the remand in custody to come to grips with his drugaddiction and is genuinely motivated to take further steps to do so.[26] The effect of these discounts on the end sentences warrants this Court makinga fresh re-assessment on the basis the end sentences are manifestly excessive. Whencalculated in accordance with the two-stage approach approved in Moses v R, theapproximate outcome is end sentences of five years' imprisonment.27 Accordingly, weare satisfied the appeal against sentence should be allowed.[27] Given the view we have reached we see no reason to consider the otherarguments in support of the appeal. The reduction in sentences that we have reached25 Moheebi v R [2020] NZCA 343.26 At [33]–[34].27 In Moheebi v R at [35] n 34, this Court noted that once errors in sentencing are identified on appeal,substituted sentences are assessed in accordance with Moses v R [2020] NZCA 296.also answers the arguments for a reduction based on disparity with the sentences ofother offenders whom police arrested as part of their investigation. We have followedthe two-stage process approved in Moses v R, which answers Ms Hall's submissionthe Judge followed an incorrect sentencing approach.Result[28] The appeal against sentence is allowed.[29] The sentences of six years and two months' imprisonment imposed on the threeoffences of possession of methamphetamine for supply and the offence of conspiringto supply methamphetamine are set aside.[30] On each of those offences a concurrent sentence of five years' imprisonment isimposed.Solicitors:Crown Law Office, Wellington for Respondent