Clark v Police - [2024] NZHC 331

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2024-485-6

[2024] NZHC 331

UNDER Part 6 of the Criminal Procedure Act 2011

IN THE MATTER

of a first appeal against sentence

BETWEEN

JAMIE DALE HENRY CLARK

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 27 February 2024

Counsel:

H G de Groot for the Appellant

G P Fitzgerald for the Respondent

Judgment:

27 February 2024

ORAL JUDGMENT OF PALMER J

Counsel/Solicitors:
H G de Groot, Barrister, Wellington Crown Solicitor, Wellington

CLARK v POLICE [2024] NZHC 331 [27 February 2024]

What happened?

[1] Around 2 am on Sunday 14 May 2023, Mr Jamie Clark, then aged 33, was at home with the complainant after they had been drinking at a bar. They had been in a casual relationship for about three months. When the complainant mentioned a previous incident, he became angry, grabbed her face, threw her onto the bed, climbed on top of her, and forced his elbow into her neck for two to three minutes. He then turned her onto her stomach, lay on her back and placed her in a choke hold until she lost consciousness and control of her bodily functions. When she came to, the defendant had left the bedroom. After 10 to 15 minutes, the complainant found him in the kitchen where he told her he had killed her dog. She went outside to look for the dog. When she re-entered, Mr Clark grabbed her again by the face, pushed her onto the couch and held her there for around 40 seconds. The complainant received injuries to her eyes, bruising to her throat, scratches to her face, a sore neck, and a sore throat. My account of the offending is based on the summary of facts.

[2] Mr Clark was originally charged with four charges. But on 24 August 2023, he received a sentencing indication from Judge B A Morris, in the District Court at Masterton, for one representative charge of strangulation and one representative charge of assault on a person in a family relationship.1 The Judge considered the lead charge of strangulation was aggravated by: occurring in the context of intimate partner violence; there being two separate acts of violence; and the complainant’s loss of consciousness and bodily function.2 She indicated a starting point of three years’ imprisonment for both charges. She uplifted that by five months for Mr Clark’s history of intimate partner violence.3 She indicated a 25 per cent discount for a guilty plea would be appropriate.4 Mr Clark pleaded guilty on that basis.

[3] On 9 May 2024, Judge A I M Tompkins sentenced Mr Clark on the basis of the sentencing indication, stating (in total, apparently):5

1      Police v Clark DC Masterton CRI-2023-035-000396 (Notes of Judge B A Morris on Sentencing Indication) [Sentencing Indication] at [1]; Crimes Act 1961 ss 189A and 194A. Maximum penalties of seven years’ imprisonment and two years’ imprisonment respectively.
2      At [7]—[9].
3      At [11]–[12].
4…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clark v Police

Details

AGLC: Clark v Police [2024] NZHC 331
Case: [2024] NZHC 331
Decision Date: 27 February 2024

CaseChat Overview and Summary

In the case of Clark v Police, the appellant, Jamie Dale Henry Clark, challenges his sentence on appeal. Clark was originally charged with multiple offences but pleaded guilty to one charge of strangulation and one charge of assault on a person in a family relationship. The District Court Judge indicated a starting point of three years’ imprisonment for both charges, uplifted by five months for Clark’s history of intimate partner violence. A 25 per cent discount for a guilty plea was also considered appropriate. After sentencing, Clark appealed the sentence, arguing that the sentencing Judge erred by not sufficiently addressing personal mitigating factors, which led to an insufficient discount. The Police, on the other hand, accepted that some discount was warranted but argued that it should be no more than five to ten per cent.

The legal issues before the court were whether the sentencing Judge erred by not adequately considering the mitigating factors and whether a different sentence should be imposed. The court examined whether the sentence imposed was within the available range and whether it was manifestly excessive. The court noted that the starting point and uplift were correctly applied, but the sentencing Judge did not address the mitigating factors as required. The court found that while a discount was warranted, it should be modest due to Clark’s extensive criminal history and the severity of the offending. The court decided that a five per cent discount was appropriate, resulting in a final sentence of two years and five months’ imprisonment. The appeal was dismissed as the sentence was within the available range and not manifestly excessive.

The final orders of the court dismissed the appeal and confirmed the sentence of two years and five months’ imprisonment for Clark. The court held that while the sentencing Judge erred in not considering the mitigating factors, the overall sentence was appropriate given the circumstances and did not warrant a different sentence.

Orders