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 At [13].

5      Police v Clark [2024] NZDC 215.

[1]        Jamie Clark appears for sentence having entered guilty pleas after a sentencing indication from her Honour Judge Morris to one charge of strangulation and one charge of family assault. The circumstances of the offending are set out in detail in her Honour’s sentencing indication decision dated 24 August 2023 and for the benefit of the Parole Board, I direct that that decision be annexed to this sentencing decision because I will not repeat those here. Suffice to say that the strangulation by Mr Clark of the named victim was so severe that it caused her to lose consciousness and to lose control of her bodily functions. Even after she regained consciousness, Mr Clark continued to assault her.

[2]        Her Honour reached a modified starting point of three years five months’ imprisonment and after allowing for the full Hessell discount of 25 per cent, and a slight rounding down in favour of Mr Clark, the end sentence will be two years five months’ imprisonment. That means that in due course, Mr Clark will appear before the Parole Board at his one-third parole eligibility date who will consider whether Mr Clark still represents, as he does now, an undue risk to the safety of the community.

[4]Mr Clark appeals his sentence.

Submissions

[5]                 Mr de Groot, for Mr Clark, submits the Judge erred in not making allowance for mitigating factors personal to Mr Clark.  He relies on the factors revealed in the   s 27 report and the Alcohol and Other Drug (AOD) report as creating the essential pre-conditions for Mr Clark’s offending. He accepts that is a matter of overall impression. He passes on what Mr Clark says about the discrepancies between the AOD and s 27 reports. He submits the seriousness of the offending should not curb the discount for these factors too much. He submits all those mitigating factors, including remorse, justify a discount of 20 per cent to the sentence, which would result in a sentence of 22 and a half months’ imprisonment. Mr Clark does not seek leave to apply for home detention.

[6]                 Mr Fitzgerald, for the Police, accepts the Judge erred by not addressing the material provided regarding personal mitigation. Mr Fitzgerald also accepts some measure of discount is appropriate to reflect the connection between Mr Clark’s background and the offending. But having regard to the lack of a strong causative contribution, inconsistencies in the information, and the evidence of lack of remorse or causative addiction, a discount of no more than five to 10 per cent is warranted. He submits Mr Clark has demonstrated the ability to lead a productive life over an

extended period so there must be some moderation of any discount for personal circumstances. He has not necessarily been overborne by his circumstances. Mr Fitzgerald also acknowledges this will be a matter of impression.

Was there an error in the sentence and should a different sentence be imposed?

[7]                 Under s 250(2) of the Criminal Procedure Act 2011, I must allow the appeal if I am satisfied that there has been an error in the sentence imposed and a different sentence should be imposed. Otherwise, I must dismiss the appeal. I must be satisfied that the sentence is manifestly excessive.6 The focus is on whether the end sentence was within the range available.7

[8]                 There is no issue taken with the starting point or uplift which followed the sentencing indication. The offending is similar to that in the Court of Appeal guideline judgment of Shramka v R, which set a starting point of three years’ imprisonment.8 There was no home invasion or breach of protection order here, as there was there, but the violence and effects on the victim here were more serious. The uplift was also justified.

[9]                 But I accept the sentencing Judge erred in not addressing the material provided to him regarding personal mitigating factors which had not been available before the sentencing indication. That is an established element of sentencing which the Court must address, as set out by the Supreme Court in R v Berkland.9 There is nothing to indicate it was addressed here. I also accept the Police’s submissions that only a relatively modest discount is warranted for Mr Clark’s personal background. It clearly involved abuse, drugs, and alcohol. Mr Fitzgerald notes a number of discrepancies between the s 27 report and the AOD report, both of which relied on what Mr Clark reported. But I do not consider much turns on those differences.

[10]              I note that Mr Clark has an extensive criminal history, including for violent offending and family violence. In 2020 he was sentenced to five months’

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33], and [35].

7      Ripia v R [2011] NZCA 101 at [15].

8      Shramka v R [2022] NZCA 299. And see T v Police [2019] NZHC 3375.

9      Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [89].

imprisonment for assault on a person in a family relationship, assaulting a child, and breach of a protection order. In that sentencing decision, Mr Clark received a material discount for his deprivation and addiction as outlined in a psychological report and an AOD report.10 In 2020 he was convicted and discharged for male assaults female. All that offending also presumably reflected his reduced agency – his lessened ability to rationally choose optimal and pro-social behaviour.11 But there are also clear signs in the reports on his personal background that Mr Clark had taken advantage of opportunities to lead a productive working life and abstain from consumption of drugs and alcohol. For example, he did not offend between 2012 and 2019.

[11]              And this offending was not all purely instinctive. After choking her to the point that the victim lost consciousness and control of her bodily functions, Mr Clark grabbed her again when she tried to leave, and held her down for about 40 seconds. All this raises a question about whether Mr Clark’s agency continues to be reduced by his background. It also suggests the sentencing purposes of denunciation, community protection, and protection of the victim should be relatively heightened now.

[12]              The above considerations suggest to me that any discount should be towards the lower end of the range available — I consider five per cent is warranted, but no more. That would amount to two months. The Judge agreed a discount of 25 per cent was justified for the guilty plea. That should have been around 10 months, but a discount of 12 months was given, which he described as “a slight rounding down in favour of Mr Clark”. Accordingly, while the Judge erred in not considering the personal circumstances, I do not consider another sentence should be imposed. The end sentence is within the range available and is not manifestly excessive. I dismiss the appeal.

Palmer J

10     Police v Clark [2020] NZDC 22616 at [11].

11     Carroll v New Zealand Police [2023] NZHC 3293 at [26]; and see Fletcher v R [2023] NZCA 392.