Clark v R
[2013] NZCA 63
•18 March 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA347/2012 [2013] NZCA 63 |
| BETWEEN JOHN MANULE CLARK |
| AND THE QUEEN |
| Hearing: 13 February 2013 |
| Court: White, Simon France and Asher JJ |
| Counsel: C Muston for Appellant |
| Judgment: 18 March 2013 at 10.00am |
JUDGMENT OF THE COURT
AThe appeal against sentence is allowed.
BThe sentence of four years seven months’ imprisonment imposed on the representative charge of threatening to kill is quashed. In its place we substitute a sentence of three years six months’ imprisonment.
CThe end result is a final overall sentence of four years five months’ imprisonment.
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REASONS OF THE COURT
(Given by Simon France J)
Introduction
Mr Clark appeals an overall sentence of five and a half years’ imprisonment imposed for a sustained course of violence against his partner, and their children.[1]
[1] R v Clark DC Whangarei CRI 2011‑088‑003539, 29 May 2012, Judge Harvey.
The offending to which Mr Clark pleaded, and the sentences, are as follows:
| Offence | Maximum penalty available | Date of offending | Sentence imposed |
| Offending upon the appellant’s partner | |||
| Injuring with intent | 5 years imprisonment | December 2010 | 2½ years imprisonment (concurrent) |
| Injuring with intent | 5 years imprisonment | January 2011 | 2½ years imprisonment (concurrent) |
| Injuring with intent | 5 years imprisonment | April 2011 | 2½ years imprisonment (concurrent) |
| Male assaults female | 2 years imprisonment | Representative offence December 2005 to April 2011 | 1 year imprisonment (concurrent) |
| Threatened to do grievous bodily harm | 7 years imprisonment | Representative offence December 2005 to April 2011 | 4 years 7 months imprisonment |
| Offending upon the appellant’s children | |||
| Male assaults female (a girl aged 12–15 years) | 2 years imprisonment | Representative offence May 2008 to May 2011 | 4 months (cumulative) |
| Assaulting a child (a girl aged 10–13 years) | 2 years imprisonment | Representative offence May 2008 to May 2011 | 4 months (cumulative) |
| Assaulting a child (a boy aged 8–11 years) | 2 years imprisonment | Representative offence May 2008 to May 2011 | 3 months (cumulative) |
Facts
Concerning his partner, there were three specific incidents, each charged as inuring with intent to injure. The first occasion involved a backhand hit to the complainant’s face. Mr Clark was drunk, and had required his partner to drive him to the liquor store. On the way he spilt some wine, and reacted by hitting her. The blow was to her left eye which was bruised and bloodshot for some weeks as a result. The complainant had to take days off work.
The second specific incident was an event at home where Mr Clark grabbed the complainant by the throat and choked her for a short period.
The third incident occurred when Mr Clark believed the complainant had lied to him. He initially slapped her face, but followed this with a punch to the stomach and kicking to thigh and hip. This required a visit to the doctor and time off work.
There were then two further representative charges covering a six year period. The first, male assaults female, reflects a regular pattern of violence, consisting of hitting or punching. The outcome would often be a black eye or split lips. Bruises were common. The second representative charge reflects a regular practice of threatening to kill the complainant and to then put her where she would not be found. This charge captures a deliberately created environment of fear, reinforced by the violence reflected in the charges.
The couple had three children. Concerning each there is a representative charge of violence. Generally the conduct was the same, involving punching or slapping. The charges also cover assaults with a belt.
Difficulty with sentencing exercise
Mr Clark pleaded guilty following some adjustment to charges, and the withdrawal of others. By agreement, amendments were made to the time periods covered by the representative charges, and to the summary of facts. However, the sentencing remarks do not reflect these changes. The main error relates to the time span covered by the representative charges. As pleaded to, those relating to his partner cover six years, and to the children three years. The Judge, however, several times refers to the offending against the children covering either 11 or 14 years; a similar mistake is made as regards his partner. The Judge also refers to offending with a belt against one of the children in 2005. There is no specific offence covering this, and it otherwise falls outside the timeframe of the charges.
It is always difficult to assess what difference this wrong information made to the sentence imposed but in the circumstances we consider it appropriate to look at the matter afresh.
Discussion
It remains helpful to begin by identifying the components of the sentence under appeal:
(a)offending against partner:
(i)six year starting point;
(ii)no uplift for previous offending;
(iii)three months deduction for remorse;
(iv)14 months deduction for guilty plea, meaning an effective sentence of four years seven months;
(b)offending against children:
(i)two year starting point;
(ii)three month deduction for remorse;
(iii)four months deduction for guilty plea, leaving a sentence of one year, five months;
(iv)sentence apportioned to each child, with three cumulative sentences then being imposed;
(c)totality:
(i)the four combined sentences came to a term of six years. That was regarded as too much and accordingly each of the sentences involving the children was shortened to produce a final term of five years six months’ imprisonment.
It can be seen that for all the offending the Judge took a starting point of eight years. It is submitted by Mr Muston, and accepted by the Crown, that this is too high. Mr Muston noted that at the original sentencing the Crown had suggested four and a half years as the total starting point, and he submitted that was an appropriate approach given the relatively moderate injuries. Ms Jelas submits that the six years taken for the partner was more appropriate for all the offending.
Although not pivotal, we have reviewed the Crown submissions at sentencing. It is not clear exactly what was being advanced. Certainly the starting point suggested for the partner was three and a half years. However, depending on how one reads it, the suggestion for the children was either 12 months in total (Mr Muston’s understanding) or three cumulative twelve month uplifts which would produce a six and a half year starting point.
Either way, we do not accept the lower starting point of four and a half years would adequately capture the breadth of offending committed by Mr Clark. There are here five representative charges of repeated violence against family members, as well as individual incidents that have caused specific injury and required the victim to take time off work, and suffer temporary sight impairment.
The offending is broadly similar to that which occurred in R v Ngamotu. In that case the victims were Mr Ngamotu’s partner, and their three children, as well as a single assault on another person. There were no representative charges but 21 specific offences. Mr Ngamotu’s partner had at various points suffered a cut that needed stitches, and lost a tooth as a result of the assaults. This Court held a starting point of six and a half years,[2] and a final term of five years two months, were at the higher end of the range, but available.
[2] R v Ngamotu [2010] NZCA 121.
We accept Ms Jelas’ assessment of six years as an appropriate starting point for all the offending. While the specific injuries are not in the more serious camp, the repeated assaults were numerous and varied, and involved everyone living in the household. The representative charges cover more than five years for the partner, and three years for each of the children. Mr Clark created a climate of fear by this violence, and repeated threats, and his actions will no doubt affect the victims for a long time to come.
In terms of a division of the starting point, we tend towards four and a half years for the offending against the partner, and 18 months total for the offending against the three children. Standing alone, that latter figure might well be higher.
The Judge did not impose any uplift for Mr Clark’s previous offending. We agree with that. Included among the list of previous convictions were two recent assault convictions that related to the partner and one of the children. The timing of these offences falls within the representative charges now being sentenced. It would not be appropriate to consider them as informing the uplift analysis. Putting those convictions to one side, there are other earlier offences of assault which might have attracted a short uplift, but which are not of a type that necessitated such a step. Since the Judge chose not to, we accept that assessment and do likewise.
That means the starting point remains at six years.
Turning to mitigation, the two matters requiring consideration are remorse, and the guilty plea discount.
Addressing remorse first, Mr Clark is a man who has known violence from a young age. Now aged 34, he is described as having had a dysfunctional and violent childhood which has undoubtedly influenced how he now acts as an adult. In recent time he has successfully undertaken courses. Mr Clark wrote to the sentencing Judge expressing remorse, and in doing so, displayed some insight into the effect his offending has had on his family.
In the initial sentence the Judge gave six months credit for remorse. That represented about seven per cent. There was then applied a 20 per cent discount for the guilty plea. We consider these figures to be appropriate. A tangible acknowledgement of these matters was required, but had to be tempered by the realisation that Mr Clark still has to give effect to his insight when next in the community. Six months is adequate recognition and encouragement.
We, therefore, reduce the overall starting point to five years six months in recognition of his remorse and efforts to reform, and then apply a guilty plea discount of 20 per cent. This produces a final sentence of four years five months.
The final issue raised on the appeal is totality. The Judge reduced his sentence from six years to five and a half years’ imprisonment for this factor. No specific reason was identified, and we take it to have been an adjustment for overall culpability, cumulative sentences having been imposed.
Mr Muston submitted there should, in addition, have been express credit for the five months’ sentence served by Mr Clark in relation to the two specific assault counts previously referred to. These were charged and dealt with prior to the laying of the representative charges, and fall within their compass. We disagree.
First, had two more specific counts formed part of the present charges the starting point may have been higher. Second, those sentences were served concurrently with a longer term Mr Clark was already serving on an unrelated matter. So they did not actually increase the time he spent in jail. Further, with the adjustments to the end sentence now made on this appeal, we see no need for any totality adjustment. A final sentence of four years five months does not overstate the total culpability, and any further reduction would be inappropriate.
Disposition
At sentencing, the Crown had sought cumulative sentences in relation to the children so as to mark out the separate offending against them. Whilst we would not have seen that as particularly necessary, it was the structure followed by the Judge and we repeat that here.
Accordingly:
(a)the appeal against sentence is allowed;
(b)the sentence of four years seven months imposed on the threatening to kill charge is quashed. In its place, we impose a sentence of three years six months’ imprisonment;
(c)all other sentences are unchanged.
For the avoidance of doubt, that means the total sentence is four years and five months’ imprisonment, consisting of four cumulative links being:
(a)three years six months for the threatening to kill; and
(b)the three sentences already imposed in relation to the children, being four months, four months and three months.
Finally, we record that Mr Muston appended to his submissions a list of complaints Mr Clark had with the sentence. The bulk of them relate to disputes with the summary of facts to which he pleaded guilty. It is too late to raise them now, and we doubt the points would affect the overall culpability. The other matters were addressed by Mr Muston.
Solicitors:
Crown Law Office, Wellington
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