Clark v R - [2013] NZCA 63

IN THE COURT OF APPEAL OF NEW ZEALAND

CA347/2012
[2013] NZCA 63

BETWEEN JOHN MANULE CLARK
Appellant

AND THE QUEEN
Respondent

Hearing: 13 February 2013

Court: White, Simon France and Asher JJ

Counsel: C Muston for Appellant
J M Jelas for Respondent

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…

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 R

Details

AGLC: Clark v R [2013] NZCA 63
Case: [2013] NZCA 63
Decision Date: 18 March 2013

CaseChat Overview and Summary

In this case, John Manuel Clark appeals against his sentence of five and a half years' imprisonment imposed for a sustained course of violence against his partner and their children. The Court of Appeal allowed the appeal against sentence, reducing the overall sentence to four years and five months' imprisonment. The court substituted a sentence of three years and six months' imprisonment for the representative charge of threatening to kill and maintained the other sentences unchanged. The court found the original sentence was influenced by incorrect information regarding the time span covered by the representative charges and the offending against the children. The court assessed the components of the sentence and adjusted the starting point for the offending against the partner and children, taking into account the moderate injuries caused and the repeated nature of the violence. The court also considered the appellant's remorse and guilty plea discount before arriving at the final sentence of four years and five months' imprisonment.

The court found that the original starting point of eight years was too high, and instead accepted a starting point of six years as appropriate for the offending committed. The court also noted that the appellant's previous convictions were not relevant to the uplift analysis. The court considered the appellant's remorse and efforts to reform, reducing the overall starting point to five years and six months in recognition of these factors. The court also applied a 20% discount for the guilty plea, resulting in a final sentence of four years and five months. The court found that no further reduction was necessary for totality, as the final sentence did not overstate the total culpability.

Orders