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Clarke v The King

Clarke v The King

Case [2024] NZCA 199 31 May 2024

Sentencing

Breach of Contract

Unconscionable Conduct

Aggravated & Exemplary Damages

Contempt of Court

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA504/2023
[2024] NZCA 199

BETWEEN	WAYNE TE AWAWA JOHN CLARKE Appellant
AND	THE KING Respondent

Hearing:	20 May 2024
Court:	Wylie, Lang and Campbell JJ
Counsel:	J J Rhodes for Appellant C P Paterson and L Dalton for Respondent
Judgment:	31 May 2024 at 11 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed in part.
BThe sentence of five years and one month’s imprisonment is set aside and substituted with a sentence with a sentence of four years and eight months’ imprisonment on the lead charge of being in possession of methamphetamine for supply. The lesser concurrent sentences imposed by the Judge on the remaining charges remain intact.

____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

Mr Clarke entered guilty pleas in the District Court to charges of being in possession of methamphetamine for supply, a representative charge of being in unlawful possession of a firearm, attempting to manufacture a firearm, threatening to kill (x 2), threatening to cause grievous bodily harm and threatening to destroy property. He also pleaded guilty to a charge of failing to comply with his obligations in relation to a computer search and failing to comply with COVID-19 orders. On 10 August 2023, Judge Maxwell sentenced Mr Clarke to five years and one month’s imprisonment.[1]
[1]R v Clarke [2023] NZDC 25285 [sentencing notes].
Mr Clarke appeals against sentence. He contends the Judge adopted a starting point on the methamphetamine charge that was too high and then applied uplifts that were excessive for the remaining charges. He also says the Judge failed to provide him with adequate discounts for mitigating factors. Mr Clarke contends these errors resulted in the Judge imposing an end sentence that was manifestly excessive.

The offending

Mr Clarke was sentenced on the basis of an agreed summary of facts. This recorded that at the time of the offending Mr Clarke was a prospect for the Head Hunters motorcycle gang, having previously been a senior member of the Black Power gang. Between April and September 2020, he was serving a sentence of 17 months’ imprisonment imposed on charges of being in possession of methamphetamine for supply and being in unlawful possession of a firearm and ammunition.
Whilst in prison, Mr Clarke was able to procure access to a cell phone. During April and May 2020, he sent several text messages to persons whom he believed owed him money. The messages threatened in graphic terms to kill or cause serious injury to the unknown recipients. He also threatened to kill one recipient and burn her house down. This series of events led to Mr Clarke facing a representative charge of threatening to kill and cause grievous bodily harm. He also faced two discrete charges of threatening to kill and a charge of threatening to destroy property. The charges of threatening to kill and threatening to cause grievous bodily harm carry a maximum sentence of seven…

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 Clarke v The King

Details

AGLC: Clarke v The King [2024] NZCA 199
Case: [2024] NZCA 199
Decision Date: 31 May 2024 at 11 am

CaseChat Overview and Summary

The appellant, Wayne Te Awaawa John Clarke, appeals against his sentence. The Crown accepts the appeal in part. Clarke was sentenced to five years and one month's imprisonment for various charges, including possession of methamphetamine for supply, unlawful possession of firearms, attempting to manufacture a firearm, and sending threatening text messages while in prison. The Court of Appeal found that the starting point on the methamphetamine charge was too high, and that the uplifts applied for the remaining charges were excessive. However, the Court found that the total discount of 20 per cent applied to reflect mitigating factors was appropriate. The Court of Appeal set aside the sentence of five years and one month's imprisonment and substituted it with a sentence of four years and eight months' imprisonment on the lead charge of being in possession of methamphetamine for supply. The lesser concurrent sentences imposed by the Judge on the remaining charges remain intact.

Orders