Clarke v The Queen

[2014] NZHC 2999

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000105 [2014] NZHC 2999

JAMIE ANTHONY CLARKE

v

REGINA

Hearing:	27 November 2014
Appearances:	K Gray for Appellant K B Bell for the Crown
Judgment:	28 November 2014

JUDGMENT OF WHATA J

[1]     Jamie Anthony Clarke was sentenced to two years and three months imprisonment1  on one count of arson,2  one charge of escaping custody3  and one charge of common assault.4   He appeals sentence on the basis that:

(a)       The sentencing was not in accordance with the sentencing indication. (b)     There was insufficient credit for guilty pleas.

(c)       There was insufficient credit for remorse.

(d)There was insufficient credit for motivation to address the cause of his offending.

1      R v Clarke DC Christchurch CRI 2014-009-6160, 7 October 2014.

2      Crimes Act 1961, s 267(1)(a), punishable by a term of imprisonment not exceeding 14 years.

3      Section 120(1)(c), punishable by a term of imprisonment not exceeding five years.

4      Summary Offences Act 1981, s 9, punishable by a term of imprisonment not exceeding six months or a fine not exceeding $4,000.

CLARKE v R [2014] NZHC 2999 [28 November 2014]

Background

[2]      Mr Clarke pleaded guilty to the three abovementioned charges after receiving a sentencing indication.  At that indication, the Judge was not prepared to give an “end point” indication because the outcome in arson cases is, he said, often heavily influenced by the pre-sentence report and any psychological report.   The Judge indicated a starting point of three years but noted that the appellant would have the opportunity to argue at sentencing for a lower starting point.  He also indicated that it would be open to the appellant to argue for home detention.

[3]      The  appellant  then  appeared  for  sentencing  on  7  October  2014.    Judge

G S MacAskill outlined the relevant facts as follows:5

[2]       There are two summaries of the facts and I come to those.  As to the assault charge:   You and the victim live close to each other in a council housing development in Middleton.  On 5 June you went to the victim’s flat and questioned him about whether he had moved your bike.   He admitted that he had.  You threatened to assault him if he moved it again.  He said he would not, but you then punched him on the forehead with a closed fist. The victim grabbed a hold of you to restrain you and to stop further assault.  A struggle ensued and you both fell onto the victim’s large cactus plant.  You both suffered injuries as a result.   Considerable pain was suffered, in particular, by the victim.

[3]       As to the arson and escaping custody:   The summary shows that, following the incident I have just described, on 6 June the victim was resting at his home.  You obtained a nine kilogram gas bottle and placed it outside the front porch area in front of the victim’s sliding door.  You then placed a yellow cloth over the top of the gas bottle and you ignited the yellow cloth. The flames melted a plastic pot plant on the front porch area of the victim’s flat.  A neighbour found the fire and extinguished it in its early stages.  The summary shows that, if the neighbour had not discovered the fire, serious damage to life and property could have ensued.

[4]      The Judge had regard to victim impact statements, noting that the assault caused considerable pain and discomfort to the victim and the arson caused serious inconvenience.  The Judge also noted that the appellant’s letter to the Court made clear that he accepted responsibility for his offending and that he accepted that imprisonment was inevitable.  He also accepted that the appellant showed a level of insight and that he was motivated to address his underlying offending.

[5]      He refers then to the indication that he gave and notes that the appellant’s

counsel did not argue for a sentence of less than imprisonment.   He rejected a

33 percent discount on the basis that such a discount should be reserved to those who plead guilty very promptly to the charges, within a week or two after they have had the opportunity to take legal advice.  He then gives a credit of 25 percent taking into account additional matters, the appellant’s motivation to change and remorse.

[6]      He then takes a starting point, as indicated, to be two years and six months and applies an uplift of six months for the aggravating factors relating to previous offending, bringing the adjusted starting point to three years.  He deducted the total

25 per cent discount of nine months for the guilty plea and other factors, resulting in an end sentence of two years and three months.   Concurrent sentences were also imposed for escaping police custody (two months) and assault (four months).  The appellant was ordered to pay reparation on the arson charge of $550.

Jurisdiction

[7]      Section 250 of the Criminal Procedure Act 2011 states:

250     First appeal court to determine appeal

(1)      A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2)      The first appeal court must allow the appeal if satisfied that—

(a)   for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

(3)      The first appeal court must dismiss the appeal in any other case.

[8]      In order to succeed on appeal there must be a material error.  It is now settled that the longstanding approach to sentence appeals remains apposite.   A sentence which is manifestly excessive, wrong in principle, or flawed on its face, may be corrected on appeal.6

[9]      Relevant also to this case is s 116 of the Criminal Procedure Act which provides that a sentencing indication is binding on the judicial officer that gives it unless information becomes available to the Court after sentence indication was given  but  before  the  sentencing  and  the  judicial  officer  is  satisfied  that  the information materially affects the basis on which the sentencing indication had been given.

Argument

[10]     Counsel for the appellant submit, in short:

(a)      At the sentencing indication the police noted that Mr Clarke would be eligible for close to 25 per cent discount for an early guilty plea.  The sentencing indication also implies the potential for a sentence of less than two years from a starting point of three years.  But the Judge did not do this on the basis of delay.  However, any delay was not due to any fault of the appellant.  The appellant, after receiving advice about the  charges  and  significant  amendments  made  to  the  summary of facts, entered guilty pleas.  A full discount should therefore have been given.

(b)The appellant was therefore entitled to a further discount in addition to the 25 percent  given, namely up to 33 percent, to account for remorse and his motivation to change.

[11]     Ms Bell for the respondent says:

(a)      The sentence of two years and three months imposed by the Court accords with the sentencing indication.

(b)Only a minimum discount was warranted for the purposes of remorse and motivation to change.

(c)      The plea was not entered at the earliest opportunity and, while the delay is explainable, a challenge to the appropriateness of the charge

reflected an unwillingness by the appellant to accept that danger to life was likely to ensue from his actions, a matter which he ultimately

accepted by his pleas.

Assessment

[12]     The appeal essentially comes down to the resolution of one issue, namely whether the Judge erred by not affording the appellant a full discount for guilty plea. It does not appear that the Judge was given a detailed account of the reasons for the delay of entry of a guilty plea.  I now have the benefit of that chronology.  In short:

(a)      The appellant’s first appearance on the charges was on 14 July 2014, where initial disclosure was received.  Counsel sought an adjournment without delay to review disclosure and for potential negotiations to take place with police.

(b)Counsel made several inquiries of the appropriateness of the charge and whether any alternative charge under s 267 of the Crimes Act would be accepted by the police.

(c)      The police had not provided counsel with a response by the time the appellant appeared again on 28 July 2014.

(d)Following the 28 July appearance, the Police accepted crucial amendments to the summary of facts, namely that the gas bottle had not been turned on.

(e)      The appellant appeared again on 4 August 2014 and indicated that he would seek a sentencing indication.   The sentencing indication was remanded to 11 August 2014 for counsel to file submissions.  It was unable to proceed on 11 August as police had not filed submissions.

(f)      The sentencing indication took place on 21 August 2014.  The guilty pleas were then entered on 1 September 2014.

[13]     For  my  part,  I  consider  that  an  accused  must  be  entitled  to  have  the opportunity to examine the police record and to resolve with the police the appropriate summary of facts.  Having reached agreement on the summary of facts, an accused should then be given the opportunity to consider whether, in light of that revision, a guilty plea should be entered.  It seems to me, on the facts as essayed, that the appellant did in fact make a guilty plea shortly after a sentencing indication made on the summary of facts that had only recently been agreed.  It seems therefore that any discount should be at the upper end for a guilty plea in these circumstances.

[14]     When I then return to the sentencing indication, it states:

[7]       Three years starting point.  If it [ie: the end point] gets below two years, as one might expect, then home detention is open.  So it will be open for you to argue for a lesser starting point.  I am open to you to argue for home detention.   I am not closing the door, despite the fact that he got community-based sentences on his last arsons, didn’t he?   He got special conditions as well, which suggests that there might be more to this than might meet the eye.

(Emphasis added)

[15]     I can see from the italicised words that Mr Clarke might have legitimately expected a full discount of 33%, especially if the police submitted that a full discount would follow from a plea of guilty.  While the Judge may not have intended to imply that a full discount could be expected, I think that the defendant might legitimately have expected that result.  In these circumstances and given s 116, I consider that the Judge was bound to give a full discount unless other factors intervened.  In terms of the timing of the guilty plea, with the benefit of the full chronology, I consider that a full discount was warranted.

[16]     The appeal is allowed.   The sentence is reduced to account for a full 33% discount.     At a starting point of three years allowing 33% discount reduces the sentence of imprisonment from two years three months to two years.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co, Christchurch