R v Clarke Ca41/02

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S.139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 41/02

THE QUEEN

ROBERT HOKOIE CLARKE

Hearing:	29 April 2002
Coram:	Keith J Hammond J Salmon J
Appearances:	C J Perrior for Appellant K Raftery for Respondent
Judgment:	1 May 2002

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

Introduction

Mr Clarke pleaded guilty in the District Court at Rotorua to one charge of rape; one charge of unlawful sexual connection, and one charge of burglary. On 29 January 2002, he was sentenced by a District Court Judge to eight and a half years imprisonment on the charge of rape and unlawful sexual connection. On the charge of burglary he was sentenced to three years imprisonment, concurrent. He now appeals on the ground that the sentence imposed on him for the sexual offences “was wrong in principle and manifestly excessive”.
What is unusual about this case is that over a decade elapsed between the date of the offending and Mr Clarke’s arrest. He is another offender who has been brought to justice by the use of modern DNA technology. It is the lapse of this ten year period which gave rise to the sentencing problems in this case.

Facts

On the very day of the offending, which was 20 August 1991, Mr Clarke had been released from Paparoa Prison. During that day he spent all his money from his Steps to Freedom programme on alcohol and drugs. That evening, he and two associates went out looking for houses to burgle.
The complainant, X, was alone in her home. Her three children were asleep. X’s husband was absent, on business. Mr Clarke gained access to this house by climbing the outside wall, and entering via an upstairs bathroom. He confronted the complainant, who screamed. She was then grabbed by her shoulders. Mr Clarke said “shut up or I’ll hurt you”.
The complainant’s second child awoke and called out. X told the child to stay in bed. She was then pushed into her bedroom. Mr Clarke began rummaging through some drawers, looking for jewellery.
The complainant was required to remove her nightie. She was indecently touched. She was then pushed onto her bed and required to perform oral sex on Mr Clarke. She was then forced onto her back and raped for two or three minutes. Mr Clarke did not ejaculate inside the complainant, but withdrew his penis and cleaned himself and X on her nightie. We mention this detail only because it is relevant to his subsequent detection.
The complainant was then pulled from the bed. She was asked if she had any cash. She said she had some downstairs. Mr Clarke gave X back her nightie. She was then held while walking downstairs. At the appellant’s request, X turned off the alarm. She gave him the $20 she had downstairs.
There is a contest on the facts as to whether Mr Clarke told X that if she identified him in a police line up he would come back and kill her, but in the view we take of the case, this is no real consequence to the disposition of the appeal.
Mr Clarke then left the address, and was uplifted by his associates.
This offending was detected by DNA analysis in November 2001, when the ESR linked Mr Clarke with this crime scene by identifying his DNA in semen stains on X’s nightie.
When he was interviewed, Mr Clarke admitted breaking into the complainant’s home and sexually violating her. He said that he had intended to commit a burglary but that his plan had changed while at the address. He said that at the time he was under the influence of drugs and alcohol.

The Victim Impact Reports

The complainant in this case was 33 years of age in 1991. She was living at her home with her husband and three children, who were then aged 9, 8 and 3. Unsurprisingly Mr Clarke’s actions have had a huge impact on X’s life, and that of her family. She suffered from depression and had a nervous breakdown following the rape. She undertook professional counselling but nevertheless developed what she describes as a “siege mentality” which is still with her today. The incident attracted some notoriety. The victim felt that “she was walking around with a sign around her neck saying that she had been raped” with a consequential effect on her family and social life. There was an ongoing detrimental effect on the family. Unkind things have been said to the children as they grew up, at school. The complainant’s husband says “for someone unknown to you, to break into your family home, to threaten your wife and children and then rape your wife while your children are awake, is a permanent nightmare”.

The Pre-Sentence Report

When he committed these crimes, Mr Clarke was 26 years of age. He is now aged 36.
Mr Clarke has an extensive criminal history dating back to 1982, when he was 16 years of age. His previous convictions list confirms him as a recidivist professional burglar. He had appeared in the District Court every year without a break from 1982. As the probation officer said, this “represented an almost 20 year span of unrestrained offending”. Most of this time, except six and a half years, was spent serving prison sentences.
Significantly, Mr Clarke’s criminal activities continued unabated after this rape, with numerous burglaries, receiving, drink driving offences, assaults, and disobedience of court orders.
Mr Clarke has, since the offences with which this court is concerned, become involved in a de facto relationship of several years standing. There are two children to this union, aged 6 and 3. At the time of his arrest for these offences, Mr Clarke was receiving the unemployment benefit. He had done some forestry work, pruning of kiwifruit, and mowing lawns. Mr Clarke said he never went to school. He claimed to be illiterate. He denied any gang affiliations.
Mr Clarke told the probation officer he had met up with two of his friends and that together they started “drinking, drugging and pub-crawling”. Then they started driving around “a rich area” of Christchurch, looking for houses to burgle. His “automatic” burglary instincts came back to him. He denied to the Probation Officer that he had threatened to hurt X. The Probation Officer rightly found it highly disturbing that Mr Clarke’s attitude to the two sex offences was that he was unrepentant, to the extent of insisting that X was partly responsible for encouraging him to rape her. That is a suggestion which we reject outright.
At interview, Mr Clarke was said to be “evasive and overcautious”. He strongly rejected any suggestion that his offending was indicative of a propensity towards violence. The probation officer commented “Mr Clarke’s expressed resolve to address his [drugs and alcohol problem] in an effort to combat further offending is completely dismissed by [me]”. Mr Clarke’s motivation to apply himself to available programmes has been assessed on other occasions. He is considered not to be ready to make the necessary changes in his outlook and lifestyle “that would reduce his high risk of offending”.

The Sentence in the District Court

After reciting the background and what he considered to be the relevant circumstances attending on these offences, the sentencing Judge specifically noted that this offending occurred in 1991, and that the sentence to be passed must therefore be considered in light of the law as it was at that time. He referred to the well known authority of R v Clarke [1987] 1 NZLR 380 (CA), which held that a figure of five years should be taken as a starting point in a contested case, where there are no aggravating or mitigating factors. The Crown’s submission to the sentencing Judge was that even in 1991 “it was apparent that the courts were beginning to increase the length of sentences for sexual violation by rape”.
The Judge also noted that, even at the time of this offending, home invasion had been held to be an aggravating feature since (at least) as long ago as R v Puru [1984] 1 NZLR 248.
The Judge noted the fact of the home invasion; that one child was aware to some degree of what was going on; the additional indignities imposed upon the claimant; “and of course there was the threat to kill”.
The Judge took particular note of the decision of the Court of Appeal in Amohanga [1989] 2 NZLR 308 (CA). The facts in that case were that Amohanga had gone to a 77 year old complainant’s house one evening, got in a window, attacked the elderly complainant, pushed her to the ground, beat her about the head and body with the screwdriver and raped her. He demanded money, threatened to kill her and took her purse containing $20. He was sentenced to nine years imprisonment. Casey J, for the Court of Appeal, held that the sentence of nine years imprisonment in respect of Amohanga “while on the high side” by comparison with other authorities, was not beyond the limits of a properly exercised discretion in this field, having regard to the age of the victim and the brutal nature of the assault.
In the result, the sentencing Judge took a starting point of 10 years imprisonment. He reduced this to eight and a half years, for the guilty pleas.

Grounds of Appeal

The grounds of this appeal are stated to be as follows.
The learned sentencing Judge erred by
(a)finding that I made a threat to kill the victim when in a detailed statement to the police made within hours of the offence, she recounted no such threat.
(b)not giving sufficient allowance for the fact that I pleaded guilty before the provenance of the DNA analysis was established, when the Crown Solicitor admitted an error in the methodology of an earlier blood sample.
(c)finding that the rape was a calculated act when it was not.
(d)finding on the basis of the victim impact reports that the offences had an extraordinary effect on the victim and her family when serious though those effects no doubt were, they were not significantly worse than those of other victims of rape.
(e)relying on an emotive probation report in finding that I was unrepentant when the report makes no mention of my having been asked and I had already expressed remorse when interviewed by the police.
(f)not giving me proper credit for the apology I made to the victim’s husband in open court.
(g)finding that I was a very violent person when my criminal record suggests otherwise.
(h)s.17C Crimes Act 1961 (as amended) increased the maximum sentence for rape where there was home invasion, by 25%. In my case they only admitted aggravating factor was home invasion but the learned Judge doubled the agreed starting point in a contested trial.
(i)imposing a deterrent sentence when
(i) I had not committed a sexual offence prior to the rape and have not committed once since.
(ii) The authorities show that length of sentence is of no deterrence in rape cases.

Discussion

A common thread through several of these grounds of appeal, is a complaint that the Judge erred in his factual findings. These included the finding of a threat to kill; that the rape was a calculated act; that the effect on the victim was extraordinary; that the appellant was unrepentant; and that Mr Clarke was a violent person.
In our view, there was a basis in the material before the Judge for all of those findings, except perhaps the finding of a threat to kill. It was not mentioned in the complainant’s original statement to the police, made within hours of the offence; instead it was contained in the victim impact statement made some 10 years later. But even putting that factor to one side in fairness to Mr Clarke, we do not think that factor weighs heavily in this particular instance, given the other matters found against the appellant.
The second complaint is that the sentence was out of line with comparable cases. Counsel referred to Amohanga, which has already been mentioned. Reference was also made to R v Pou [1985] 2 NZLR 508. In that case, Mr Pou broke into a residence, having decided to commit a burglary. This residence was occupied by an 81 year old widow. She was bound and gagged, raped twice and forced to have oral sex. Mr Pou threatened to kill her. A sentence of a ten and a quarter years was held to be excessive, and was reduced to eight years imprisonment. We were also referred to R v Reuben (CA 171/90; 19 April 1991). There, a friend of the complainant and her husband went to the complainant’s house at night, attacked her, and Reuben attempted to rape the victim, but was unable to achieve full penetration due to the presence of a tampon. A sentence of seven years imprisonment was upheld.
It is trite that each case turns on its own facts; that sentencing tariffs are merely starting points; and that it is the overall sentence, however arrived at, to which regard must ultimately be had. Nevertheless, it is as well to emphasise those considerations here.
By late 1991, there is no question that sentences for rape had begun to increase over the figures which gave rise to R v Clarke. (See the comments of the President of the Court of Appeal in R v A [1994] 2 NZLR 129 at pp 132-133). There was not a sudden jump from the old tariff, to the new tariff of eight years under the Crimes Amendment Act (No.2) 1993, which was settled by this Court in R v A. We do not regard a starting point of six years in the early 1990’s, as having been inappropriate.
There then have to be considered the aggravating and mitigating factors. Here, the aggravating factors were:
(a)The extraordinary circumstances that this rape occurred on the very day of release from prison.
(b)It occurred during the course of premeditated and quite deliberate criminal activity.
(c)This was a blatant home invasion, which included the scaling of a wall.
(d)There were indecencies; and oral sex, as well as the rape, inflicted on the victim.
(e)The second child was (at least) aware that something was seriously amiss.
(f)Mr Clarke’s “repentance” is hopelessly belated, and convenient. His reported justification to the Probation Officer that X was “partly responsible for encouraging him to rape her” is both repugnant and revealing.
In our view, these aggravating factors, taken cumulatively, entitled the sentencing Judge to adopt a starting point of ten years. There was little which could be said in mitigation, except that this was the first sexual offending, and pleas of guilty were entered.
The third complaint is that Mr Clarke was not given a sufficient allowance for these guilty pleas, or his (belated) courtroom apology to the complainant and her husband.
The discount of one and a half years from the ten year starting point was not generous. The Judge justified it by the strong case against the complainant. This court has stated on numerous occasions that even where a conviction is inevitable, there should be a significant reduction for an early plea of guilty, which relieves the victim of the anguish of a trial and results in economic saving to the state.
The authorities were reviewed by this court in R v Coronno (CA 366/01, 6 December 2001) per Robertson J:
The question of discount was recently considered by this Court in R v Woolley CA02/01, 23 July 2001 where it was noted:
A plea of guilty has long been recognised by this Court as ordinarily mitigating culpability and justifying a reduced sentence. In R v Taylor [1968] NZLR 981, 987 this Court quoted with approval the statement of Edmund Davies LJ in R v de Haan [1968] 2 QB 108, 111 when he said that:
[a] confession of guilty should tell in favour of an accused person, for that is clearly in the public interest.
This Court confirmed that recognition of the discount for a plea of guilty in R v Ripia [1985] 1 NZLR 122, 128 where R v Roberts [1982] 1 WLR 133 (CA) and R v Fraser (1982) 4 Cr App R (S) 254 are also cited.
Three reasons for the reduction were expressed in R v Strickland [1989] 3 NZLR 47, 51 by Richardson J (as he then was) as:
[I]t spares the victim the ordeal of giving evidence; it saves the State the time and expense of a defended hearing; and it may be evidence of the offender’s acceptance of responsibility for wrongdoing and contrition.
What that allowance will be will depend on the particular circumstances including the nature of the offences, the strength of the Police case, the likely length of the trial which is obviated, the stage at which the guilty plea is entered and whether the plea is considered by the Court to reflect genuine remorse. In R v Mako [2000] 2 NZLR 170, 176 this Court said that “pleading guilty should attract a meaningful discount” but noted that the Court:
Has resisted laying down any specific quantum or proportion for such discount because of the widely varying circumstances in which it might be entered. Generally, however, it is accepted that the earlier the plea the more the discount.
In this case the Judge specifically said that he considered the fact that X was not required to give evidence. It is also correct, as counsel noted, that the DNA certificate had not been finally proved at the time the guilty plea was entered. In that technical sense the proof against Mr Clarke was not complete. But Mr Clarke well knew what the practical proposition was which he was facing: that the Crown would have very strong forensic evidence against him.
That said, an appeal against the actual discount adopted by a sentencing Judge is an appeal against the exercise of a discretion. We are not persuaded that we should interfere with the actual figure adopted in this case. The Judge was not plainly wrong.
In the result, the appeal is dismissed.

Solicitors:

Crown Solicitors Office, Auckland
C J Perrior, Auckland for Appellant

[2002] NZCA 381

1 May 2002