R v Clarke HC Auckland CRI 2010-090-001184

[2011] NZHC 413

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-090-001184

THE QUEEN

v

DANIEL BRENDON CLARKE

Hearing:         7 April 2011

Appearances: M Hodge for Crown

N Wintour for Accused

Judgment:      7 April 2011

SENTENCING NOTES OF WHITE J

Solicitors:         Crown Solicitors, PO Box 2213 Shortland Street, Auckland 1140

Counsel:           N Wintour, PO Box 2976 Shortland Street, Auckland 1140

[1]      Mr Clarke, following a jury trial in this Court over which I presided, you were found guilty by the jury on 25 February 2011 of causing grievous bodily harm with intent to do so.  You had previously pleaded guilty on 16 June last year to a

charge of driving with excess blood alcohol.

R V CLARKE HC AK CRI 2010-090-001184 7 April 2011

[2]      The maximum penalties for these charges for which you now appear for sentence are:

(a)      For causing grievous bodily harm with intent to cause grievous bodily harm under s 188(1) of the Crimes Act 1961, the maximum penalty is

14 years’ imprisonment; and

(b)For  driving  with  excess  blood  alcohol,  this  being  your  third  or subsequent offence, you come under s 56(4) of the Land Transport Act 1998, the maximum penalty for that offence is two years’ imprisonment and in addition I am obliged to impose a period of disqualification from driving of not less than one year.

Facts

[3]      You were found guilty by the jury on the basis of the evidence given in Court. The parts of the evidence that I am to take into account when imposing sentence are prescribed by s 24 of the Sentencing Act 2002. As I presided over the trial, I am also able to draw on the evidence that I heard at the trial, provided it does not conflict with the jury’s verdict.[1]   I summarise the facts of your offending in brief.

[1] R v Heti (1992) 8 CRNZ 554 (CA); R v Kovacevich CA173/06, 5 September 2006.

[4]      You and the victim, Ms Purukamu had a turbulent relationship over a number of years and you have a young son together.   It seems that you were not living together at the time of the offending and that you had the care of your son.

[5]      On the evening of 5 February last year you were drinking at your home with some of your friends.   Late in the evening you received a text message from the victim  who  had  been  out  drinking  and  who  asked  you  to  pick  her  up  from Henderson.  A friend of yours drove your car to Henderson with you accompanying him.   You picked up the victim and then dropped off your friend at his home at which point you took over driving.  You then drove to the victim’s home, the scene

of the principal offence.

[6]      On arriving at Ms Purukamu’s home an argument broke out between you. The exact details of the confrontation are not important, but it seems that there was blame on both sides.   The culmination of the argument involved your leaving the house and going to your car, Ms Purukamu following you and, after a physical confrontation near the vehicle, your getting into the car.   The victim continued to lash out at the vehicle, kicking and punching it, while you remained inside. You then put the car into motion, reversing it and then drove forward hitting Ms Purukamu. While your defence at trial was that you did not intend to do so, the jury found otherwise.

[7]      In the aftermath of the incident, you briefly fled the scene, leaving for some five to ten minutes. You then returned and called emergency services. You remained at the scene, were tested for alcohol and arrested.

[8]      Ms Purukamu has suffered serious injuries.  While it does not seem that her life was critically endangered, she suffered many lacerations and bruises to her skin, had several broken bones, including her pelvis which was broken in multiple places. She has undergone extensive treatment and rehabilitation, but is likely to have ongoing  difficulties  from  her  injuries.     The  evidence  of  the  medical  expert, Dr McCowan, which I heard during the trial, recorded that her pelvis was broken in at least three places, some ribs were broken and there were some internal injuries. Dr McCowan performed two operations to rebuild her pelvis and is still involved in her rehabilitation. He estimated the time necessary for stabilisation of her injuries at some 12 to 18 months, but care and the effects of  the injury will be ongoing. Ms Purukamu will have to live with screws in her pelvis which hold it together and a difference in the length of her legs.

Victim Impact Statement

[9]      I have read a victim impact statement which details the effect that  your offending has had on Ms Purukamu’s life.   She recounts the physical injuries she suffered and the course of her treatment.  These are extensive. She was confined to hospital for some months, underwent reconstructive surgery that deprived her of her

independence and confidence.   She faces ongoing difficulties  from her physical impairment and the possibility of further surgery.

[10]     The  injuries  have  had  emotional  effects  as  well,  with  the  scarring  and problems  with  her  leg  affecting  her  self-confidence.     Rehabilitation  has  also exercised a heavy emotional toll on her.  There were other more indirect effects of the offence.  She has had more limited contact with her children, panic attacks and depression, though she seems to suggest that these problems may be beginning to recede. She has also had difficulty explaining the offending to your son.

Personal Circumstances

[11]     Mr  Clarke,  the  information  I  have  received  from  the  Probation  Service indicates that you are a 34 year old man with Maori heritage, born and raised in Auckland.  You are the youngest of your siblings and your early family life appears to have been upset by your parents’ drinking and violence.

[12]     You left school early and have worked at various jobs in the time since and are a qualified mechanic.  You have two children by your first partner and a young son by the victim.  You have had custody of those children over the years due to disruptions in the lives of your partners.  There is no evidence to suggest that you are not a good father or that violence extends to your children.

[13]     I understand that you also lost your mother in December of last year while you were awaiting trial and that this has had a considerable impact on you and your children.

Prior Convictions

[14]     You have a number of prior convictions for various offences.  I divide these into two categories: those that are relevant to the violent offending and those that are relevant to the drink-driving.

[15]     You have previous convictions for common assault from 1995, a conviction for male assaults female from 2008 and a conviction for behaving threateningly

which was committed in 2009, but for which you were convicted last year and

sentenced to one month’s imprisonment.

[16]     With regard to the drink driving, you have been convicted of alcohol related offending three times, in 1994, in 1999 and 2000.  You have also several convictions for driving while disqualified and operating vehicles in various unsatisfactory ways.

Pre-sentence report

[17]     I have read two pre-sentence reports for you Mr Clarke.  The first, earlier report referred to an erroneous charge but otherwise has useful information and the second report is predicated on them being read together, I asked counsel if they wished me to consider both reports and they agree that is the proper course.

[18]     The reports assess your insight into and remorse for your offending.  They also attempt to point out factors that pose a risk of your reoffending and to quantify that risk.  Finally, the report-writers make recommendations of the appropriate type of sentence.

[19]     The report-writers both note a harmful pattern of alcohol use as contributing to your offending and as a potential risk in the future.  You have previously tried to deal with  your abuse of alcohol, but  relapsed.   You self-referred to the Higher Ground programme again in September last year and they are willing to accept you as a residential patient, but your trial and conviction preclude that now.   You are assessed as having a high motivation to address this aspect of your behaviour.

[20]     The report-writers also identify patterns of violent behaviour in your past. They consider this a more ambivalent factor.  In the first report you are assessed as motivated to address this.  The second report finds difficulty with your statements that the offending was not “intentional”. The reports cautiously assess your ability to change this aspect as relatively positive and the second notes that you have attended a course relating to domestic violence which was unfortunately terminated by your conviction.

[21]     Overall the reports detail a considerable motivation to change and to address the causes of your offending.   The first addresses your risk of reoffending as moderately high.  The second report-writer believes that your risk of reoffending is moderate at best, and can be effectively managed and reduced to a low level by addressing the causes and family support.

[22]     Both reports conclude by recommending a sentence of imprisonment for your current offending.

Letters and References

[23]     I  have  received  from  your  lawyer,  Mr  Wintour,  a  letter  that  you  have addressed to the Court as well as references that others have been willing to write to show that they support you, including two references provided to me in Court this morning.  I have  read the references and your letter in particular and I take them into consideration.

Purposes and Principles of Sentencing

[24]     I consider the following purposes of sentencing (s 7 Sentencing Act 2002) to be relevant in your case:

(a)       Accountability   for   harm   done   to   the   victim   and   community

(s 7(1)(a));

(b)      Responsibility for, and acknowledgement of, that harm (s 7(1)(b)); (c)          Provide for victims’ interests (s 7(1)(c));

(d)      Denunciation (s 7(1)(e)) and deterrence (s 7(1)(f)); and

(e)       Rehabilitation and reintegration (s 7(1)(h)).

[25]     In addition I consider that certain of the principles to be found in s 8 of the

Act are also relevant to my task today:

(a)       Gravity of the offending, including the degree of culpability (s 8(a)); (b)           Seriousness of the type of offence (s 8(b));

(c)       Consistency with appropriate sentencing levels (s 8(e)); (d)    Effect of offending on the victim (s 8(f)); and

(e)       Offender’s   personal,   family,   whanau,   community,   and   cultural

background where rehabilitation is a purpose (s 8(i))

Aggravating and Mitigating Factors

[26]     In addition I consider that the following aggravating and mitigating factors

(s 9) are present in your case:

(a)       Actual or threatened violence or use of weapon (s 9(1)(a)); (b)           Offending whilst on bail (s 9(1)(c));

(c)       Prior convictions (s 9(1)(j));

(d)      The conduct of the victim (s 9(2)(c)); and

(e)       Remorse (s 9(2)(f)).

Submissions

Crown Submissions

[27]     Counsel  for  the  Crown,  Mr  Hodge,  in  his  submissions  has  suggested  a starting point for the violent offending of between five years six months’ and seven years’ imprisonment, putting it within band two of the tariff case, but noting that there might be scope for provocation to reduce the starting point.

[28]     In respect of the drink-driving charge, the Crown submits that a sentence of

3-6 months’ imprisonment and disqualification for a year be imposed cumulatively on the sentence for the other offence.

[29]     Aggravating  factors  are  to  be  found  in  your  previous  convictions  and offending while on bail.

Submissions on your behalf

[30]     Your  counsel,  Mr Wintour,  has  submitted  that  the  Court  should  adopt  a starting point of between six years and six years six months’ imprisonment which would  take  account  of  totality  (meaning  by  that  the  drink-driving  charge), provocation and the circumstances of the offence, and then a reduction should be made for provocation of, say, six months.

[31]     In  addition, a reduction  for factors personal to  you, should, Mr Wintour submits, reduce the starting point to a final sentence of between five years and five years six months imprisonment.

Sentencing Approach

Tariff Case: R v Taueki

[32]     As both counsel correctly submitted, the guideline judgment in R v Taueki[2] is specifically directed at offences under s 188(1).  In that judgment the Court set out

[2] R v Taueki [2005] 3 NZLR 372 (CA).

three bands for this type of offending.[3]

[3] At [9].

(a)      Band one: 3-6 years: where no aggravating features are present, a starting point at bottom of this band is appropriate.   Where one or more is present, a higher starting point is required.

(b)Band two: 5-10 years: this is appropriate for grievous bodily harm offending featuring two or three aggravating features.

(c)      Band three: 9-14 years: this encompasses serious offending with three or more aggravating features, where the combination of aggravating features is particularly grave.

Assessment factors

[33]     In R v Taueki the Court identified various factors going to the seriousness of the offending.[4]   I mention those that apply in your case:

[4] At [31].

(a)       Use of a weapon:

(i)the use of your car to inflict the injuries that Ms Purukamu suffered is an aggravating factor, making this offence more serious than an attack with simply your hands or feet.

(ii)Any motor vehicle also has a high potential for causing lethal harm when used as a weapon.

(iii)I do, however, accept that in your case there was no element of premeditation or contemplation that the vehicle would be used in such a fashion; its use was essentially impulsive.

(b)      Seriousness of the injuries:

(i)The injuries that your victim has suffered are serious, and she said in Court and in her victim impact statement that she has

ongoing problems as a result of the incidents of that night. This was confirmed by the evidence of Dr McCowan to which I have referred.

[34]     The Court in Taueki also mentioned that some features of the offending may tend to mitigate the seriousness of the offending.  Under R v Taueki provocation may by relevant to the starting point where the victim’s action can be shown not merely to have incensed the offender, but also to have been a serious provocation which acted

as an operative cause for the violence.[5] This is something less than provocation as it

existed  under  s  169  of  the  Crimes Act  1961.    I  consider  that  Ms  Purukamu’s behaviour including the fight in the house, and the kicking and punching of the car, may have played some role in the offending.  Your reaction was disproportionate in the extreme, but it does seem likely that such a backdrop did contribute to your actions. And this is confirmed by the fact that once you had stopped your vehicle up the street and calmed down you returned to the scene and called the emergency services.

[5] At [32].

[35]     I note finally that no particular importance either aggravating or mitigating is to be attached to the domestic nature of the offending or to your use of alcohol that night.[6]

Relevant or comparable cases

[6] At [33].

[36]     There are a few cases in which a motor vehicle has been used as a weapon in the conduct of a violent offence;[7] three I consider to be of assistance:

[7] Meads v Police HC Wellington AP 325/98, 10 February 1999; Brookland v Police HC Christchurch A12/03, 13 February 2003.

(a)      R v Bolt:[8] Attempted murder (14 years maximum).  Bolt chased and ran down a teenager in his vehicle then proceeded to further attack his head  with  a  hammer.    Severe  internal  injuries  to  young  victim requiring treatment in intensive care.  Starting point of 10 years, six

[8] R v Bolt HC Rotorua CRI-2009-077-1497, 28 October 2010.

months.    Previous convictions, offending while on bail aggravated

offending.  Guilty plea and other factors reduced.  Final sentence of seven years 6 months’ imprisonment.

(b)R v Goyen:[9] Wounding with intent to cause grievous bodily harm (14 years maximum).   Goyen ran over a person unknown to him in the forecourt of petrol station after the man slapped his bonnet.   Life- threatening  internal  injuries  suffered.     Six   year  starting  point. Absence of any particular aggravating or mitigating factors.  Sentence of six years’ imprisonment upheld on appeal.

[9] R v Goyen CA285/05, 1 May 2006.

(c)      Police v Sutherland:[10]  Aggravated injuring (seven years maximum).

[10] Police v Sutherland HC Wellington CRI-2006-435-1, 27 June 2006.

Stopped at checkpoint, police civilian staff in front of vehicle.  Drove off and then braked to throw victim from vehicle.  Moderate injuries including broken bones.   Starting point of four years six months’. Uplift for other offending but discount for guilty plea and remorse. Final sentence of three years six months’ imprisonment upheld on appeal.

Analysis

Setting a starting point

[37]      In its discussion of the different bands of grievous bodily harm offending, the Court of Appeal in R v Taueki discussed two different types of domestic violence situation, the first falling into band one and the second into band two:[11]

[11] At [37] and [39].

Domestic assault: A domestic assault by an offender on his or her spouse or partner (or former spouse or partner) which is impulsive, does not involve the use of a weapon and does not cause lasting injuries, but where the victim is properly classified as vulnerable, may require a starting point in the region of four years.  Where there is a degree of premeditation or there is the use of a weapon (but, again, no lasting injuries), a higher starting point could be expected, perhaps five years or more...

Premeditated domestic assault: A domestic attack on the partner or former partner of the attacker which is premeditated and involves the inflicting of serious and lasting injury would require a starting point in band two.  The

appropriate point in that band would require evaluation of the seriousness of those factors.  Where the attack involves the use of a weapon, particularly where it is brought to the scene, the starting point could be expected to be at the higher end of band two.

[38]     Your offending in this case is difficult to place.   The presence of serious injury and the use of a weapon suggest a point somewhere above five years.  Yet, there is no premeditation, no particular vulnerability (you and Ms Purukamu were up to the point of the offence essentially fighting on equal terms) and some element of provocation. These suggest a lower starting point might be justified.

[39]     The overlap between bands one and two occurs at the five year mark.   I consider that your case with its particular features should be situated above that mark.  The seriousness of the injuries is notable and lasting, although the victim’s life does not at the time seem to have been in immediate danger.   There was no premeditation.  The use of a weapon is serious, but the car was not brought with the intention of using it and its use was impulsive.  Lastly there was an ongoing, two- sided confrontation between you and the victim in the build up to your offending. Adopting a starting point of five years six months’ imprisonment, that is higher than Sutherland, reflects the more serious injuries and the more serious charge.   The injuries are perhaps less serious than in Goyen and there is not the random, indiscriminating element in your case.   Similarly Bolt involves a more prolonged, much more vicious attack leaving more serious injuries.   When I consider provocation, I consider that this starting point ought to be reduced somewhat to reflect the effect that the victim’s behaviour likely had on your mind.   I therefore begin with a starting point of five years three months’ imprisonment on the charge of causing grievous bodily harm.

Previous Convictions

[40]     Your previous convictions confirm the fact that you have a pattern of violent offending and the Court regards repeated violence as unacceptable.  There is to be a small increase as your previous offending is of a very different magnitude to this offence, as Mr Hodge acknowledged. An increase of one month is sufficient. That takes the level of sentence to five years four months’ imprisonment.

Mitigating factors

[41]      Mr Clarke, I now turn to consider what factors relevant to you might lead me to mitigate the sentence that I would otherwise impose.  The positive efforts that you have made towards your own rehabilitation and reintegration into society and which attempt to target some of the reasons for this offending are something which I regard as mitigating. The support you are reported as receiving from your family also reflect positively upon you. Then there is your acknowledgement of the offending, whether through an admission of guilt or expression of remorse, that must be considered.

Remorse

[42]     Mr Clarke, you did not enter a guilty plea to the charge of causing grievous bodily harm and defended that charge at trial.  That was your right and I make no comment about it, except to say that it does not entitle you to the discount that is normally given to those who plead guilty.

[43]     I am, however, able to consider any expressions of remorse you have made for the harm caused to your victim and make some allowance for that: Hessell v R.[12]

I consider that there are expressions of remorse in your case.  As I have said, you returned to the scene quickly, you were responsible for calling an ambulance for Ms Purukamu and the 111 call transcript shows signs of regret for what happened at that early stage.  Remorse is also recorded in your pre-sentence report. Your letter to the Court suggests that you are coming to terms with the full legal responsibility for your acts.  You have expressed culpability and regret for what was done that night. These two things combined justify me in reducing your sentence by three months, making a final sentence of five years one month’s imprisonment.

Related Offence

[12] Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607 at [63]-[64].

[44]     The  drink-driving  offending  needs  also  to  be  addressed.    The  relevant authority for sentencing in this area is Police v Clotworthy.[13] That case sets out ten

[13] Police v Clotworthy (2003) 20 CRNZ 439 (HC).

factors relevant to the imposition of sentencing for such offending.[14]  That case has received the support of the Court of Appeal.[15]  A recent decision of this Court in Edmonds v Police[16] also provides a list of other recent cases applying Clotworthy.  In regard to your offending, you had a level of 115mg per 100ml of blood, which is at a

medium level.  The offending caused serious harm, but that is rightly the subject of the other charge. This is your fourth conviction for drink-driving, the last one having been around ten years ago, though you have convictions for other motor offences prior to 2002.  Finally, you pleaded guilty to this offence at an early stage.  In these circumstances, I consider that given the effluxion of time since your previous offending and the guilty plea, a sentence of three months’ imprisonment should be imposed.

Concurrent or cumulative sentences and the principle of totality

[14] At [20].

[15] R v McQuillan CA 129/04, 12 August 2004 at [20] – [22]; R v Stoves CA 457/04, 24 May 2005 at [35].

[16] Edmonds v Police HC Whangarei CRI 2011-488-000020, 24 March 2011, at [9].

[45]     The Crown has argued that the sentence for the excess blood alcohol charge should be cumulative upon the charge of causing grievous bodily harm.  Mr Hodge is correct in saying that the offences are different in kind, though part of the same series of events: s 84(1).  He is also correct in suggesting that care needs to be taken in  ensuring  that  cumulative  sentences  do  not  lead  to  a  sentence  which  fails  to

recognise the totality of the offending: s 85 and R v Xie.[17]

[17] R v Xie [2007] 2 NZLR 240 (CA) at [16] – [18].

[46]     Mr Wintour has submitted that a cumulative sentence for the excess blood alcohol charge would be altogether too crushing given that the drinking was axiomatic with the other offending and historic offending clearly linked to alcohol and drug addiction.

[47]     Applying the principles referred to in R v Xie and the statutory guidelines in ss 84 and 85, I consider that the sentence of three months’ imprisonment for the blood alcohol charge should be a cumulative sentence with the result that the final

total term of imprisonment becomes five years and four months.

Conclusion

[48]     Mr Clarke, please stand. You are sentenced to a term of imprisonment of five years four months, being five years one month on the charge of causing grievous bodily harm with intent to cause grievous bodily harm and a term of three months’ imprisonment on the excess blood alcohol.   The sentences are to be served cumulatively.    You  are  also  sentenced  to  the  minimum  mandatory  period  of

disqualification from driving, that is one year.

D J White J