The Queen v Clarke - [2007] NZCA 164

IN THE COURT OF APPEAL OF NEW ZEALAND
CA472/06
[2007] NZCA 164
THE QUEEN
v
PETUERA CLARKE
Hearing:18 April 2007

Court:Glazebrook, Randerson and Ronald Young JJ
Counsel:E J Forster for Appellant

K Raftery for Crown

Judgment:30 April 2007 at 3pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Glazebrook J)
Introduction
[1]       Mr Clarke was convicted in the District Court at Napier of wounding with intent to cause grievous bodily harm, injuring with intent to cause grievous bodily harm, assault with a weapon, assaulting a female, threatening to kill and assault. He was sentenced in that Court on 21 November 2006 to eight years imprisonment with a minimum non-parole period of four years.
[2]       Mr Clarke appeals against that sentence on the grounds that there was an error of approach on the part of the sentencing Judge in placing him in band three rather than band two of R v Taueki [2005] 3 NZLR 372 and that the sentence was out of line with other like cases.
The facts
[3]       Mr Clarke’s convictions relate to a series of incidents, which occurred on 10 March 2006 in Flaxmere.
[4]       The first victim was a Mr Apiata. He arrived by car at the house where Mr Clarke and his co-accused, Mr Tihema, were living. Mr Apiata was with his girlfriend Ms Rapana. He parked opposite the house. When he crossed the road and entered the property, he was attacked and knocked to the ground by Mr Clarke and Mr Tihema. After repeatedly jumping on Mr Apiata’s torso, Mr Clarke joined Mr Tihema in kicking Mr Apiata. Mr Clarke then dragged Mr Apiata half way across the road on his back. Mr Tihema dragged him the rest of the way, face down, by his feet. Mr Clarke and Mr Tihema then proceeded to kick Mr Apiata’s body, force him into the back seat of the car and repeatedly slammed the car door on his head.
[5]       During the attack on Mr Apiata, Mr Clarke seized Mr Apiata’s girlfriend, Ms Rapana, by the neck and threatened to kill her.
[6]       A short while later Mr Clarke and Mr Tihema went to Mr La Lone’s house. Mr La Lone was asleep inside. Two of his sisters (aged 16 and 14) answered the door. It appears that there was some sort of demand made for information concerning gang members who might be living nearby and Mr Clarke, who was holding a bottle, suggested that Mr Tihema “bottle” one of the girls. The two girls fled inside and locked the door. Mr La Lone woke up and went outside to see what was going on. He saw Mr Clarke and Mr Tihema in the neighbour’s yard. On seeing Mr La Lone, Mr Clarke and Mr Tihema charged towards him and Mr Clarke struck him on the nose with a bottle. Mr Clarke struck him a second time on the forearm, causing the bottle to shatter and inflict deep lacerations on…

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 The Queen v Clarke

Details

AGLC: The Queen v Clarke [2007] NZCA 164
Case: [2007] NZCA 164
Decision Date: 30 April 2007

CaseChat Overview and Summary

Petuera Clarke was convicted in the District Court at Napier for various violent offences, including wounding with intent to cause grievous bodily harm, injuring with intent to cause grievous bodily harm, assault with a weapon, assaulting a female, threatening to kill, and assault. Clarke was sentenced to eight years imprisonment with a minimum non-parole period of four years. Clarke appealed against his sentence, arguing that there was an error in the sentencing Judge's approach in placing him in band three rather than band two of R v Taueki and that the sentence was out of line with other similar cases. The legal issues before the court were whether there was an error in the sentencing approach and whether the sentence was manifestly excessive.

The court found that Clarke's argument that the sentence was manifestly excessive was not tenable. The court noted that the starting point for the offending against Mr La Lone should be in the mid-range of band two of Taueki, and that an allowance for multiple offending would result in a starting point of nine years. The court also found that the one-year deduction for Clarke's youth was appropriate given his prior convictions and high risk of re-offending. The court concluded that the sentence reached the eight years imposed by the Judge, which was well within the range available to the Judge and could even be described as lenient.

The appeal was dismissed, and Clarke's sentence was upheld.

Orders