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 Mr La Lone’s arm.  These required surgery and resulted in Mr La Lone partially losing the use of his hand.  Mr La Lone’s sisters then dragged their brother inside and locked the door.

[7]       Following the attack on Mr La Lone, Mr Clarke and Mr Tihema continued on to other locations where further assaults were alleged to have taken place.  From these further incidents, Mr Clarke was convicted to two counts of assault with a weapon and one count of common assault, each upon a separate victim.  In all, therefore, Mr Clarke offended against six people that night.

Sentencing remarks

[8]       The sentencing Judge, Judge Adeane, took the count of wounding Mr La Lone with intent to cause grievous bodily harm as the lead sentence.  He identified the following aggravating factors; extreme violence, the seriousness of the resulting injury, the use of a weapon, the presence of multiple attackers and an element of home invasion in that Mr Clarke and Mr Tihema were on Mr La Lone’s residential property and had to be shut out of the house by his younger sisters. The Judge said that there was also a proper basis upon which to hold that premeditation was present, given the very clear indication that these men had set out upon a rampage of violent behaviour after the initial attack on Mr Apiata. There were thus six aggravating factors present in the complaint made by Mr La Lone.

[9]       As far as Mr Apiata was concerned, the Judge noted the prolonged attack on him by two offenders, apparently after he had lost consciousness, and considered that demonstrated extreme violence and premeditation.  Serious injury was not present, although he accepted the Crown’s submission that this was entirely fortuitous.  There were also multiple attackers.  This meant that there were three or possibly four aggravating factors in the case of the attack on Mr Apiata.

[10]     The Judge said that none of the further attacks in isolation were as serious as the attacks on Mr La Lone and Mr Apiata. However, all of the attacks, taken together, entirely justified the description of a rampage of violence (and through a residential area).  The violence was entirely indiscriminate. None of the victims had done anything to provoke it and it remained, even at sentencing, unexplained.

[11]     The Judge held that this brought the offending into band three of Taueki, albeit at the bottom, with a starting point of nine years.  The Judge noted that there was no credit to be had for guilty pleas, acknowledgement or remorse. The Judge, however, gave an allowance of one year for Mr Clarke’s youth. Mr Clarke was 19 years of age (soon to be 20) at the time of the offences. He had previous convictions for various offences including assault and possession of unlawful weapons but nothing in the present category.  The Judge also noted the probation report which described Mr Clarke as being a neglected individual, who shows no remorse for his offending, who has low motivation to do anything about his situation and who is assessed as presenting a high risk of further offending.

Appropriate sentence

[12]     Although Mr Forster, on behalf of Mr Clarke, made a number of criticisms of the sentencing Judge’s approach, the issue is whether the resulting sentence was manifestly excessive.

[13]     Mr Forster conceded that the starting point for the offending against Mr La Lone, taken alone, should be in the mid range of band two of Taueki.  He pointed to [39](a) of that case which states:

Concerted street attack:  For a street attack in which a victim is set upon by a group of attackers in an attack involving the use of weapons found at the scene, a starting point at the lower end of band two would be indicated.  If the attack involves blows to the head or other serious injuries are caused, or there is premeditation, then a starting point higher in the band two spectrum would be required.

[14]     Band two of Taueki provides a range of five to ten years imprisonment.  The mid-point therefore would be around seven years.  Mr Forster also conceded that what the Judge described as a rampage of violence on the evening would justify adding an allowance for multiple offending.  Adding two years to the starting point (which we consider conservative given the mindless nature of the offending, the number of victims and the level of violence involved, particularly in the attacks against Mr La Lone and Mr Apiata) would result in the nine years used by the Judge.

[15]     Mr Forster further conceded that the one year deduction for Mr Clarke’s youth was appropriate given his prior convictions.  Again we note that this may have been a generous allowance. Mr Clarke was not in the first flush of youth.  He also had numerous prior convictions, had been in prison before (and very recently) and was assessed as being at a high risk of re-offending. Rehabilitative prospects are thus not high.

[16]     On the concessions quite properly made by Mr Forster, the sentence reaches the eight years which was imposed by the Judge.  In no way can this be described as manifestly excessive.  Indeed it was well within the range available to the Judge and could even be described as lenient.

Result

[17]     The appeal is dismissed.

Solicitors:
Meredith Connell, Auckland
Crown Law Office, Wellington