The Queen v Clarke

[2006] NZCA 113

IN THE COURT OF APPEAL OF NEW ZEALAND

CA128/06

THE QUEEN

v

GARY CLARKE

Hearing:29 May 2006

Court:O'Regan, John Hansen and Gendall JJ

Counsel:N J Farquhar for Appellant

C L Mander for Crown

Judgment:6 June 2006 

JUDGMENT OF THE COURT

APPEAL AGAINST SENTENCE IS DISMISSED.

____________________________________________________________________

REASONS

(Given by Gendall J)

[1]       This is an appeal against an effective sentence of two years nine months imprisonment imposed in the District Court at Wanganui on 20 February 2006 arising out of a combination of cumulative sentences for violent offences against a female victim.

Background

[2]       The appellant faced a number of charges arising out of events in December 2003.  These were possession of an offensive weapon, a knife, in circumstances that showed an intention to use it to commit an offence involving bodily injury or the threat of fear or violence;  assaulting a woman using the knife as a weapon and threatening to kill her or do grievous bodily harm.  Concurrent terms of imprisonment of one year six months were imposed.  On a later charge of assaulting the same female, on a separate date, the appellant was sentenced to a cumulative term of 15 months imprisonment.  He had also been convicted of trespass and breach of bail for which he was sentenced to one month’s imprisonment on each charge to be concurrent with the other sentences.  On a charge of wilful damage he was convicted and discharged. 

[3]       The first group of charges arose out of events which occurred on the West Coast on 28 December 2003.  The victim was the appellant’s partner.  He pleaded not guilty and elected trial.  The complainant gave oral evidence at the preliminary hearing and the appellant was committed for trial in the Greymouth District Court on 22 December 2004.  He failed to appear and a warrant for his arrest was issued.  The complainant was then living in Otaki.  On 31 December 2004 the appellant assaulted the same complainant at her home in Otaki, in similar circumstances.  It is unclear whether they had reconciled.  Earlier the victim had obtained a domestic protection order in about June 2004.  The probability is that the appellant sought out his former partner and resumed living with her for a short period.  According to the police summary of facts when she told him that the relationship was ended he proceeded to violently assault her by punching her about the head and face, pulling hair from her head, threatening to stab her with a knife that he had obtained from the kitchen, and pushed a beer can into her face.  Later that day, he renewed the violence, and proceeded to punch her about the jaw and mouth and threatening to stab her whilst holding a knife. 

[4]       The appellant was granted bail but subsequently failed to appear in the Levin District Court.  A further warrant was issued for his arrest and eventually he was located.  He then entered guilty pleas to the original charges arising out of the West Coast incident, as well as the charge of assaulting a female following upon the events of 31 December 2004. 

District Court Sentence

[5]       The District Court Judge set out the facts in his sentencing notes as follows:

In respect of 28 December 2003 you were intoxicated, you picked up a knife which had a 14cm blade and a 27cm wooden handle, entered the dining area and had an argument with your ex partner who at that time was with her nine year old daughter.  You stabbed the wall at least three times causing knife holes in the wall.  You made threats to her.  You said, “I should just cut your throat”.  You pushed the victim up against the hallway and held her there by placing your right hand on her chest and with your left hand raised the knife above her head with the blade facing the victim and said, “I should just cut your throat”.  You stabbed the wall immediately above the victim’s head.  The victim left the premises and the police arrived.  At that stage you refused to offer any explanation.

[6]       The events at the Otaki address included punching and slapping the woman about the head and face and a knife was obtained from the kitchen.  The Judge described the event as follows:

As a further exercise of your domination over the complainant upon two occasions using similar tactics, pushing against the wall, the holding, the use of the knife and threatening, a further indicator of your domination, you then stomped on her sunglasses and foot and shoved a beer can into her face.  She fled and sought assistance.  She eventually returned to the home where you again started punching her, punching her in the jaw and mouth and smashing items in the roo, again repeating the threats.  As a result of the attack the summary provides she suffered bruising, cuts to her face and tongue, as well as hair loss and swelling to her head and foot.

[7]       The Judge went on to say:

[6]       Quite clearly the second offending is of graver consequence in my view but it has a lesser maximum in view of the way in which matters have proceeded.  At that stage you were on bail, the violence is at a greater level and again places little value upon the person whom you attacked, abused and threatened.

[8]       The Judge referred to ss 7 and 31(4) Sentencing Act 2002 and observed that the second group of offending obviously occurred when the appellant was on bail, and he took into account the guilty pleas.  A victim impact statement was not then available because the complainant had disappeared and the police had been unable to locate her.  That remains the case.

Submissions

[9]       Counsel for the appellant relied on three propositions when submitting that the sentences were manifestly excessive and inappropriate.  First, that the absence of a victim impact statement concerning the complainant deprived the Court of her views, with the absence of such information, being prejudicial to the appellant.  Secondly, counsel submitted the Judge erred in imposing cumulative sentences because although the offending was separated by a period of one year it was a similar type of violent offending involving the same victim and having the same essential foundations, namely a stressful relationship and alcohol.  Thirdly, counsel submitted that the Judge’s sentencing remarks implied that the Wanganui Court had been deliberately selected by the appellant for sentencing, so as to obtain some advantage to him.  What the Judge said was:

It is not for me to comment on the trail of destruction through the courts to get it to the Wanganui Court for sentence, but if it should be that prisoners are selecting Wanganui Courts for their preferred sentencing court, once that issue becomes aware no doubt the administration will need to take some steps if that is the position.  I mention that because this is the third such occasion this year, and we are only into February, where such an occurrence has occurred. 

Counsel submitted that a harsher penalty than might otherwise have been imposed was likely so as to “send a message” to others who might select Wanganui Courts as the preferred court for sentencing.  In fact the sentencing took place in Wanganui for reasons which had nothing to do with any choice by the appellant.

[10]     Finally, counsel submitted that the appellant had expressed remorse, there was no premeditation to his offending, which was fuelled by alcohol abuse for which counselling was required to assist his rehabilitation and reintegration in terms of s 7(1)(h) Sentencing Act 2002.

Discussion

[11]     The assaults, use of knives, offences of violence, and threatened violence, were serious and perpetrated against a vulnerable woman.  Counsel acknowledged that the offending was serious.  The attacks upon the woman were almost one year apart, the second occurring after the appellant had fled and not appeared for trial.  He was not only on bail, but his victim was the primary Crown witness in respect of the charges for which he was awaiting trial. 

[12]     He had 34 previous convictions including two for contravening protection orders in March and May of 2001.  There existed multiple convictions for driving with excess breath alcohol and convictions for common assault and assault on the police in 1987 and 1989.  Imprisonment was inevitable for the multiple offending and the only issue was whether the effective sentence viewed, as against the total culpability was manifestly excessive.

[13]     Section 84 of the Sentencing Act 2002 provides that:

Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.

Subsection (3) provides:

In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider –

(a)the time at which they occurred;  or

(b)the overall nature of the offending;  or

(c)   any other relationship between the offences that the court considers relevant.

[14]     Cumulative sentences for the acts of violence inflicted upon the victim were fully justified.  Those who inflict serious violence upon females, whether partners or not, at different times and different places cannot expect as a general course for sentences of imprisonment to be concurrent.  A “concession” for multiple offending cannot be expected by such offenders.  In addition, it may be a proper ground for making a sentence cumulative if it was committed after the grant of bail;  see R v Wallace [1983] NZLR 758 (CA) and R v Young [1973] Crim LR 585.  Of course, the totality principle requires that the effective sentence not be out of proportion to the overall culpability of the offender but established authority is clear that the totality principle is not a discount for bulk offending;  R v Lucky (1974) 12 SASR 136; R v Knight (1981) 26 SASR 573; R v Goodhew CA128/81 16 November 1981.

[15]     We do not accept the submission of the appellant’s counsel that concurrent sentences were appropriate for the serious separate assaults, on both occasions accompanied by possession of a knife.  Of course, the offences were of a similar kind against the same victim.  But they were not otherwise connected, whether in time or location.  In this present case the Judge was perfectly entitled to impose cumulative sentences and the only issue is whether on a totality basis the sentence of two years nine months imprisonment was manifestly excessive.

[16]     We do not regard the absence of the victim impact report as assisting the appellant.  It is purely speculative as to whether such, whatever it might have contained, would assist him.  It is clear reasonable efforts were made by the police to locate the victim.  Likewise, the Judge’s observation as to the use of the Wanganui District Court for sentencing was directed to the administration of the Courts, and the sentencing process, rather than as signalling a pattern whereby increased sentences are to be imposed in that District Court.  We do not see this as assisting the appellant.

[17]     The overall sentence of two years nine months was stern, and at the high end of the range.  Yet, the aggravating features involved in the offending included the use or presence of a weapon, the degree of violence especially on the second occasion, the fact that the appellant was on bail on the second occasion and that his victim was a Crown witness.  The events of December 2004 were particularly serious, involving a prolonged and brutal attack upon the complainant.  They could well have justified, on their own, a sentence of 18 months imprisonment.  Although the maximum penalty for the crime of male assaulting a female is two years imprisonment, the past history of the appellant, his propensity for violence, breach of protection orders and assaulting his victim whilst on bail for offences against her, could well have justified that length of sentence of imprisonment.  The aggravating features personal to the appellant included his lamentable criminal offending history including assault convictions.  The Judge acknowledged the pleas of guilty and whilst the precise allowance given for these is not discretely identified, based upon what could well have been justified, namely two years imprisonment for the first offending, and 18 months imprisonment for the later crime, a discount or concession of nine months, or 20% would have resulted.

[18]     Stern as the sentence was, given the proper imposition of cumulative sentences, it was not beyond the range available to the sentencing Judge.

[19]     It has not been shown that the sentence was manifestly excessive or the Judge approached the sentencing task in an inappropriate way.  Accordingly the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington