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…

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 [2006] NZCA 113
Case: [2006] NZCA 113
Decision Date: 6 June 2006

CaseChat Overview and Summary

The case involved Gary Clarke, who appealed against the sentence imposed on him by the District Court at Wanganui. Clarke was sentenced to an effective term of two years and nine months imprisonment, resulting from a combination of cumulative sentences for multiple violent offences against a female victim. The appellant faced numerous charges including possession of an offensive weapon, assaulting a woman using the weapon, and threatening to kill her or cause grievous bodily harm. The court examined the legal issues presented by the appellant's counsel, which included the absence of a victim impact statement, the imposition of cumulative sentences, and the suggestion that the Wanganui Court was deliberately chosen for sentencing. The court found that the cumulative sentences were justified, and the overall sentence was not manifestly excessive, taking into account the severity of the offences, the appellant's criminal history, and his breach of protection orders and assaulting his victim while on bail. The appeal against the sentence was dismissed.

The court's reasoning focused on the nature of the offences and the appellant's history of violence against the same victim. The court held that cumulative sentences were appropriate in this case as the offences were different in kind, despite occurring at different times and locations. The court also emphasised that the totality principle does not operate as a discount for bulk offending. The court found that the absence of a victim impact statement did not assist the appellant, as reasonable efforts were made to locate the victim, and the Judge's observation regarding the use of the Wanganui District Court for sentencing did not imply an increased likelihood of harsher penalties. The court concluded that the sentence, while stern, was within the range available to the sentencing Judge, and that it had not been shown that the sentence was manifestly excessive or that the Judge had approached the sentencing task inappropriately.

Orders