R v CLARKE [2020] NZHC 288

R v CLARKE [2020] NZHC 288 [27 February 2020]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2019-019-000578[2020] NZHC 288THE QUEENvDERRINGER SETH CLARKEHearing: 27 February 2020Counsel: RRL Guthrie for CrownME Goodwin for Defendant (by AVL)Judgment: 27 February 2020SENTENCING REMARKS OF DOWNS JSolicitors/Counsel:Crown Solicitor, Hamilton.ME Goodwin, Auckland.[1] Mr Clarke, you are for sentence on a charge of causing grievous bodily harmwith reckless disregard for the victim's safety. The maximum penalty is seven years'imprisonment. The offence is serious. It typically results in prison.[2] The facts are simple, but distressing. On 31 December 2018, you were livingin a garage at the family home. That morning, you were on a ramp which led to thekitchen. The victim, Mrs Patricia Linburg, confronted you. She was 86. Mrs Linburgdid not want you inside the home. You were not allowed inside. She told yourepeatedly to leave. You did not. You belittled her. Mrs Linburg attempted to removeyou by pushing and "hitting out". You then pushed Mrs Linburg to the chest with bothhands. In short, you shoved her. Mrs Linburg fell to the kitchen floor. She broke herright leg. This required hospitalisation—and surgery. Mrs Linburg's conditiondeteriorated. She died 6 January 2019.[3] You were charged with manslaughter. On 12 November 2019, the Crownamended the charge to the one you now face. You pleaded guilty immediately. So, Imust sentence you for pushing Mrs Linburg to the ground, thereby breaking her leg. Iam not sentencing you for causing Mrs Linburg's death because you are not criminallyresponsible for this.[4] Mrs Linburg was the mother of your stepfather. Unsurprisingly, he and otherfamily members are greatly distressed by what happened to her. I acknowledge theirpresence and their distress. Your offending has caused the victim's family great upsetand strain.[5] The Crown and your lawyer have asked me to consider several cases whichthey say provide guidance about the starting point—the penalty before things thatmake your offending less serious are considered. My written sentencing remarks willcapture these in a footnote. It is enough to observe none of the cases is much likeyours.11 Hepi v Police [2013] NZHC 2690, McDonald v Police [2012] NZHC 1767, Brooking v Police[2012] NZHC 3219, Matthews v Police [2017] NZHC 2379, R v Rihia [2016] NZCA 90, andHepi v Police [2014] NZHC 3180.[6] The Crown submits your offending requires a starting point "in the region of"two years' imprisonment. Mr Goodwin argues for a lesser starting point between12 and 15 months' imprisonment. The correct approach lies between these competingfigures. I adopt 18 months' imprisonment. This recognises Mrs Linburg's age, hervulnerability and the very painful injury you inflicted by shoving her to the ground.These features aggravate, meaning make worse, your offending.[7] I have read your pre-sentence report. The report was prepared by a probationofficer. I have also read a report prepared for your lawyer by Sabine Visser, a clinicalpsychologist. Both recommend a sentence other than imprisonment. Both stress yourage—you are 20—and your prospect of rehabilitation. This is your first—and I hopelast—criminal offence. I will say more about this soon.[8] I have also read a report in relation to the restorative justice conference youattended with Wayne Linburg, the victim's son, and Julienne Dickey, the victim'ssister. This report, and the others I spoke of, commend apparent remorse.[9] Mr Goodwin says I should reduce the starting point of 18 months'imprisonment because of your age, your prospect of rehabilitation, and remorse. Ireduce the starting point by 15 percent for the first two features. I note you contactedthe Man Alive anger management programme and have since attended two sessions.[10] However, I make no allowance for remorse. Discrete allowance for this featureis exceptional. Remorse is normally captured by the credit for a prompt guilty plea. Iwill say more about this shortly. And, you told both the probation officer andMs Visser you grabbed Mrs Linburg's arm and did not mean for her to fall. Thisaccount contradicts the summary of facts you agreed in relation to your guilty plea.You shoved Mrs Linburg to the chest with both hands. You were reckless about hersafety. You must accept these features. They lie at the heart of your culpability forthis crime.[11] Mr Goodwin says I should discount the sentence by another 10 or 15 percentbecause of what he describes as the "dysfunctional family background". Mr Goodwinsays this was the catalyst for this offence. I do not do so for two reasons. First, I haveno sworn evidence directed specifically at this topic. There are obvious dangers inattempting to recreate, through submission, the subtleties, difficulties and complexitiesof family life. Second, on the material before me, I am not persuaded your culpabilityis reduced by what was happening at home, or Mrs Linburg's actions toward you. Youbelittled her before shoving her. She was elderly and vulnerable. You knew thesethings.[12] The Crown and Mr Goodwin agree I should further discount the starting pointby 25 percent because of your guilty plea. I do so. You pleaded guilty immediatelyto the amended charge. This spared the family of the need for a trial. And saved thetaxpayer the cost of one.[13] This produces a notional sentence of approximately 11 months' imprisonment.It raises the question of whether I should impose home detention rather than imprisonyou. As I said at the beginning, an offence of this nature typically results in prison,and for good reason. This is a serious crime—something I have tried to impress onyou. However, I am satisfied prison would be the wrong response in this case. I reachthis conclusion because of the following combination. I stress it is the combinationthat is important.[14] First, you are young. Second, there is a good prospect of your rehabilitation.Prison might compromise this, to your detriment and that of the community. Third,the violence you used is less than that often seen for this type of offence. To be clear,your violence was serious. My point is that it is less serious than is often the casewhen this offence is charged. Fourth, Mrs Linburg's family appear to acknowledgethe utility of a sentence other than prison. Fifth, so too the Crown. Had this been amanslaughter charge, the outcome might well have been different. It is likely youwould have gone to prison.[15] Mr Goodwin argues community detention is the least restrictive outcome, andhence it should be imposed rather than home detention. I disagree. Communitydetention would not capture the seriousness of your offending against an elderly,vulnerable victim. Denunciation is important too.[16] For these reasons, I impose a sentence of six months' home detention. Theconditions of this sentence are in the pre-sentence report I mentioned a little earlier.[17] Mr Goodwin has raised with me that it will take some time for you to travelback to Auckland. For this reason, the sentence will not commence until midday today.[18] A final thing. This offence constitutes your first strike. You are now subjectto the three strikes regime. It is not clear Gault J, the Judge who dealt with you whenyou pleaded guilty, gave you the required warning. I do so now. I also remind youthat if you appear in court again for a serious violent offence you will serve someserious prison time, make no mistake.[19] The warning is this: given your conviction for causing grievous bodily harmwith reckless disregard you are now subject to the three strikes law. I give you awarning of the consequences of another serious violence conviction. You will also begiven a written notice outlining these consequences. If you are convicted of anyserious violent offences, other than murder, committed after this warning, and if aJudge imposes a sentence of imprisonment then you will serve that sentence withoutparole or early release. If you are convicted of murder committed after this warning,then you must be sentenced to life imprisonment. That will be served without paroleunless it would be manifestly unjust. In that event, the Judge must sentence you to aminimum term of imprisonment.[20] The point I wish to emphasise is this: you have been fortunate today. You willnot get a second chance.Addendum[21] When I had passed sentence, Mr Goodwin said I wrongly referred to the victimbreaking her leg. The agreed summary of facts says the victim broke her "femur".The femur is the longest bone in the leg...Downs J