CLARKE v R [2021] NZCA 96

CLARKE v R [2021] NZCA 96 [29 March 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA400/2020[2021] NZCA 96BETWEEN PETER TAMIHANA CLARKEAppellantAND THE QUEENRespondentHearing: 23 February 2021Court: Brown, Katz and Edwards JJCounsel: G D Prentice for AppellantM H Cooke for RespondentJudgment: 29 March 2021 at 10.30 amJUDGMENT OF THE COURTA The application for an extension of time to bring the appeal is granted.B The application for leave to adduce fresh evidence is granted.C The appeal against sentence is allowed.D The sentence of 10 years and two months' imprisonment is quashed anda sentence of nine years and two months' imprisonment is substituted.E The minimum period of imprisonment is quashed.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)[1] Peter Clarke was found guilty by a jury of two counts of sexual violationby rape,1 two counts of sexual violation by unlawful sexual connection,2 and onecount of injuring with intent to injure.3 He was sentenced by Judge M A MacKenzieto 10 years and two months' imprisonment with a minimum period of imprisonment(MPI) of five years.4[2] Mr Clarke now appeals his sentence on the basis that it is manifestly excessive.The issues raised by Mr Clarke's appeal are:(a) whether the sentence starting point adopted by the Judge (10 years andsix months' imprisonment) was too high;(b) whether a discount should be given for personal and cultural factorsidentified in a report prepared (subsequent to sentencing) under s 27 ofthe Sentencing Act 2002; and(c) whether an MPI should have been imposed.Extension of time to appeal[3] Mr Clarke's appeal is brought 16 months out of time. Although this is alengthy delay, it has been adequately explained. The Crown has suffered no prejudiceand did not oppose an extension of time for filing the appeal. We consider that it is inthe interests of justice to grant the extension sought and order accordingly.1 Crimes Act 1961, s 128(1)(a).2 Section 128(1)(b).3 Section 189(2).4 R v Clarke [2019] NZDC 3289.The offending[4] Mr Clarke's offending was against his former partner. Although Mr Clarke andthe victim were no longer a couple, they occasionally socialised together.[5] On the day of the offending, Mr Clarke sought the victim's support in respectof a bereavement. They socialised together and drank some alcohol. An argumenttook place and the victim went home at around midnight. She had previouslytrespassed Mr Clarke from her home. Despite this, Mr Clarke went to the victim'shome in the early hours of the morning and asked her to go with him to a nearby laketo collect watercress. She agreed.[6] Instead of driving to the lake, however, Mr Clarke drove the victim toa secluded location. He then forced the victim out of the vehicle. He digitallypenetrated her vagina, performed oral sex upon her and raped her twice. Violence wasinvolved, including Mr Clarke punching the victim in the face, knocking herunconscious and causing her nose to bleed.District Court sentencing[7] Judge Mackenzie identified the aggravating features of the offending as:5(a) the moderate degree of premeditation in taking the victim to a secludedlocation;(b) the vulnerability of the victim being trapped at that location;(c) the violence associated with the offending;6 and(d) the scale of the offending.5 At [12].6 The Judge considered this an aggravating factor of the sexual offending rather than applying anuplift in respect of the conviction for injuring with intent to injure.[8] The Judge applied R v AM (CA27/2009), the tariff case for sexual offending.7Mr Clarke's offending was assessed as being within rape band two (seven to 13 years'imprisonment). Having regard to the cases of Archer v R,8 Dunick v R,9 andRitebono v R,10 the Judge considered that the appropriate starting point was 10 yearsand six months' imprisonment.11[9] No uplift was applied in respect of Mr Clarke's prior convictions.12A four-month discount was applied to reflect the time that Mr Clarke had spent onelectronically monitored bail.13[10] The final sentence imposed was 10 years and two months' imprisonment.14The Judge also imposed an MPI of five years.15 This was to recognise the variety ofsexual offending involved in the incident, and Mr Clarke's hostility towards the victimand desire to shift the blame onto her, as recorded in the pre-sentence report.16[11] Due to a misunderstanding on the part of counsel, a cultural report under s 27of the Sentencing Act was not available at sentencing. Counsel for Mr Clarke hadfiled a memorandum on 8 November 2018 seeking an adjournment of the sentencingdate on the basis that:1.3 The writer has obtained instructions from the defendant that he DOESseek a cultural report be prepared for the Court for sentence.2.1 This means that sentencing will need to be further deferred for thepreparation of this report.2.2 The writer respectfully requests a Court direction that a pre-sentencesection 27 Report be prepared.2.3 The writer further requests sentencing be administratively adjournedto accommodate the preparation of the report.7 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.8 Archer v R [2018] NZCA 331.9 Dunick v R [2008] NZCA 482.10 Ritebono v R [2018] NZCA 598.11 R v Clarke, above n 4, at [23].12 At [25].13 At [26].14 At [29].15 At [37].16 At [36].[12] As requested, the sentencing date was administratively adjourned.Unfortunately, counsel for Mr Clarke erroneously believed that the Court wouldarrange for the preparation of a s 27 report, not realising it was the responsibility ofdefence counsel to organise such a report. Accordingly, by the time of the newsentencing date, no s 27 report had been prepared. Mr Clarke nevertheless wanted toproceed with sentencing. The Judge recorded the situation in her sentencing notes asfollows:[27] I do want to say something now about a s 27 cultural report. I hadinquired as to whether Mr Clarke wished to consider obtaining a s 27 culturalreport. There is no report available to the Court today. It seems that is becauseof a misapprehension or misunderstanding about how that report might comebefore the Court. There is no jurisdiction for the Court to direct a report. It isfor a defendant to obtain that report and it would seem that that was perhapsnot understood. I indicated to Mr Rickard-Simms that I was prepared toadjourn sentencing for the obtaining of such a report if Mr Clarke consideredthat he was prejudiced by the lack of report. Mr Rickard-Simms has firminstructions from Mr Clarke that he wished sentencing to proceed andMr Clarke is certainly clear about that. He indicated that to me himself. Thatis because Mr Clarke wishes to appeal his conviction apparently on groundsrelating to counsel conduct at trial. That is entirely a matter for Mr Clarkeonce sentencing has been finalised.[28] The reason I am recording this is to set out what the position was inrespect of a s 27 report and why it is not a feature in terms of sentencing today.It needs to be clear that the offer to adjourn sentencing for that purpose wasrejected.Should the s 27 cultural report (prepared after sentencing) be admitted?[13] A s 27 report was prepared post-sentencing and Mr Clarke applies for it to beadmitted for the purposes of his appeal.[14] This Court has previously observed that in general s 27 reports should not besubmitted for the first time on appeal.17 That remains the general principle. In thiscase it would obviously have been preferable if Mr Clarke's s 27 report had beenavailable to the Judge at the time of sentencing. It is clear, however, that Mr Clarke'sfirm instructions to counsel prior to sentencing were that he wanted a s 27 report to beprepared. The sole reason this did not occur in time for the adjourned sentencing datewas due to a misunderstanding on the part of Mr Clarke's then counsel. With thebenefit of hindsight, Mr Clarke no doubt realises that he should have taken up the17 Carroll v R [2019] NZCA 172 at [8].Judge's offer of a further adjournment. At the time, however, he was clearly focusedon a possible conviction appeal (which was not ultimately pursued) and did notappreciate the potential significance of not obtaining a s 27 report.[15] The Crown did not oppose admission of the s 27 report, noting that the contentis cogent (despite not being fresh) and that trial counsel appeared to mistakenly believethat the Court would order the report.[16] We have reviewed the s 27 report. It contains information that is clearlyrelevant to Mr Clarke's appeal and which would likely impact on his end sentence.We have accordingly concluded that, given the somewhat unusual backgroundcircumstances we have outlined, it is in the interests of justice to admit the report.Was the sentence starting point too high?[17] The first issue we must consider is whether the starting point adopted by theJudge was too high.[18] It was common ground in both the District Court and this Court that theoffending falls within rape band two of R v AM (CA27/2009) (seven to 13 years'imprisonment). Counsel differed, however, as to where in that band the starting pointshould fall.[19] Mr Prentice submitted that the Judge's starting point of 10 years and sixmonths' imprisonment was too high. He submitted that the offending falls just belowthe middle of band two and that the appropriate starting point was therefore betweennine and nine and a half years.[20] The Crown submitted that the ten and a half year starting point selected by theJudge was within range, and that Archer and Ritebono were correctly relied upon bythe Judge in setting that starting point.[21] In R v AM (CA27/2009), this Court described rape band two as follows:18By comparison with rape band one, this band is appropriate for a scale ofoffending and levels of violence and premeditation which are, in relativeterms, moderate. This band covers offending involving a vulnerable victim,or an offender acting in concert with others or some additional violence. It isappropriate for cases which involve two or three of the factors increasingculpability to a moderate degree.[22] The Judge recognised four aggravating factors of Mr Clarke's offending, as setout at [7] above (moderate degree of premeditation, vulnerability of victim trapped atthe location, violence, and scale of the offending). We agree with her Honour'sassessment of those factors, although we would put the most weight on the first three.[23] Mr Prentice referred to R v Toru as a case which was far more serious than thiscase.19 In Toru, Dobson J adopted a starting point of 11 and a half years for twoconvictions for rape.20 His Honour treated the accompanying violence, sexualviolence and kidnapping convictions as part of that course of conduct.21 The presentcase involved a lesser degree of violation and detention. The 10 and a half year startingpoint imposed by Judge Mackenzie, however, reflected that.[24] The appellant also relied on Henry v R.22 In that case the offender wassentenced for violent offending against his partner in May 2013 (kicking her with steelcapped boots) and sexual and violent offending in September 2013 (punching thevictim's vagina three times, digitally penetrating her, raping her and attempting topenetrate her anus).23 The Judge took a global starting point of 10 years'imprisonment, which he then uplifted by six months (taking into account totality) inrespect of a separate charge of attempting to pervert the course of justice.24[25] Mr Prentice submitted that the starting point in this case should have beenlower than in Henry, because the injuring charge in this case is less serious, and all ofthe offending occurred in one event, rather than two. We accept the Crown18 R v AM (CA27/2009), above n 7, at [98].19 R v Toru [2018] NZHC 1598.20 At [16].21 At [13].22 Henry v R [2019] NZCA 407.23 At [6]–[13].24 At [35].submission, however, that Mr Clarke's culpability is broadly comparable to that ofMr Henry, given that Henry did not involve the same degree of premeditation andvictim vulnerability as this case.[26] We also accept the Crown submission that the starting point should be abovethe nine-year starting point adopted in Archer v R.25 In Archer, the offender wassentenced for sexual offending against his de facto partner occurring in theirbedroom.26 That case lacks the element of premeditation present here, whereMr Clarke used false pretences to persuade the victim to go with him, then took her toa secluded location before offending against her. Mr Clarke was also more violentthan the offender in Archer, and was convicted of two counts of rape as opposed toone.[27] With reference to the aggravating features of Mr Clarke's offending, theguideline case of R v AM (27/2009), and the various cases referred to by counsel, it isour view that the Judge's starting point of 10 and a half years' imprisonment waswithin range. While the starting point may have been towards the upper end of theavailable range, it was not outside of it.Is a discount for Mr Clarke's personal circumstances appropriate?[28] We do not propose to set out the content of the s 27 report (much of which isvery personal) in detail. We note, however, that the report indicates that Mr Clarkehas had a disadvantaged life from an early age, including limited education. He wasexposed to intergenerational and family violence as a child and was himself a victimof such violence.[29] The s 27 report also details steps Mr Clarke has taken towards rehabilitation.Mr Clarke is currently a groundsman at Tongariro prison. He is participating in theAdult Literacy and Numeracy programme where he has achieved his level 3 certificateand is working towards his level 4 certificate. He is also open to counselling to help25 Archer v R, above n 8, at [17].26 At [3].him work through his issues with anger and any potential mental unwellness causedby untreated childhood trauma.[30] The Crown noted that these positive rehabilitative indications may well nothave been available if the s 27 report had been prepared prior to sentencing(as it should have been). Nevertheless, that material is now before us, it is relevant,and it is in the interests of justice to take it into account.[31] In Solicitor-General v Heta, Whata J commented that:27The evidence of the presence of systemic deprivation (or social disadvantagemore generally) on an offender need not be elaborate. The symptoms ofsystemic Māori deprivation are reasonably self-evident, including (amongother things) intergenerational social and cultural dislocation of the whānau,poverty, alcohol and or drug abuse by whānau members and by the offenderfrom an early age, whānau unemployment and educational underachievement,and violence in the home.[32] More recently, in Zhang v R, this Court observed that:28[159] First, ingrained, systemic poverty resulting from loss of land,language, culture, rangatiratanga, mana and dignity are matters that may beregarded in a proper case to have impaired choice and diminished moralculpability. Where these constraints are shown to contribute causatively tooffending (whether associated with addiction or not), they will requireconsideration in sentencing.(Footnote omitted.)[33] As this Court observed in Carr v R, recognition of a causal linkage betweenmatters relied on in a s 27 report and the offending does not require the Court to besatisfied the matters are the proximate cause of the offending.29[34] In this case, we consider that the s 27 report identifies a number of aspects ofMr Clarke's background and personal circumstances that have likely impaired his27 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [50].28 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648, citing Solicitor-General v Heta, above n 28,at [50]; Fane v R [2015] NZCA 561 at [46]; and Arona v R [2018] NZCA 427 at [59].29 Carr v R [2020] NZCA 357 at [64].choices and diminished his moral culpability, as referred to in Zhang. We are thereforesatisfied that the necessary causative link exists.[35] In our view, Mr Clarke's background circumstances and rehabilitativeprospects, as summarised above, warrant a further sentence discount of 10 per cent.That reduces the sentence to nine years and two months' imprisonment.Did the Judge err in imposing a minimum period of imprisonment?[36] Finally, we consider whether the Judge erred in imposing an MPI.[37] Mr Prentice submitted that an MPI should not have been imposed. The Crownsubmitted that the Judge did not err in imposing an MPI, based on the informationbefore her. However, the Crown acknowledged that if the s 27 report had been beforeJudge Mackenzie, it is possible that she would have reached a different conclusion.[38] We accept the Crown submission. In our view the principles of accountability,denunciation, deterrence and protection do not require the imposition of an MPI inlight of the information now available (as set out in the s 27 report).30 Rather,Mr Clarke's rehabilitation should be the primary focus. His efforts in that regard(including the steps he is taking to address both his anger issues and his past trauma)should be encouraged and incentivised. This will best be achieved by removing hisMPI, leaving it to the Parole Board to monitor and assess his rehabilitation efforts atthe appropriate time.Result[39] The application for an extension of time to bring the appeal is granted.[40] The application to adduce the s 27 report as fresh evidence on appeal is granted.[41] The appeal is allowed.30 See Sentencing Act 2002, s 86(2).[42] We quash the sentence of 10 years and two months' imprisonment andsubstitute a sentence of nine years and two months' imprisonment.[43] The MPI imposed in the District Court is quashed.Solicitors:Crown Law Office, Wellington for Respondent