CLARKE v R [2021] NZCA 151

CLARKE v R [2021] NZCA 151 [3 May 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA31/2019[2021] NZCA 151BETWEEN WHAKAPUMAUTANGA CLARKEAppellantAND THE QUEENRespondentHearing: 17 March 2021Court: Clifford, Brewer and Dunningham JJCounsel: J D Munro and J N Olsen for AppellantM J Lillico for RespondentJudgment: 3 May 2021 at 3.00 pmJUDGMENT OF THE COURTA The applications for an extension of time to appeal, and to adduce freshevidence, are granted.B The appeal against conviction and sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)[1] The appellant, Mr Clarke, appeals his conviction and sentence having beenfound guilty of murder and aggravated robbery following a trial before Katz J and ajury at the High Court in Rotorua. He was sentenced to life imprisonment with aminimum period of imprisonment (MPI) of 17 years.11 R v Chase [2018] NZHC 3332 [Judgment under appeal].[2] Mr Clarke was tried alongside two co-defendants — Mr Chase and Mr Griffin— both of whom were found guilty of aggravated robbery. Mr Griffin was also foundguilty of manslaughter.Applications for extension of time and fresh evidence[3] Mr Clarke commenced an "as-of right" appeal against conviction in 2019,2 butafter changing counsel he subsequently wanted to appeal his sentence also.3That appeal was out of time, so an extension of time is required. He also applies toadduce fresh evidence, namely a cultural report prepared by an alcohol and drugclinician from November 2020, to support his sentence appeal. The Crown does notoppose either of those applications. We accordingly grant both of them.Grounds of appeal[4] The conviction appeal turns on a direction the Judge gave following a juryquestion. Counsel for Mr Clarke, Mr Munro, submits the definition of "likely" givenby the Judge at this juncture "did not accurately reflect the law and permitted the juryto convict Mr Clarke on a lesser, impermissible degree of foresight".[5] The sentence appeal is based on the content of a further s 27 cultural reportprepared by a registered psychologist and drug and alcohol clinician. It is submittedthat, had this report been available at sentencing, the Judge could have concluded itwould be manifestly unjust to impose a MPI of 17 years.4The offending[6] On 20 July 2017, Mr Clarke and his two co-defendants planned to carry out anarmed robbery at the property of the victim, Scott Henry, in order to steal drugs andmoney from him.[7] Prior to the robbery that evening, one of Mr Clarke's two co-defendantscollected three firearms (including a shotgun), and ammunition. The two2 Criminal Procedure Act 2011, s 229.3 Section 244.4 Sentencing Act 2002, s 104.co-defendants then picked up a female associate who knew where the victim lived,and met Mr Clarke at a pre-arranged meeting point.[8] The defendants made a further stop ahead of arriving at the victim's addresswhere they removed their gang patches. When Mr Clarke got back into the car he washolding the shotgun. From this point onwards, all three defendants were aware afirearm was going to be involved in the robbery and Mr Clarke knew that the firearmwas loaded.[9] On arriving at the victim's house, Mr Clarke and his co-defendants confrontedMr Henry's partner. They demanded drugs and money and asked where Mr Henrywas. Mr Henry's partner was made to wait with one of the co-defendants, whileMr Clarke and the other went to find Mr Henry.[10] As they went around the corner, they saw Mr Henry walking towards them.Mr Clarke was between two and five metres away from Mr Henry when he shot himin the chest. One of the defendants then grabbed a bag owned by the victim thatcontained methamphetamine and cash and they left the property. Mr Henry was eitherdead or dying at this point.[11] All three defendants were charged with murder and aggravated robbery.Mr Clarke defended the charge of murder on the basis the shooting was entirelyaccidental and he did not appreciate that the discharge was likely to cause Mr Henry'sdeath. He was found guilty of both aggravated robbery and murder.Appeal against conviction[12] The conviction appeal turns on a direction on murderous intent under s 167(d)of the Crimes Act 1961, which was given by the Judge in response to a jury question.[13] Mr Munro took no issue with the Judge's summing up on this issue, nor withthe associated question in the question trail which provided:QUESTION 3:Are you sure that, when Mr Clarke shot Scott Henry, Mr Clarke knew thatshooting Mr Henry was likely to cause his death?Note: "likely" refers to a real and substantial risk that death will occur. Youmust be sure that Mr Clarke had an actual or conscious appreciation of a realand substantial risk that Mr Henry would die as a result of being shot.[14] However, during their deliberations, the jury sent a message to the Judgeseeking clarification on this question. After copying the question above, andunderlining the word "likely", they asked in reference to the italicised note:Note – In this note the words "will" and "would" are under discussion.Will or MayWould or Could Is there a difference?[15] The Judge discussed the question with trial counsel and made detailed recordsof her discussions in a bench note. The key point recorded by the Judge was asfollows:[44] I indicated to counsel that I had reservations about simply directingthe jury on the correct interpretation of plain English words, without referenceto the particular legal context in which they arose (s 167(d)). In my view itwas clear that the jury communication was actually directed to is trying to helpthe jury better understand the meaning of "likely" in Question 3 [45] The "note" underneath that section was simply aimed at providingfurther assistance as to the meaning of the word "likely" (which is taken froms 167(d)).[16] The Judge then gave the jury the following direction, as relevant: [T]he question you have to answer, which mirrors the wording in thedefinition that I have just read out to you, is:Are you sure that when Mr Clarke shot Scott Henry, Mr Clarke knewthat shooting Mr Henry was likely to cause his death.That is the question you have to answer and the [italicised note] is to try andprovide you some assistance as to what the word "likely" actually means.Question 3 is directed to that part of the definition that I read a minute agowhich refers to the offender, for any unlawful object, doing an act that he orshe knows to be likely to cause death. And then it carries on and therebykills any person.Question 3 is directed to that part of the definition. The note does not appearin the definition of murder, but it is an explanatory note from me to try andhelp you understand what "likely" means.The words used in the note are, as you pointed out, it refers to death "will"occur and the risk that Mr Henry "would" die as a result of being shot. Thewords "will" and "would" are plain English words. Ultimately, it is up to youto decide what those words mean in the overall context of this case. You must,however, be careful not to water them down. You must focus on the actualwords used, keeping in mind that the issue you need to decide is that which isset out in the actual question there:Are you sure that, when Mr Clarke shot Scott Henry, Mr Clarke knewthat shooting Mr Henry was likely to cause his death?That is the issue that you do need to decide. To the extent that you are seekingfurther assistance on the meaning of the word "likely", I would simply addthat "likely" does not mean that the defendant must believe that death is morelikely than not to result. It is sufficient if the defendant knew that death couldwell happen or was a real risk.Appellant's submissions[17] Mr Munro's first submission was that by failing to direct that "will" and"would" are different from "may" and "could", the Judge allowed the jury to "waterdown" the definition of "likely" in the question trail.[18] He also submitted that by adding the last paragraph with the direction that itwas something that "could well happen", the Judge incorrectly explained the thresholdfor foresight of death required under s 167(d).[19] To support this submission, Mr Munro referred to a range of judicial statementson what is required for murderous intent under s 167(d) (or an equivalent provision).5In doing so, Mr Munro relied in particular on this Court's decision in Shadrock v R,saying it set out the "current law" with respect to the appropriate directions on theissue of "likely" in this context. In that case, the question trail and note approvedstated:6[c] Knew at the time he drove forward that his actions were likely to causethe death of Mrs Wang.5 R v Dixon [1979] 1 NZLR 641 (CA) at 647; R v Wickliffe [1987] 1 NZLR 55 (CA) at 61; andR v Piri [1987] 1 NZLR 66 (CA) at 77.6 Shadrock v R [2011] NZCA 388, [2011] 3 NZLR 573 at [85] and [94].Note 1: For the purpose of [c], you must be satisfied that Mr Shadrock had anactual and conscious appreciation that there was a real and substantialrisk of Mrs Wang dying.[20] The endorsed summing up further stated:7Again, you come back to this critical central issue, and I do not want to labourthe point, but I simply ask you to take careful note of the words that I haveused in the note there. They are weighty words, "actual" and "conscious"appreciation, "real" and "substantial" risk. That is what the Crown mustestablish under both of these if you were to find Mr Shadrock guilty of murder.[21] Mr Munro submitted that Shadrock approved a direction which makes thedegree of foresight — significant enough to warrant the stigma of murder — as beingvirtually equivalent to an intentional killing.8 He says that, in responding to the jury'squestion, the Judge "retreated" from the Shadrock position. While she told the jurynot to "water down" the meaning of "likely" her subsequent answer to the juryquestion did just that. In particular, her direction lowered the threshold for foresightof death because it used the words "could well happen". While this phrase representeda correct direction in the 1980s (noting this direction was approved in R v Piri9), it nolonger did.[22] As the definition of "likely" was an issue that troubled the jury to the extentthat a question was asked about it, and because the guilt of his client turned on whetherhe foresaw death as "likely", there was a real risk to the outcome of the trial by givingthe "incorrect" direction.Discussion[23] We do not accept that the Judge allowed the jury to read down the wording inthe explanation of "likely". While she declined to elaborate on what the identifiedwords meant she expressly directed the jury to "be careful not to water them down".This was entirely appropriate.[24] Nor do we accept that Shadrock represents a change in the law, or that itpromotes a mandatory form of explanation of the term "likely". In that case, the Court7 At [87].8 See also R v Piri, above n 5, at 79 per Cooke P.9 R v Piri, above n 5.merely observed there was no error in the direction given which required there to be"an actual and conscious appreciation that there was a real and substantial risk" of thevictim dying.10[25] The authorities also make it clear that no single formula is appropriate in allcases. For example, in Piri, Cooke P observed that:11Every Judge who tries to formulate a test soon realises that no singleformula is preferable or adequate. Expressions commonly used to indicate thedegree of foresight of death required to be proved against the accused are areal risk, a substantial risk, something that might well happen.These are all well accepted explanations for what is meant by "likely" in this contextand continue to represent the law.[26] The jury's inquiry about the differences between "would" and "could" and"will" and "may" revealed they were concerned with the level of risk. The Judge saidit was sufficient if the defendant knew the death "could well happen" or was "a realrisk". That direction was entirely consistent with established authority. Indeed, inR v Meynell, the phrase "could well happen" was described as providing "astraightforward way of explaining the meaning of "likely" to the jury by the trialJudge".12 Similarly, in Piri, the terms "a real risk, a substantial risk, something thatmight well happen" were all referred to as expressions which describe the degree offoresight of death which had to be proved against the defendant.13[27] The additional explanation that the outcome need not be more probable thannot is, again, an entirely conventional direction. As was said in Piri, "it need not bemore probable than not but it should be more than a bare possibility".14[28] In short, the Judge's directions were orthodox and there was no error in herexplanation of the level of foresight required. Moreover we think she was wise tofocus the jury on the relevant words of the test themselves, rather than on their10 Shadrock v R, above n 6, at [85] and [94]–[95].11 R v Piri, above n 5, at 79.12 R v Meynell [2004] 1 NZLR 507 (CA) at [40].13 R v Piri, above n 3, at 79.14 At 84.difference from the inapplicable, albeit somewhat similar words "may" and "could".To do otherwise would have risked the very type of confusion Mr Munro seeks —misguidedly in our view — to base this aspect of this appeal on.[29] Accordingly, the appeal against conviction is dismissed.Appeal against sentence[30] The sentence appeal was filed out of time. However, no prejudice arises andthe Crown does not oppose the application for leave to appeal out of time.Accordingly, leave is granted and we go on to consider the substantive appeal.[31] The sentence appeal relies on the content of a second s 27 report adduced onappeal as fresh evidence.15 It provides evidence of Mr Clarke's exposure to violenceand drug use during his youth which he says, in combination with other mitigatingfactors, would make it manifestly unjust to impose an MPI of 17 years instead of anMPI of 15 years.[32] At sentencing the Judge was satisfied that a minimum term of at least 15 yearswould be warranted if the provisions of s 104 of the Sentencing Act 2002 did not apply.In reaching that conclusion, she had regard to the s 27 report prepared for that purposeand, while noting it had some deficiencies,16 she nevertheless found it provided helpfulbackground information. She said that in the report:17You described a loving home environment growing up. You attendedKōhanga Reo. There was kai to eat, clean clothes to wear and a warm bed tosleep in. Both of your parents worked. You were enrolled into the bilingualunit at primary school and for the most part had an enjoyable time there.[33] The report went on to note that at high school Mr Clarke began hanging outwith anti-social friends and began causing trouble, smoking cannabis and drinkingalcohol. At age 17, he began to prospect for the Taupo-Mongrel Mob chapter. Whilehe now suggested he wanted to end his gang association, the Judge rejected that saying15 Which was also not opposed by the Crown.16 Mr Clarke's whānau were not interviewed, and the report seemed to assume that his offending wasdrug offending not murder and aggravated robbery.17 Judgment under appeal, above n 1, at [94]."[y]our entrenched gang allegiance has been identified as the most notable barrier toyour rehabilitation".18[34] She concluded that "there is nothing in the personal circumstances I have justoutlined that would make a 17-year minimum period manifestly unjust."19 In reachingthat conclusion, she cited R v Williams, where this Court held that the statutoryminimum of 17 years will not be departed from lightly; only in exceptional cases willan offender's personal circumstances justify departure from the legislative policy.20Appellant's submissions[35] Mr Munro relies on the second s 27 report to say that Mr Clarke's childhoodwas not as settled as suggested in the original s 27 report. The second report notedthat Mr Clarke's parents would argue and fight and that Mr Clarke's father had alsobeaten him. Mr Munro says the second report links Mr Clarke's drug use with hisexposure to his parents smoking marijuana when he was young. The report alsoexplains why he was drawn to gang life stating that "[g]rowing up in such anenvironment would have been very uncertain and often scary for a small child tryingto make sense of the world" and would have made gang life with its rules andexpectations seem attractive.[36] Mr Munro points out that at the time of the shooting Mr Clarke was still 25 andso eligible for a discount for youth.21 He also considers the Judge's reliance on theobservations in Williams is out of step with current sentencing practice. In particular,he refers to Zhang v R, which emphasises that sentencing needs to involve a "fullevaluation of the circumstances to achieve justice in the individual case".22[37] If these matters are all taken into account, Mr Munro submits that a 17 yearminimum term in this case would be manifestly unjust and a lesser MPI of 15 yearsshould be substituted.18 At [99].19 At [101].20 R v Williams [2005] 2 NZLR 506 (CA) at [66]–[67].21 See Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [76]–[77].22 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [104], [105] and [120], citing Hessell v R[2010] NZSC 135, [2011] 1 NZLR 607 at [38].Discussion[38] We accept that the second cultural report gives a less favourable account ofMr Clarke's upbringing than the first one. That said, it does not disclose the levels ofdeprivation and cultural alienation that, sadly, many other defendants haveexperienced. In our view, the further s 27 report does not materially change theassessment of whether s 104 should apply.[39] We do not consider the observation in Williams, that the personalcircumstances of an offender will only displace the 17-year minimum term inexceptional cases, has been modified by Zhang. Zhang was a guideline judgmentsetting sentencing bands with regard to a list of factors, but noting the ability to moveoutside those bands when the individual circumstances require it.23 It has littlerelevance to a charge of murder where both the sentence and the minimum MPI isprescribed by the Sentencing Act except where manifest injustice arises.[40] Here, the murder was committed during an aggravated robbery. Section 104prescribes a mandatory minimum period of imprisonment of 17 years for suchmurders, unless in the circumstances it would be manifestly unjust. That wouldusually arise when the MPI which would have been imposed under normal sentencingprinciples would result in an MPI so markedly different from the statutory MPI formurder, that it would be unjust to impose the statutory MPI.[41] The difference between the "at least" 15 year MPI identified by the Judge andthe statutory MPI of 17 years is not sufficiently great to give rise to a manifestinjustice. Given the aggravating features of the offending, including its pre-meditationand brutality, the principles of denunciation and deterrence must prevail.[42] Nothing raised by the appellant's submissions would make it manifestly unjustfor the statutory MPI to apply and there is no error in the sentence imposed.23 At [10(a)].Result[43] The applications for an extension of time to appeal, and to adduce freshevidence, are granted.[44] The appeal against conviction and sentence is dismissed.Solicitors:Crown Law, Wellington