Clarke v R [2021] NZCA 151 (3 May 2021)

Last Updated: 11 May 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA31/2019 [2021] NZCA 151

	BETWEEN	WHAKAPUMAUTANGA CLARKE Appellant
	AND	THE QUEEN Respondent

Hearing:	17 March 2021
Court:	Clifford, Brewer and Dunningham JJ
Counsel:	J D Munro and J N Olsen for Appellant M J Lillico for Respondent
Judgment:	3 May 2021 at 3.00 pm

JUDGMENT OF THE COURT

1. The applications for an extension of time to appeal, and to adduce fresh evidence, are granted.
2. 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 been found guilty of murder and aggravated robbery following a trial before Katz J and a jury at the High Court in Rotorua. He was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 17 years.^[1]
• [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 found guilty of manslaughter.

Applications for extension of time and fresh evidence

• [3] Mr Clarke commenced an “as-of right” appeal against conviction in 2019,^[2] but after changing counsel he subsequently wanted to appeal his sentence also.^[3] That appeal was out of time, so an extension of time is required. He also applies to adduce fresh evidence, namely a cultural report prepared by an alcohol and drug clinician from November 2020, to support his sentence appeal. The Crown does not oppose 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 jury question. Counsel for Mr Clarke, Mr Munro, submits the definition of “likely” given by the Judge at this juncture “did not accurately reflect the law and permitted the jury to 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 report prepared by a registered psychologist and drug and alcohol clinician. It is submitted that, had this report been available at sentencing, the Judge could have concluded it would be manifestly unjust to impose a MPI of 17 years.^[4]

The offending

• [6] On 20 July 2017, Mr Clarke and his two co-defendants planned to carry out an armed robbery at the property of the victim, Scott Henry, in order to steal drugs and money from him.
• [7] Prior to the robbery that evening, one of Mr Clarke’s two co-defendants collected three firearms (including a shotgun), and ammunition. The two 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 address where they removed their gang patches. When Mr Clarke got back into the car he was holding the shotgun. From this point onwards, all three defendants were aware a firearm was going to be involved in the robbery and Mr Clarke knew that the firearm was loaded.
• [9] On arriving at the victim’s house, Mr Clarke and his co-defendants confronted Mr Henry’s partner. They demanded drugs and money and asked where Mr Henry was. Mr Henry’s partner was made to wait with one of the co-defendants, while Mr 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 him in the chest. One of the defendants then grabbed a bag owned by the victim that contained methamphetamine and cash and they left the property. Mr Henry was either dead 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 entirely accidental and he did not appreciate that the discharge was likely to cause Mr Henry’s death. 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 with the associated question in the question trail which provided:

QUESTION 3:

Are you sure that, when Mr Clarke shot Scott Henry, Mr Clarke knew that shooting Mr Henry was likely to cause his death?

Note: “likely” refers to a real and substantial risk that death will occur. You must be sure that Mr Clarke had an actual or conscious appreciation of a real and 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 Judge seeking clarification on this question. After copying the question above, and underlining 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 May

Would or Could Is there a difference?

• [15] The Judge discussed the question with trial counsel and made detailed records of her discussions in a bench note. The key point recorded by the Judge was as follows:

[44] I indicated to counsel that I had reservations about simply directing the jury on the correct interpretation of plain English words, without reference to the particular legal context in which they arose (s 167(d)). In my view it was clear that the jury communication was actually directed to is trying to help the jury better understand the meaning of “likely” in Question 3 ...

[45] The “note” underneath that section was simply aimed at providing further assistance as to the meaning of the word “likely” (which is taken from s 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 the definition that I have just read out to you, is:

Are you sure that when Mr Clarke shot Scott Henry, Mr Clarke knew that shooting Mr Henry was likely to cause his death.

That is the question you have to answer and the [italicised note] is to try and provide 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 ago which refers to the offender, for any unlawful object, doing an act that he or she knows to be likely to cause death. And then it carries on ... and thereby kills any person.

Question 3 is directed to that part of the definition. The note does not appear in the definition of murder, but it is an explanatory note from me to try and help 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. The words “will” and “would” are plain English words. Ultimately, it is up to you to 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 actual words used, keeping in mind that the issue you need to decide is that which is set out in the actual question there:

Are you sure that, when Mr Clarke shot Scott Henry, Mr Clarke knew that 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 seeking further assistance on the meaning of the word “likely”, I would simply add that “likely” does not mean that the defendant must believe that death is more likely than not to result. It is sufficient if the defendant knew that death could well 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 “water down” the definition of “likely” in the question trail.
• [18] He also submitted that by adding the last paragraph with the direction that it was something that “could well happen”, the Judge incorrectly explained the threshold for foresight of death required under s 167(d).
• [19] To support this submission, Mr Munro referred to a range of judicial statements on what is required for murderous intent under s 167(d) (or an equivalent provision).^[5] In 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 the issue of “likely” in this context. In that case, the question trail and note approved stated:^[6]

[c] Knew at the time he drove forward that his actions were likely to cause the death of Mrs Wang.

Note 1: For the purpose of [c], you must be satisfied that Mr Shadrock had an actual and conscious appreciation that there was a real and substantial risk of Mrs Wang dying.

• [20] The endorsed summing up further stated:^[7]

Again, you come back to this critical central issue, and I do not want to labour the point, but I simply ask you to take careful note of the words that I have used in the note there. They are weighty words, “actual” and “conscious” appreciation, “real” and “substantial” risk. That is what the Crown must establish 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 the degree of foresight — significant enough to warrant the stigma of murder — as being virtually equivalent to an intentional killing.^[8] He says that, in responding to the jury’s question, the Judge “retreated” from the Shadrock position. While she told the jury not to “water down” the meaning of “likely” her subsequent answer to the jury question did just that. In particular, her direction lowered the threshold for foresight of death because it used the words “could well happen”. While this phrase represented a correct direction in the 1980s (noting this direction was approved in R v Piri^[9]), it no longer did.
• [22] As the definition of “likely” was an issue that troubled the jury to the extent that a question was asked about it, and because the guilt of his client turned on whether he foresaw death as “likely”, there was a real risk to the outcome of the trial by giving the “incorrect” direction.

Discussion

• [23] We do not accept that the Judge allowed the jury to read down the wording in the explanation of “likely”. While she declined to elaborate on what the identified words 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 it promotes a mandatory form of explanation of the term “likely”. In that case, the Court 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 the victim dying.^[10]
• [25] The authorities also make it clear that no single formula is appropriate in all cases. For example, in Piri, Cooke P observed that:^[11]

Every Judge who tries to formulate a test ... soon realises that no single formula is preferable or adequate. Expressions commonly used to indicate the degree of foresight of death required to be proved against the accused are a real risk, a substantial risk, something that might well happen.

These are all well accepted explanations for what is meant by “likely” in this context and 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 said it was sufficient if the defendant knew the death “could well happen” or was “a real risk”. That direction was entirely consistent with established authority. Indeed, in R v Meynell, the phrase “could well happen” was described as providing “a straightforward way of explaining the meaning of “likely” to the jury by the trial Judge”.^[12] Similarly, in Piri, the terms “a real risk, a substantial risk, something that might well happen” were all referred to as expressions which describe the degree of foresight of death which had to be proved against the defendant.^[13]
• [27] The additional explanation that the outcome need not be more probable than not is, again, an entirely conventional direction. As was said in Piri, “it need not be more 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 her explanation of the level of foresight required. Moreover we think she was wise to focus the jury on the relevant words of the test themselves, rather than on their 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 and the 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 on appeal as fresh evidence.^[15] It provides evidence of Mr Clarke’s exposure to violence and drug use during his youth which he says, in combination with other mitigating factors, would make it manifestly unjust to impose an MPI of 17 years instead of an MPI of 15 years.
• [32] At sentencing the Judge was satisfied that a minimum term of at least 15 years would 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 purpose and, while noting it had some deficiencies,^[16] she nevertheless found it provided helpful background information. She said that in the report:^[17]

You described a loving home environment growing up. You attended Kōhanga Reo. There was kai to eat, clean clothes to wear and a warm bed to sleep in. Both of your parents worked. You were enrolled into the bilingual unit 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 out with anti‑social friends and began causing trouble, smoking cannabis and drinking alcohol. At age 17, he began to prospect for the Taupo-Mongrel Mob chapter. While he now suggested he wanted to end his gang association, the Judge rejected that saying “[y]our entrenched gang allegiance has been identified as the most notable barrier to your rehabilitation”.^[18]
• [34] She concluded that “there is nothing in the personal circumstances I have just outlined that would make a 17-year minimum period manifestly unjust.”^[19] In reaching that conclusion, she cited R v Williams, where this Court held that the statutory minimum of 17 years will not be departed from lightly; only in exceptional cases will an offender’s personal circumstances justify departure from the legislative policy.^[20]

Appellant’s submissions

• [35] Mr Munro relies on the second s 27 report to say that Mr Clarke’s childhood was not as settled as suggested in the original s 27 report. The second report noted that Mr Clarke’s parents would argue and fight and that Mr Clarke’s father had also beaten him. Mr Munro says the second report links Mr Clarke’s drug use with his exposure to his parents smoking marijuana when he was young. The report also explains why he was drawn to gang life stating that “[g]rowing up in such an environment would have been very uncertain and often scary for a small child trying to make sense of the world” and would have made gang life with its rules and expectations seem attractive.
• [36] Mr Munro points out that at the time of the shooting Mr Clarke was still 25 and so eligible for a discount for youth.^[21] He also considers the Judge’s reliance on the observations 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 “full evaluation 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 year minimum term in this case would be manifestly unjust and a lesser MPI of 15 years should be substituted.

Discussion

• [38] We accept that the second cultural report gives a less favourable account of Mr Clarke’s upbringing than the first one. That said, it does not disclose the levels of deprivation and cultural alienation that, sadly, many other defendants have experienced. In our view, the further s 27 report does not materially change the assessment of whether s 104 should apply.
• [39] We do not consider the observation in Williams, that the personal circumstances of an offender will only displace the 17-year minimum term in exceptional cases, has been modified by Zhang. Zhang was a guideline judgment setting sentencing bands with regard to a list of factors, but noting the ability to move outside those bands when the individual circumstances require it.^[23] It has little relevance to a charge of murder where both the sentence and the minimum MPI is prescribed by the Sentencing Act except where manifest injustice arises.
• [40] Here, the murder was committed during an aggravated robbery. Section 104 prescribes a mandatory minimum period of imprisonment of 17 years for such murders, unless in the circumstances it would be manifestly unjust. That would usually arise when the MPI which would have been imposed under normal sentencing principles would result in an MPI so markedly different from the statutory MPI for murder, that it would be unjust to impose the statutory MPI.
• [41] The difference between the “at least” 15 year MPI identified by the Judge and the statutory MPI of 17 years is not sufficiently great to give rise to a manifest injustice. Given the aggravating features of the offending, including its pre‑meditation and brutality, the principles of denunciation and deterrence must prevail.
• [42] Nothing raised by the appellant’s submissions would make it manifestly unjust for the statutory MPI to apply and there is no error in the sentence imposed.

Result

• [43] The applications for an extension of time to appeal, and to adduce fresh evidence, are granted.
• [44] The appeal against conviction and sentence is dismissed.

Solicitors:
Crown Law, Wellington

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^[1] R v Chase [2018] NZHC 3332 [Judgment under appeal].

^[2] Criminal Procedure Act 2011, s 229.

^[3] Section 244.

^[4] Sentencing Act 2002, s 104.

^[5] R v Dixon [1979] 1 NZLR 641 (CA) at 647; R v Wickliffe [1987] 1 NZLR 55 (CA) at 61; and R v Piri [1987] NZCA 6; [1987] 1 NZLR 66 (CA) at 77.

^[6] Shadrock v R [2011] NZCA 388, [2011] 3 NZLR 573 at [85] and [94].

^[7] At [87].

^[8] See also R v Piri, above n 5, at 79 per Cooke P.

^[9] R v Piri, above n 5.

^[10] Shadrock v R, above n 6, at [85] and [94]–[95].

^[11] R v Piri, above n 5, at 79.

^[12] R v Meynell [2003] NZCA 262; [2004] 1 NZLR 507 (CA) at [40].

^[13] R v Piri, above n 3, at 79.

^[14] At 84.

^[15] 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 was drug offending not murder and aggravated robbery.

^[17] Judgment under appeal, above n 1, at [94].

^[18] At [99].

^[19] At [101].

^[20] R v Williams [2004] NZCA 328; [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].

^[23] At [10(a)].