district court logo

R v Clarke [2023] NZDC 25285

Published 25 November 2024

Sentencing — threatening to kill — threatening to do grievous bodily harm — no guiding tariff — representative charge — threatening to destroy property — attempted illegal manufacture of firearms — 3D printing — failure to comply with COVID-19 orders — breaching border control — failure to carry out obligations in relation to computer search — unlawful possession of a firearm — possession of methamphetamine for supply — Arms Act 1983, s 55D — Sentencing Act 2002, s 8 — Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 — Joyce v R [2020] NZCA 124 — Porter v Police [2022] NZHC 415 — R v Cook 2020 ONCJ 374 — R v Beals [2015] O.J No. 2306 (SCJ) — Faaleaga v R [2011] NZCA 495 — Berkland v R [2022] NZSC 143. The defendant appeared for sentence on a number of charges: threatening to kill or do grievous bodily harm (a representative charge), two charges of threatening to kill, and one charge each of threatening to destroy property, attempted illegal manufacture of firearms, failure to comply with COVID-19 orders, failure to carry out obligations in relation to a computer search, unlawful possession of a firearm and possession of methamphetamine for supply. It was accepted that the lead charge was possession of methamphetamine for supply, on which the Court considered a starting point of four years' imprisonment was appropriate. On the possession of firearms charge, an 18-month uplift was given. On the charge of attempted illegal manufacture of firearms, there was no higher court authority on this as it was a new provision. The maximum penalty for illegal manufacture of a firearm was 10 years' imprisonment; however, the defendant was charged with attempted manufacture, which had a maximum penalty of five years' imprisonment. The Court adopted a starting point of 18 months' imprisonment on this charge, adjusted down from two years for totality. The Court added an uplift of nine months' imprisonment on the charge of threatening to kill. On the remaining charges, the Court absorbed these into the four years' imprisonment on the lead charge. The total starting point was seven years and nine months’ imprisonment. The Court then considered mitigating factors, giving a 20 per cent discount for a guilty plea, 10 per cent for personal circumstances, and 10 per cent for rehabilitative steps taken. The aggravating factor was a previous history of offending, for which the Court applied a six-month uplift. The end sentence was one of five years and one month imprisonment. The Court also made an order for destruction of the methamphetamine, firearms, firearms parts, 3D printer and laptop. Judgment Date: 10 August 2023.