Clapham v The Queen - [2012] NZCA 130

IN THE COURT OF APPEAL OF NEW ZEALAND

CA44/2012
[2012] NZCA 130

BETWEEN BRENDYN CLAPHAM
Appellant

AND THE QUEEN
Respondent

Hearing: 14 March 2012

Court: O'Regan P, MacKenzie and Asher JJ

Counsel: P M Keegan for Appellant
D J Boldt for Respondent

Judgment: 2 April 2012 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

_______________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Introduction

The appellant, Mr Clapham, pleaded guilty to 24 counts of receiving under ss 246(1) and 247 Crimes Act 1961. Judge Roberts sentenced Mr Clapham to 15 months imprisonment.[1] Mr Clapham appeals against his sentence on the basis that a sentence of home detention should have been imposed.

Background facts

[1] R v Clapham DC New Plymouth CRI-2010-043-3995, 20 January 2012.

The 24 convictions for receiving relate to events that occurred between June 2008 and July 2010. Mr Clapham was living with his partner Ms Clare Strachan. Ms Strachan had been dishonestly obtaining and stealing substantial sums of money from her employer, and providing Mr Clapham with a portion of this.
Mr Clapham had been using an eftpos card on a joint bank account that he and Ms Strachan had established at Westpac Bank. This account was in addition to the two other joint accounts they had with two other banks. The Westpac account was almost exclusively used to receive the funds that Ms Strachan had stolen from her employer, and was spent by both of them.
The 24 convictions relate to occasions where Mr Clapham deposited stolen money into the Westpac account, used his eftpos card to make purchases using funds in the Westpac account, or withdrew money from the Westpac account via an ATM machine. In total, Mr Clapham withdrew or spent $45,629.12 of the stolen money.

Issue on appeal

The appeal is limited to the issue of whether the sentence of imprisonment should be commuted to one of home detention. In particular, Mr Clapham is concerned that the sentencing Judge placed too much weight on the principles of deterrence and denunciation, and insufficient weight on the progress that Mr Clapham had made at rehabilitation from his methamphetamine addiction.

The sentencing decision

Judge Roberts arrived at a starting point of 18 months’ imprisonment, taking into account the aggravating factors of premeditation and the extent of the loss caused to the victim. The Judge then applied an uplift of four months to reflect Mr Clapham’s previous dishonesty convictions. Judge Roberts then reduced the sentence by two months to recognise that Mr Clapham had undertaken counselling and abstained from drug taking, and made a further one-quarter credit for the guilty plea. The end sentence was therefore 15 months’ imprisonment.
Judge Roberts considered that home detention was inappropriate. The factors leading to this decision were that the offending was serious, no rehabilitative needs were identified, Mr Clapham had a history of dishonest offending and there was no offer of reparation. The Judge considered that a sentence of home detention would not adequately emphasise the sentencing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clapham v The Queen

Details

AGLC: Clapham v The Queen [2012] NZCA 130
Case: [2012] NZCA 130
Decision Date: 2 April 2012

CaseChat Overview and Summary

In the case of Clapham v The Queen, the appellant, Brendyn Clapham, appealed against his sentence of 15 months imprisonment for 24 counts of receiving stolen funds. Clapham argued that he should have been sentenced to home detention instead. The Court of Appeal of New Zealand, comprising O'Regan P, MacKenzie, and Asher JJ, heard the appeal on 14 March 2012, and handed down its judgment on 2 April 2012. The appeal was ultimately dismissed.

The primary legal issue the court needed to decide was whether the sentencing Judge, Roberts, had erred in refusing to impose a sentence of home detention. Clapham contended that the Judge had placed too much emphasis on the principles of deterrence and denunciation, and not enough on Clapham's efforts at rehabilitation from his methamphetamine addiction. The Crown, on the other hand, argued that the aggravating factors identified by the Judge, such as the deliberate and sustained nature of the offending, Clapham's history of dishonesty, and the serious impact on the victims, justified the decision not to impose home detention.

The Court of Appeal considered the arguments from both sides and found that the aggravating factors instrumental in the Judge's decision were significant and justified the Judge's approach. The court also acknowledged that while the lack of identified rehabilitative needs, particularly when rehabilitative efforts have been undertaken, is not decisive in home detention decisions, the other factors that underpinned the sentencing decision provided a proper basis for the Judge's assessment. Consequently, the Court of Appeal did not consider that the Judge had erred in taking the approach he did.

As a result of the Court of Appeal's decision, the appeal was dismissed. Clapham's sentence of 15 months imprisonment remained in place.

Orders