Clapham v The Queen
[2012] NZCA 130
•2 April 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA44/2012 [2012] NZCA 130 |
| BETWEEN BRENDYN CLAPHAM |
| AND THE QUEEN |
| Hearing: 14 March 2012 |
| Court: O'Regan P, MacKenzie and Asher JJ |
| Counsel: P M Keegan for Appellant |
| Judgment: 2 April 2012 at 2.30 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
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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 principles of deterrence and denunciation. The Judge was particularly concerned that a sentence of home detention would encourage some people to commit fraud because the financial gains would be favourably disproportionate to the price paid upon discovery of the fraud.
Did the Judge err in refusing home detention?
Counsel for Mr Clapham, Mr Keegan, realistically accepted that the end sentence of 15 months imprisonment, and the Judge’s methodology in reaching that sentence, were both unassailable. He focused entirely on the decision to refuse home detention.
Mr Keegan said that the Judge had given considerable weight to the fact that no rehabilitative needs had been identified in relation to Mr Clapham. He referred us to a recent High Court decision, Gibson v Police,[2] in which Heath J had pointed out that the fact that no rehabilitative need was identified in relation to an offender should not necessarily lead the Court to determine that home detention is inappropriate. Mr Keegan also referred to a number of decisions of this Court in which the fact or prospect of rehabilitation was seen as an important component in the decision to allow a sentence to be served by way of home detention. In particular, he referred us to this Court’s decision in R v Hill.[3]
[2] Gibson v Police [2012] NZHC 315.
[3] R v Hill [2008] NZCA 41 at [39].
Mr Keegan said that Mr Clapham had made a considerable effort at rehabilitation. He referred to the pre-sentence report from which it was noted that Mr Clapham had stabilised significantly since the time of the offending and that, during 2011, he had committed himself to attending individual counselling and group education and support meetings. A report from his counsellor in August 2011 had commended him for his commitment to the goal of maintaining abstinence from drugs and his motivation to avoid relapsing. Mr Keegan also emphasised that the writer of the pre-sentence report had assessed Mr Clapham’s risk of re-offending as low. He said it was clear that the underlying cause of the offending was Mr Clapham’s addiction to methamphetamine. In that respect he quoted the sentencing Judge’s observation that the money taken by Mr Clapham “went up in smoke”. He also emphasised the mental health issues of Mr Clapham, which meant that prison would be harder for him than for other offenders.
For the Crown, Mr Boldt accepted that the rehabilitative efforts of the offender were important considerations in the home detention decision, but argued that other factors were such that the Judge could not be said to have erred in refusing home detention. He referred to the aggravating factors identified by the Judge, particularly the fact that the offending was deliberate and sustained over a long period, that Mr Clapham had a bad history of dishonesty offending, the serious impact on the victims and the fact that no reparation was offered. He said that the psychiatric assessment of Mr Clapham which was before the sentencing Judge had included an observation that Mr Clapham blamed his partner for his predicament and took no responsibility for his offending.
We accept Mr Boldt’s submission that the aggravating factors that were instrumental in the Judge’s decision not to allow the sentence to be served by way of home detention were significant, and justified the Judge’s approach. While we accept Mr Keegan’s submission that the lack of rehabilitative needs, particularly where rehabilitative efforts have already been undertaken, is not, of itself, decisive in home detention decisions, we consider that the other matters that underpinned the sentencing decision provided a proper basis for the Judge’s assessment. We do not, therefore, consider that the Judge erred in taking the approach he did.
Result
We dismiss the appeal.
Solicitors:
Crown Law Office, Wellington for Respondent
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