Clark v Police - [2019] NZHC 984

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI2019-425-1

[2019] NZHC 984

BETWEEN
KANE REX CLARK

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 6 May 2019

Appearances:

J Fraser for Appellant

S McKenzie for Respondent

Judgment:

7 May 2019

JUDGMENT OF MANDER J

[1] The appellant, Kane Clark, was sentenced to 20 months’ imprisonment and disqualified from driving for two and a half years after entering guilty pleas to four charges of driving while suspended, being his third or subsequent offence, and a charge of breaching a supervision order. He was granted leave to apply for home detention. Mr Clark appeals the length of the term of imprisonment. He alleges it is manifestly excessive.

Background

[2] On 9 October 2017, Mr Clark was apprehended driving in the vicinity of Queenstown. He had, the previous month, been suspended from driving due to excess demerit points. At the time he was stopped he admitted he was currently suspended. In explanation, he maintained he had caught a ride into Queenstown where he works as a builder, but the person who was meant to drive him home had become intoxicated and he was unable to get home without driving himself.

CLARK v NEW ZEALAND POLICE [2019] NZHC 984 [7 May 2019]

[3] Mr Clark was next apprehended, on 7 December, driving his vehicle in Lumsden. He had driven the vehicle to the grocery store and was apprehended after returning from his shopping. He again admitted to not having a current driver’s licence and being suspended. In explanation, he stated that he had an accident at work and found it hard to walk. On 11 December, Mr Clark was observed driving his vehicle along Frankton Road in Queenstown. In explanation, he stated that he had lost his ride home after going to Court.

[4] Mr Clark’s most recent offending occurred on 12 November 2018, when he was located driving a vehicle on Ida Valley Omakau Road, Oturehua. When stopped he admitted that he was suspended from driving but maintained he was just taking the vehicle for a test drive before he went to Court in Queenstown.

District Court decision

[5] In sentencing Mr Clark, Judge Farnan took as the lead offence Mr Clark’s most recent offending on 18 November, in respect of which she adopted a starting point of 18 months’ imprisonment. A further six months were imposed to reflect the appellant’s previous record, which included some nine previous convictions for driving while disqualified. A three month uplift was applied in recognition of the other charges, including a separate charge of breaching supervision. This resulted in an overall starting point of 27 months’ imprisonment. A seven month discount for the entry of guilty pleas, in respect of which no challenge is made, resulted in the 20 month prison term.

[6] Mr Clark has had ongoing health issues. The Judge acknowledged that feature but was not prepared to extend a discount. In the absence of any apparent…

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 Clark v Police

Details

AGLC: Clark v Police [2019] NZHC 984
Case: [2019] NZHC 984
Decision Date: 7 May 2019

CaseChat Overview and Summary

In Clark v Police, the appellant, Kane Clark, appealed against the length of his imprisonment sentence. Mr Clark was sentenced to 20 months’ imprisonment and disqualified from driving for two and a half years after pleading guilty to four charges of driving while suspended and one charge of breaching a supervision order. The appeal centered on whether the sentence was manifestly excessive. The court examined whether the sentencing Judge had effectively double-counted Mr Clark's history of driving while disqualified or suspended when calculating the sentence.

The sentencing Judge adopted a starting point of 18 months’ imprisonment for the lead offence and imposed further uplifts to reflect Mr Clark's previous record and other charges. Mr Clark's counsel submitted that the starting point was excessive, and that the Judge should have applied a discount for his health issues and the principle of totality. The Crown submitted that the sentence was within the range available to the Judge in the exercise of her discretion.

The court considered two judicial approaches to sentencing recidivist offenders who drive while disqualified or suspended. Whichever approach is adopted should reflect the offender's overall culpability and lead to the same result. In this case, the court concluded that a starting point of between 19 and 22 months' imprisonment was appropriate for Mr Clark's thirteenth offence of driving while disqualified or suspended. The difference between the final starting point taken by the sentencing Judge and that which the appeal court reconstructed by reference to previous cases would be minimal, if any. The appeal court also considered Mr Clark's health issues and the principle of totality in reaching its decision.

The appeal court found that the final sentence was not wholly out of proportion to the overall gravity of the offending when taken in combination. Even accepting that the sentencing Judge may have erred in the way in which the sentence was constructed, the appeal court did not consider a different sentence should be imposed. The appeal was dismissed.

Orders