Clark v Police

[2015] NZHC 2628

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-485-36 [2015] NZHC 2628

BETWEEN

NEIL MARTIN CLARK

Appellant

AND

NEW ZEALAND POLICE Respondent

CRI-2015-485-38

BETWEEN  NEIL MARTIN CLARKE Appellant

ANDMINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:	On the papers
Counsel:	Appellant in person A R T Garrick for Respondent
Judgment:	27 October 2015

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is

2 pm on the 27th day of October 2015

CLARK v NEW ZEALAND POLICE [2015] NZHC 2628 [27 October 2015]

[1]      Mr Clarke has filed an application for leave to appeal to the Court of Appeal against my judgment delivered on 22 July 2015 on his appeal against sentence.1

This judgment needs to be read in conjunction with that one.

[2]      The application was filed over a month out of time because (Mr Clarke says)

he was given the wrong forms.2

[3]      Leave may be granted only:

(a)       on a question of law,  where

(b)the question of law involved is one which, by reason of its general or public importance, or for any other reason, ought to be submitted to the Court of Appeal for decision.

[4]      By minute dated 1 October 2015 I asked Mr Clarke to identify:

(a)      the question of law which Mr Clarke submits arises on his proposed appeal;  and

(b)      the reasons why that question is of general and public importance;  or

(c)       any other reason upon which he relies to support submission to the

Court of Appeal.

[5]      He has now filed a memorandum in response.  His response suggests that his principal proposed contention on appeal is that the (adverse) reference in my judgment to his completion of only three out of the 200 hours community work from his “Tauranga” sentence was wrong.   The reason it was wrong (he says) is that I failed to take into account the fact that that sentence was suspended pending his

appeal.

1      Clarke v New Zealand Police [2015] NZHC 1692.

2      The application for leave is made pursuant to s 144 of the Summary Proceedings Act 1957 because the original proceeding commenced prior to 1 July 2013.

[6]      I  am  prepared  to  accept  that  this  alleged  error  might  be  capable  of constituting a question of law, although it is difficult to see how it could be called a question of general  or public importance.   That additional requirement was not addressed at all by Mr Clarke in his response.

[7]      But even if there is some wider importance in the question which is not presently apparent to me, there is another difficulty.  That is because I said in my judgment:

[31]     Mr Clarke was sentenced for the 2012 charges on 3 July 2012. By virtue of s 345 of the SA that sentence ceased to run from the date upon which his appeal was filed. The sentence resumed on the date upon which his appeal was dismissed. Mr Clarke’s sentence therefore began to run again from the date of Collins J’s decision declining his appeal against sentence, namely 8 May 2013.

[32]     By  the  time  of  the  sentence  indication,  some  10  months  later, Mr Clarke had completed only three of the 200 hours community service ordered.

[emphasis added but footnotes omitted]

[8]      It now seems that there were two errors in those two paragraphs but neither assists Mr Clarke.  The first is arithmetical in nature; in fact there was a period of one year and 10 months between the declining of his appeal and the sentence indication.  Mr Clarke therefore had over twice as long as I had thought to take steps to complete his community service.  The second is that the reference to s 345 of the Sentencing Act 2002 should in fact have been to s 124 of the Summary Proceedings Act 1957 (which has since been repealed).  But as I think Mr Clarke acknowledges, that is a distinction without a difference; the two sections have materially the same effect.

[9]      I am therefore unable to see how the points now made by Mr Clarke would assist him.  It seems to me I recognised precisely the point now made but in a way more  favourable  to  him.      No  genuine  question  of  law  of  general  or  public

importance has been identified.  Leave to appeal is declined accordingly.

Solicitors:      Crown Solicitors, Wellington, for Respondents

Copy to:       Mr Clark

“Rebecca Ellis J”