Clark v Police

[2015] NZHC 1997

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000064 [2015] NZHC 1997

BETWEEN

JAMES FREDRICK CLARK

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	13 August 2015
Appearances:	C M Yardley for Appellant C Butchard for Respondent
Judgment:	21 August 2015

JUDGMENT OF GENDALL J

Introduction

[1]     The appellant appeals against a sentence of two years’, three months imprisonment imposed in the District Court on 27 May 2015 following a guilty plea on charges of:

(a)       Assault on a child (maximum penalty two years’ imprisonment);

(b)      Burglary (maximum penalty ten years’ imprisonment);

(c)       Peeping into a dwelling house at night (maximum penalty $500 fine)

and

(d)      Indecent    act    (representative)    (maximum     penalty    two    years’

imprisonment).

CLARK v NEW ZEALAND POLICE [2015] NZHC 1997 [21 August 2015]

[2]      The grounds of appeal advanced here are that the sentence is manifestly excessive and that a sentence of two years or less with an option for home detention or leave for home detention should have been imposed.

Factual background

[3]      In November 2014 the appellant, who was at the time subject to a sentence of intensive supervision, accosted and briefly detained a 13 year old girl in a park in Christchurch.  While on bail for that charge, in February 2015, in an attempt to peer into his neighbour’s house in which young girls including two aged 12 and 14 lived, he climbed onto the roof of their house, looked through skylight windows and then proceeded to try and get onto a balcony.  The appellant fell and cut his hand or finger and then he entered the master bedroom and found a bandage for his cut.  Shortly after he saw a light shining underneath a bathroom door where the 14 year old female victim had locked herself in, being aware that someone had come into the house.  The appellant tried the handle on the bathroom door, found it to be locked and then left.

[4]      When apprehended, the appellant told police that he had climbed a tree for the purposes of looking through bedroom windows of the house at the young female occupants on approximately eight previous occasions and that the appellant would masturbate if he saw any of those young girls in states of undress.  He also told the police that he had entered the house to try and find a way off the roof after he cut himself, and ominously the appellant added that:

It was good that the bathroom door was locked and I was glad I didn’t do

anything further that I would regret for the rest of my life.

[5]      Turning back to the events in question, the 14 year old victim had, it seems, locked herself in the bathroom at the time because she was concerned about an intruder she had heard being in the house.  The District Court Judge in his sentencing notes records that the effect on the victim has been traumatic.  He noted that it has affected her and her two younger sisters together with her mother and father who, of course, are highly concerned about the risks for their young daughters and, in particular, the residual uncomfortable feeling that their children were being spied upon in a prurient way.

Appeal jurisdiction

[6]      Turning now to the appeal jurisdiction here, the appellant is able to appeal the sentence imposed as of right.1   This Court, as first appeal Court, will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence and that a different sentence should be imposed.2   The Court of Appeal has confirmed that  the sentence  appeal  regime  in  the Criminal  Procedure Act  2011 remains the same as that under the predecessor regimes in the Crimes Act 1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).3   His Honour Toogood J recently captured the essence of the test in Larkin v Ministry of Social Development:4

[26]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

[7]      Specifically, the Court of Appeal has commented:5

On appeal, an assessment of the judge's evaluation will inevitably take place within the context of an inquiry into whether the final sentence is of an available type, and if so, whether it has been shown to be manifestly excessive. No specific rules can or should be prescribed.

[8]      The ability of counsel to point to discrete, and often trivial, errors in the sentencing notes of a busy Judge is far from determinative.   In addition to the identification of error, the appellant must persuade the appeal court that the ultimate sentence imposed was outside the range available to him or her.   This does not simply entail pointing to a single case where another judge, on another day, presiding over a case with different facts, imposed a different sentence.

District Court decision

[9]      In the present case, Judge Callaghan in the District Court took the burglary charge as the lead charge.  He found that the charge was aggravated by the fact that

1      Criminal Procedure Act 2011, s 244.

2      Sections 247 and 250.

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

4      Larkin v Ministry of Social Development [2015] NZHC 680, citing Ripia v R [2011] NZCA 101 at [15].

5      Ripia v R [2011] NZCA 101 at [10].

the appellant had kept an eye on the house and approached one or both of the complainants on the street previously.

[10]    His Honour noted the psychological assessment from the Department of Corrections psychologist which assessed Mr Clark at a high risk of sexual re- offending, and expressed concern that all of the victims here were young, vulnerable and had suffered greatly.

[11]    Judge Callaghan found that the indecent act charge was very much an aggravating feature of the burglary charge and noted further that the peeping charge was subsumed by that charge.  His Honour took a starting point of two years, six months imprisonment.

[12]     He rejected the submission from counsel for the appellant that no additional penalty should be added for the indecent act representative charge because that charge came about through the appellant admitting the conduct to the police.   His Honour decided that it would be unrealistic to ignore it and so he included it as an aggravating factor that added to the seriousness of the burglary.

[13]     As to personal aggravating factors, Judge Callaghan referred to the fact the appellant was on bail for the earlier assault charge when the burglary occurred, and he was also subject to an intensive supervision sentence for similar type offending committed in February 2014.

[14]     Uplifts first, of one month imprisonment to reflect the fact the appellant was on bail, and secondly, of three months’ imprisonment to take account of the previous offending, including being on intensive supervision, followed.

[15]     Judge Callaghan then considered the assault charge and, noting the totality principle,  increased  the  sentence  to  one  of  three  years’ imprisonment  prior  to considering the appellant’s guilty plea.  A full 25% discount was then given for the appellant’s guilty pleas to arrive at the end sentence of two years’ three months.

[16]     Judge Callaghan then went on to note that, even if the sentence was under two years, he would have been unlikely to grant home detention considering the appellant’s proximity to the female victims the subject of the indecent act charge, the high risk of re-offending and the need to protect the public.

Counsel’s submissions and my decision

[17]     Before me Ms Yardley, counsel for the appellant, indicated that her main concern here was the two and a half years starting point adopted by the District Court.  She acknowledged that it was difficult to argue against some uplift in light of the circumstances prevailing in this case but she said that the starting point imposed was excessive.

[18]     As to this, Ms Yardley referred me to a number of decisions.  The first was R

v Seton-Snowdon6  in which the District Court Judge had imposed a sentence of

15 months’ imprisonment on a charge of burglary where the appellant was found at night in a dwelling house in the bedroom of a 15 year old girl.  The accused had pleaded not guilty but was found guilty by a jury.   On appeal the sentence was reduced by the Court of Appeal to one of nine months’ imprisonment.

[19]     Next, I was referred to a decision of this Court in Leao v Police.7   There, on an appeal from the District Court on charges of burglary and breach of an extended supervision order following a guilty plea, the District Court sentence of 20 months’ imprisonment was quashed and a sentence of 12 months’ imprisonment imposed on the burglary charge and a sentence of 18 months’ imprisonment imposed on the breach of the extended supervision order charge, both to be served concurrently.  In that case, the appellant went onto the neighbour’s property to spy on a female and to commit an indecent act, he also having an extensive history of such behaviours.

[20]     Next, Ms Yardley referred me to the decision in Hayward v Police.8   There, a

starting point of two years’ imprisonment on a burglary charge and two unlawfully being in a yard charges was upheld by this Court.   The appellant had entered the

6      R v Seton-Snowdon CA111/98, 27 May 1998.

7      Leao v Police HC Wellington CRI-2011-485-34, 24 June 2011, Williams J.

8      Hayward v Police [2014] NZHC 2286.

complainant’s property (a woman living on her own) three times.  The first time he climbed a tree, got onto her roof and moved a security camera that the complainant had installed so that it pointed to a neighbouring property instead of protecting the complainant.  The second time, he again climbed onto the roof of the house and the final time he entered the property by walking into the conservatory which led to the back entrance of the house.   The Court noted that the victim was aware of this targeting which was a significant aggravating factor, and the final sentence of two years, five months’ imprisonment was not disturbed on appeal.

[21]     The Court of Appeal decision in R v Ford9 was then referred to.  On charges of burglary and two attempts to make intimate visual images a sentence of two years, three months’ imprisonment imposed in the District Court on appeal was quashed. In its place, a sentence of eight months’ home detention was imposed, it was said, to aid rehabilitation of the appellant that was already underway.  The facts in that case were that the appellant had gone into women’s toilets with a camera and attempted to take photographs of women using the facilities.   He had a long list of previous similar offending, including four convictions since a recent release from prison for similar offending.

[22]     Lastly, Ms Yardley referred me to R v Sipa10 where on one charge of burglary, breaking out of a building and indecent assault, following trial the appellant was convicted and a sentence of three years’ imprisonment imposed.  On appeal to the Court of Appeal, the sentence was reduced to two years and three months’ imprisonment for the appellant who was a first offender.  The facts in this case were that the appellant had entered a dwelling and indecently assaulted a sleeping woman by stroking her legs.

[23]     Turning to that question of an appropriate starting point here, in adopting two years, six months’ imprisonment, in my view Judge Callaghan may have been at the higher end of what was available to him but essentially, as I see it, he made no error here.  In Hayward v Police, a less serious case than the present one, the starting point

adopted was two years’ imprisonment.   And in a further decision considered by

9      R v Ford [2005] NZCA 64.

10     R v Sipa CA405/01, 14 March 2002 (CA).

Judge Callaghan in the District Court, Penitani v Police11 a starting point of two and a half years was upheld on appeal for charges of burglary and indecent assault.  In that case, the appellant had entered the victim’s room while she was asleep, he partially undressed, got into her bed and kissed her.

[24]     Although Penitani did involve contact between the appellant and his victim, unlike the current case, in my judgement, it is of some use here.   But, as to the situations  generally  prevailing  in  the  other  decisions  placed  before  me  by Ms Yardley, to which I have referred above, in my view these were generally less serious than the present case.

[25]     I am satisfied here that the appellant’s culpability is generally at a level slightly above that in Hayward v Police, given the persistent targeting of the victims here.  In Hayward, as I have noted, a starting point of two years’ imprisonment was adopted.  Whilst in the present case the appellant only entered the property once (in comparison  to  three  times  in  Hayward)  when  he  did  enter,  even  on  his  own admission, this involved a serious additional factor in that his intrusion was to the point of trying to enter the locked bathroom where the victim hid.

[26]     In conclusion I find that the starting point adopted by Judge Callaghan of two years’, six months imprisonment, although perhaps at the upper end,  was in an appropriate range here and could not be seen as excessive.

[27]     It was also open to Judge Callaghan to increase the sentence by four months to take into account a range of factors including the fact that the offending occurred while  on  bail,  the  appellant’s  previous  recent  offending,  and  the  fact  that  the appellant was subject to a sentence of intensive supervision which was an especially aggravating feature.

[28]     The risk assessment here, in my view, was also relevant given that it placed the appellant at a high risk of further sexual offending.

11     Penitani v Police [2004] NZHC 1622.

[29]     No issue, of course, can be taken with the maximum 25% discount given for the early guilty plea.

Conclusion

[30]     In summary I find here that the offending on the part of the appellant clearly illustrated a real escalation in seriousness.  There can be little doubt that a deterrent sentence was required, especially when considering the poor response the appellant has  had  to  a  previous  sentence  of  intensive  supervision  imposed  for  similar offending.  And, even if I might have accepted that there was some potential error in the manner adopted by Judge Callaghan to arrive at the sentence finally imposed here,  I  do  not  consider  the  ultimate  sentence  imposed  to  be  outside  the  range available to him.

[31]    Arguments which Ms Yardley for the appellant endeavoured to advance regarding the appellant’s recent prison classification and issues over his eligibility or otherwise for rehabilitation treatment in prison, in my view, have no strict relevance to this appeal.

[32]     For all these reasons I find that the end sentence imposed of two years, three months’ imprisonment  in  all  the  circumstances  prevailing  in  this  case  was  not manifestly excessive. The appeal accordingly is dismissed.

...................................................

Gendall J

Solicitors:

Raymond Donnelly & Co, Christchurch

Copy to Clare Yardley, Christchurch