Clark v Police - [2014] NZHC 2806

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000325 [2014] NZHC 2806

KENNETH GEORGE WILLIAM CLARK Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 10 November 2014

Appearances:

Appellant in Person
Elizabeth Rutherford for the Respondent

Judgment:

12 November 2014

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by on 12 November 2014 at 11:30am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

CLARK v NEW ZEALAND POLICE [2014] NZHC 2806 [12 November 2014]

[1] On 24 September 2014 Mr Clark was sentenced to 12 months’ supervision and 50 hours’ community work in relation to a charge of common assault (s 196 of the Crimes Act 1961).

[2] The background to the charge is that in November 2013 Mr Clark had an argument with his granddaughter over the cooking of the evening meal. The argument escalated and Mr Clark grabbed his granddaughter from behind and pulled her backwards. She resisted. Mr Clark, with one arm around her neck and the other around her waist, pulled her away and into another room. She suffered some minor bruising and a skin abrasion to her neck.

[3] Mr Clark appeared before Judge Fraser in the Auckland District Court. He

was sentenced to 50 hours’ community work and 12 months’ supervision.

[4] Mr Clark now appeals the 12 month supervision order but not the community work sentence. The grounds of the appeal are that by reason of Mr Clark’s ill health, which appears to have deteriorated over the last 12 months, the appeal should be allowed because it is unlikely he will survive to be able to complete it.

[5] As this is a sentence appeal, s 250 of the Criminal Procedure Act 2011 (“the

CPA”) applies.

[6] This requires the High Court on appeal to allow the appeal if it is satisfied:

(a) for any reason there is an error in the sentence imposed on conviction;

and

(b) a different sentence should be imposed.

[7] It is now well settled that s 250(2) of the CPA was not intended to alter the traditional approach to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957.1

[8] As I understand Mr Clark’s submissions, it is that he is unlikely to survive the

expiration of the 12 month supervision period.

[9] Ill health is a factor which may be taken into account in the sentencing exercise. The extent to which age and ill health may be treated as mitigating factors and the amount of discount given will vary according to the particular circumstances of the offender and of the offending. Because the circumstances may be so variable the Court of Appeal has recognised that such an assessment is very case specific and whether a discount is appropriate and the amount of the discount is a matter of fact
and degree which turns on the particular circumstances of the case.2

[10] There is no evidence…

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.

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Details

Case: [2014] NZHC 2806
Decision Date: 12 November 2014

CaseChat Overview and Summary

In the case of Clark v Police, the appellant, Kenneth George William Clark, sought to appeal against a sentence imposed by the Auckland District Court. The sentence was handed down on 24 September 2014, following Mr Clark's conviction for common assault under section 196 of the Crimes Act 1961. The assault occurred in November 2013, when Mr Clark grabbed his granddaughter during an argument about the cooking of the evening meal, causing her to suffer minor injuries. The District Court Judge sentenced Mr Clark to 50 hours of community work and 12 months of supervision. Mr Clark appealed only the 12-month supervision order, arguing that due to his deteriorating health, it was unlikely that he would survive to complete the term of supervision.

The central legal issue for the High Court to determine was whether the 12-month supervision order was disproportionately severe considering Mr Clark's health conditions. Under section 250 of the Criminal Procedure Act 2011, the High Court on appeal must allow the appeal if it is satisfied that there is an error in the sentence imposed and that a different sentence should be imposed. The Court noted that ill health is a factor that may be considered in sentencing, and that the extent to which it may be treated as a mitigating factor is highly case-specific. However, the Court found that there was insufficient evidence before it to conclude that the supervision order was disproportionately severe in light of Mr Clark's health issues. The Court considered that Mr Clark's letter and medical certificate, which listed hypertension, varicose veins, and hearing loss, did not provide sufficient grounds to support the appeal.

The High Court dismissed the appeal, finding that there was no evidence to suggest that the 12-month supervision order was unduly severe considering Mr Clark's health. The Court also noted that Mr Clark had not appealed the community work component of the sentence, which he appeared to accept was manageable despite his health challenges. As a result, the appeal was dismissed, and the original sentence stood.

Orders