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settled that s 250(2) of the CPA was not intended to alter the traditional approach to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957.1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 before this Court as to why a sentence of supervision will be unduly disproportionately severe having regard to Mr Clark’s ill health. Curiously,  by  appealing  only  the  supervision  order  component  of  the  sentence, Mr Clark has acknowledged he is well enough to complete the community work. One might have thought that community work would be a more onerous component of the sentence imposed but Mr Clark appears to accept that his health challenges are not such that completing a community work sentence would be disproportionately severe.

[11]     The only evidence before this Court as to Mr Clark’s health issues is his letter to the Court dated 24 September 2014 and a copy of a medical certificate.

[12]     Mr Clark’s letter to the Court records:

The possibility relating to 12 months supervision is most likely to be short lived, due to my health and age. As the case may be I have had mild strokes before and after this offence which has been over a year now.

I also have other symptoms concerning my health conditions, I suffer from leg cramps, varicose veins that have become enlarged and tortuous (twisted), migraine headache can cause intense throbbing or a pulsing sensation in one area of the head.  I also have problems hearing and poor eyesight; I’ve been diagnosed with diabetes March 2012. …   I feel reasonably capable for 50 hours  community  work  a  less  sentence  from  the  one  year’s  probation although not sure with the above events that have occur (sic) to my latest health.

[13]     The medical  certificate simply records  that  Mr Clark  suffers from  hyper tension, varicose veins in his legs and a hearing loss.

[14]     It seems that the District Court Judge did not before him any evidence of

Mr Clark’s health.

[15]     In  the  circumstances  there  is  no  evidence  before  me  to  support  the proposition  that the sentence of 12  months’ supervision  is  disproportionately or unduly severe having regard to Mr Clark’s health.

[16]     The appeal is dismissed.

Moore J

Solicitors:

Crown Solicitor, Auckland

Copy to:

Mr Clark, Auckland