Clarke-Allen v Police HC Palmerston North CRI 2010-454-41

[2010] NZHC 2227

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2010-454-41

CHRISTOPHER CLARKE-ALLEN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 December 2010

Appearances: J Younger for the appellant

B D Vanderkolk for the respondent

Judgment:      13 December 2010

JUDGMENT OF CLIFFORD J

Introduction

[1]      Mr Clarke-Allen appeals against a total sentence of seven months imposed by the District Court at Palmerston North on 14 October 2010.  He says that sentence is manifestly excessive.

Background

[2]      Mr Clarke-Allen is 18 years old.

[3]      On 26 May 2010 he was sentenced by the District Court at Palmerston North to four months community detention on charges of:

CLARKE-ALLEN V POLICE HC PMN CRI-2010-454-41 13 December 2010

(a)      failing to attend community work on 18 December 2009 imposed originally – it would appear – on a charge of wilful damage (CRN

0068);

(b)assault relating to an incident on 23 December 2009 when, being intoxicated, he assaulted a 51 year old man of Indian ethnicity at the door of his home (CRN 5730);

(c)      cultivation of cannabis relating to an incident on 19 January 2010 when the Police found four cannabis seedlings at his  (community detention) address (CRN 0240); and

(d)failing to report on 3 May 2010 to a probation officer as required under  a  sentence  of  intensive  supervision  imposed  for  failing  to comply with another sentence of community work originally imposed

– it would appear – on a charge of being a person under 20 years exceeding the breath alcohol limit (CRN 0259).

[4]      As  regards  CRNs  0259  and  0068,  the  District  Court  also  imposed  an additional sentence of 100 hours community work.

[5]      The  District  Court  then  cancelled  the  original  sentence  of  six  months’ intensive supervision, the breach of which it had just sentenced, and imposed a sentence of six months’ supervision, with conditions, in its place.

[6]      At the same time Mr Clarke-Allen was convicted and discharged on charges of breach of intensive supervision, disorderly behaviour and trespass.

[7]      Mr Clarke-Allen continued to have compliance issues.

[8]      On 25 June 2010 his probation officer applied under s 72 of the Sentencing Act to have the remaining sentence of supervision cancelled and for Mr Clarke-Allen to be re-sentenced on the relevant offending, that is the breach of intensive supervision.

[9]      Mr  Clarke-Allen  was  also  charged  with  five  further  offences  relating  to breaches of those community detention, supervision and community work sentences. These were:

(a)      failing   to   comply   with   a   condition   of   community   detention (Sentencing Act 2002 s 69G(a)) in that on 15 July 2010 he interfered with his electronic monitoring equipment by removing the same from his leg (CRN 0422);

(b)      failing to comply with a condition of supervision (x 3) (Sentencing

Act s 70(a)), in that:

(i)       on 21 June 2010 he failed to report to his probation officer at

Pahiatua as directed (CRN 0425);

(ii)      on 27 July 2010 he failed to report to his probation officer at

Feilding at 12.00pm, but did so at 1.30pm (CRN 0540);

(iii)on 30 July 2010 he failed to attend an alcohol and drug group session (CRN 0541); and

(c)      failing to comply with a condition of community work (Sentencing Act s 71(1)(a)), in that on 5 August he failed to attend community work at Woodville (CRN 0571).

[10]     When Mr Clarke-Allen came before the District Court on 14 October, the Judge  understood  he  was  being  asked  to  consider  cancelling  and  re-sentencing Mr Clarke-Allen not only on the one charge on which he had been sentenced to normal supervision, but also on the four charges on which he had been sentenced on

26 May 2010 to community detention.  At the same time Mr Clarke-Allen was for sentence on the further five (failing to comply) charges.

[11]     The Judge first imposed a total substitute sentence of three months as regards the various charges he erroneously understood were to be re-sentenced.   Given the error as to what the Court was actually re-sentencing on, and effectively with the consent of the Police, Mr Clarke-Allen’s appeal against that part of his sentence is allowed.    The  appropriate  substitute  sentence  on  the  relevant  charge  (failing  to

comply  with  intensive  supervision,  ie  failing  to  report),  is  a  conviction  and discharge, including because Mr Clarke-Allen had served five of the six months of his (new – 26 May 2010) sentence of supervision.

[12]     Turning  to  the  fresh  charges,  the  Judge  imposed  a  further  cumulative sentence of four months.  He considered the charge involving the cutting off of the ankle bracelet as a serious one, and I agree.  He imposed a sentence of three months’ imprisonment for that offending.  He added a further month’s imprisonment for “the other two charges of breach of community work and breach of supervision”, concurrently between themselves but cumulatively on the three months sentence for breach of community detention.  Before me, Ms Younger did not challenge that part of the sentencing exercise.

[13]     Having said that, and to correctly record matters, the relevant charges would appear to be those found in CRNs 0425, 0540, 0541 and 0571.  On that basis, and to the extent necessary, the sentence imposed by the Judge is varied so that a sentence of one month’s imprisonment is imposed concurrently on each of those four charges, to be served cumulatively with the sentence of three months’ imprisonment imposed on CRN 0422.

[14]     In technical terms, therefore, this appeal against sentence is allowed in part, and varied as recorded.

[15]     As this brief judgment may indicate, the factual matrix that the District Court Judge had to confront on 14 October was a complicated one.  It has taken me some considerable time, with the assistance of counsel, to untangle it.  I intend no criticism of the sentencing Judge by allowing this appeal.

[16]     Recognising that factual complexity, and as a precaution which I hope will prove unnecessary, I reserve leave for counsel to raise with me any points of factual correction that may be necessary.

“Clifford J”

Solicitors:   J Younger, P O Box 12-045, Palmerston North for the appellant

Crown Solicitor, Palmerston North for the respondent