Clarke v Department of Corrections

[2016] NZHC 448

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2016-485-16 [2016] NZHC 448

BETWEEN

NEIL MARTIN CLARKE

Appellant

AND

DEPARTMENT OF CORRECTIONS Respondent

Hearing:	15 March 2016
Counsel:	Appellant in Person A R T Garrick for Respondent
Judgment:	15 March 2016

JUDGMENT OF SIMON FRANCE J

[1]      Mr Clarke appeals the refusal of the District Court to cancel the remaining part  of  a  10 month  home  detention  sentence  to  which  Mr Clarke  is  subject. Mr Clarke  wants  greater  capacity to  work  than  is  being  afforded  him  by those administering his home detention sentence.  There have been numerous challenges to the sentence and its  administration.   The history of them is summarised in the judgment under appeal and I do not repeat it.1

[2]      There is no appeal right from this decision.  If the application is granted and a new sentence imposed, that may be appealed.2    But a refusal is not appealable.  It just means the existing sentence continues.  That sentence in this case has already been the subject of an unsuccessful appeal to this Court and unsuccessful application

to the Court of Appeal for leave to bring a further appeal.

1      Department of Corrections v Clarke [2016] NZDC 3537.

2      Sentencing Act 2002, s 80M.

CLARKE v DEPARTMENT OF CORRECTIONS [2016] NZHC 448 [15 March 2016]

[3]      Had there been jurisdiction, I would have declined the appeal: (a)     there is only three weeks to go on the sentence;

(b)the proposed alternative sentence of community detention affords inadequate protection  without  other aspects  such as  a sentence of supervision;

(c)      the  remaining  period  of  the  existing  sentence  is  already  itself  a substituted sentence;

(d)the statutory test in s 80F(1)(d)(ii) is not made out.  I am not satisfied the existing sentence is no longer necessary in the interests of the community.  It is a sentence confirmed on appeal, and there is nothing in the present situation that merits cancelling it.  It should be served in the normal way.

[4]      The appeal is declined for lack of jurisdiction.

Simon France J