Clarke v Police
[2015] NZHC 1692
•22 July 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2015-485-36 [2015] NZHC 1692
BETWEEN NEIL MARTIN CLARKE
Appellant
AND
NEW ZEALAND POLICE Respondent
CRI-2015-485-38
BETWEEN NEIL MARTIN CLARKE Appellant
ANDMINISTRY OF SOCIAL DEVELOPMENT Respondent
Hearing: 21 July 2015 Counsel:
S R Lack for Appellant
A R T Garrick for RespondentJudgment:
22 July 2015
JUDGMENT OF ELLIS J
I direct that the delivery time of this judgment is
3 pm on the 22nd day of July 2015
Solicitors: Melanie Baker, Barristers and Solicitors, Lower Hutt, for Appellant
Crown Solicitors, Wellington, for Respondents
CLARKE v NEW ZEALAND POLICE [2015] NZHC 1692 [22 July 2015]
[1] On 11 June 2015 Mr Clarke was sentenced in the Wellington District Court1 to nine months’ home detention after pleading guilty to one charge of using a forged document2 and five charges of dishonest use of a document.3 I shall refer to these as the “benefit fraud” charges.
[2] Also on 11 June 2015 Mr Clarke was resentenced in relation to 2012 charges of wilful trespass, wilful damage and assaulting a police officer (x 3). An additional one month’s home detention was substituted for the original sentence of nine months’ intensive supervision and 200 hours of community work.
[3] He now appeals the combined total sentence of 10 months home detention.
Background
[4] Because Mr Clarke’s combined sentence relates to two separate tranches of
offending, the relevant background is a little complex.
The 2012 charges
[5] Mr Clarke was sentenced (to nine months’ intensive supervision and
200 hours of community work) on the 2012 charges by Judge Woolf in the Tauranga District Court.4 I do not need to go into the facts giving rise to those charges, other than to note that Mr Clarke’s consumption of alcohol played a large part in what took place. He appealed both his conviction and sentence but his appeals were dismissed by Collins J on 8 May 2013.5 His Honour said in relation to the sentence appeal:
[24] In my assessment, the sentence imposed upon Mr Clarke was very reasonable. Indeed, it could be described as being generous to Mr Clarke.
[25] Mr Clarke spoke to me from the body of the Court and asked me to adjourn his sentencing appeal so that he could complete the Bridge Programme, which he is undertaking to address his alcohol issues.
[26] I am delighted that Mr Clarke is taking real steps towards addressing his alcohol problems. The fact that Mr Clarke is attending the Bridge Programme is an indication that he may have taken aboard the remarks
1 Ministry of Social Development v Clarke [2015] NZDC 10867.
2 Crimes Act 1961 s 257(1). Maximum penalty 10 years’ imprisonment.
3 Crimes Act 1961 s 228(b). Maximum penalty seven years’ imprisonment.
4 Police v Clarke DC Tauranga CRI-2012-070-1181, 3 July 2012.
5 Clarke v Police [2013] NZHC 1014.
contained in the final paragraph of Judge Wolff's sentencing decision, in which Judge Wolff warned Mr Clarke that he was heading to prison unless he curbed his attitude and his abuse of alcohol.
[27] However, Mr Clarke was sentenced on 3 July 2012. There have been a number of delays in having Mr Clarke's appeal against conviction and sentence heard. In my assessment, it is now time for Mr Clarke to serve the sentence imposed by Judge Wolff.
[6] Between April and June 2013 Mr Clarke completed the Salvation Army Bridge Programme. It is not disputed that he “self-referred” in an attempt to get help with his alcohol problems.
[7] In February 2014 Mr Clarke applied under ss 54K(3)(b) and 68(3)(b) of the Sentencing Act 2002 (the SA) to cancel his 2012 sentence on the grounds that he had voluntarily completed the Salvation Army Bridge Programme.
The benefit fraud charges
[8] As far as the benefit fraud charges are concerned, the starting point is that Mr Clarke has received an invalid’s benefit since 2003. But between 12 June 2010 and 1 March 2013 he used multiple identities to claim multiple other benefits. The total overpayment received by him was $41,214.92.
[9] The benefit fraud charges were laid in October 2013, although the respondent’s investigation had begun some time earlier. In April 2014 Mr Clarke applied to be discharged under s 147 of the Criminal Procedure Act 2011 (the CPA) but this was declined. An appeal against that decision remains pending.
The sentence indication and the sentencing
[10] As I have said, Judge Tuohy’s sentence indication on 13 March 2015 related both to the benefit fraud charges and to Mr Clarke’s application for review in relation to his sentence on the 2012 charges.6
[11] As far as the benefit fraud was concerned, Judge Tuohy identified the specific aggravating features of the offending identified as follows:
6 Ministry of Social Development v Clarke DC Wellington CRI-2013-085-011796, 13 March
2015.
(a) sophistication and premeditation of the fraud; (b) the quantum defrauded; and
(c) the extended period of time over which the offending took place.
[12] The Judge then adopted a starting point of 20 months’ imprisonment which he increased by two months for Mr Clarke’s “very full conviction list”, which included a small number of historic convictions for dishonesty offending. He indicated that a four month (18 per cent) discount for a plea of guilty would be appropriate. He expressly noted Mr Clarke’s “inability to pay reparation at other than a ludicrous amount” (payments of $2.00 a week were at some point agreed with the respondent). In the end, the Judge indicated that a sentence of 18 months’ imprisonment or nine months’ home detention (if there was a suitable address) was likely.
[13] No express reasoning is included in the decision in relation to the “re- sentence” issue. The Judge simply added a further month’s home detention and said that “outstanding fines would be rolled into that”. He concluded by saying:7
Mr Clarke, I am aware has a range of different issues which have been referred to by his counsel, both relating to substance abuse and mental health issues, and I would expect well thought out and appropriate conditions to be imposed as part of the home detention sentence either during it and possibly as post detention conditions as well. If the sentence indication is accepted, then I would get another report and expect those things to be considered in the report and appropriate recommendations to the Court.
[14] In mid May 2015 a document entitled Comprehensive Alcohol and Drug Assessment Report about Mr Clarke was prepared by Mr John Duncan, who is a registered nurse and an alcohol and drug counsellor. This document was made available to the Court for sentencing purposes. The report confirms that Mr Clarke “meets nine DSM V criteria for a Substance Use Disorder which indicates a severe Substance Use Disorder with regard to his use of alcohol” and records (inter alia) that:
In the past Mr Clarke has engaged with Community Alcohol and Drug Service (CADS). He has also had individual counselling with Addictions Counsellor Mr Roger Brooking and is a regular attendee at AA meetings. In April 2013 he graduated from the Bridge Programme in Wellington. He expressed a dissatisfaction with the programme there. His hospital records, obtained with Mr Clarke’s consent, indicate that he also attended The Bridge on five previous occasions both on an in and outpatient basis between 1993 and 2000. He is currently engaged with Care NZ for counselling and has been seeing his counsellor there weekly since January 2015. His counsellor indicated that he had also attended the Intensive Outpatient Programme for a two week period earlier this year, but had been unable to continue to completion due to outside commitments. He did, however, express a willingness to complete this programme.
[15] Mr Duncan said that Mr Clarke displays a “reasonable degree of motivation” to address his use of alcohol and has undertaken steps on many occasions to do so. He notes that Mr Clarke has a “disputatious” aspect to his personality which has caused him problems but that he is keen to undertake psychological work to resolve this. His conclusion was that it is of paramount importance that his counselling with Care NZ and his attendance at AA continue. A number of specific recommendations on similar lines are made.
[16] Following this, Mr Clarke “accepted” the sentence indication and pleaded guilty. On 11 June 2015 and Judge Tuohy sentenced Mr Clarke in accordance with it. The Judge said that the home detention sentence was to carry the condition that Mr Clarke was to “attend and complete any counselling treatment or programme as recommended by the assessment, as directed by and to the satisfaction of a probation officer”.
[17] Mr Clarke immediately filed an appeal against sentence and also an application for bail pending the appeal. The principal reason for the application for bail appears to have been that Mr Clarke had an opportunity to travel to Auckland for a week’s training that would enable him to get a job in Wellington, and thus to assist in his rehabilitation prospects.
[18] Bail was nonetheless declined by Judge Hobbs on 16 June and that decision was upheld by Collins J on 18 June.8 In the concluding paragraph of his judgment Collins J said:
[26] In reaching this conclusion, however, I note Mr Clarke is seeking to travel to Auckland next week to undergo training for a job he has been offered. It is for the probation service to determine if Mr Clarke’s prospects are genuine, and if so, whether he should be permitted to go to Auckland. In view of Mr Clarke’s long history of unemployment it would be unfortunate if his prospects of employment were dashed because of the effect of the sentence of home detention. I therefore urge the probation service to consider if there is a way Mr Clarke can attend his job training programme in Auckland next week.
Grounds for appeal
[19] On behalf of Mr Clarke, Mr Lack submitted that:
(a) the starting point of 20 months’ imprisonment was too high;
(b)a discount should have been given for rehabilitative steps Mr Clarke took prior to sentencing (his voluntary participation in the Bridge Programme and his regular attendance at AA meetings);
(c) the uplift of two months for previous offending was excessive; and
(d) the end sentence was, therefore, manifestly excessive.
[20] At the end of the hearing of the appeal Mr Lack also advised that he was also (or alternatively) instructed to seek a variation of Mr Clarke’s home detention sentence to permit him to travel to Auckland next week to attend employment training of the same kind that was in issue at the time of his bail application and appeal. I was shown a document that suggests that flights have, in fact, already been booked to Auckland for that purpose, but under the name of Neil Foster. When I raised a query about this I was further advised that Mr Clarke had changed his name by deed poll to “Neil Foster” a few years ago.
Approach on sentence appeal
[21] An appeal against sentence is brought under s 244 of the CPA. Section 245 of the CPA makes it clear that the acceptance of a sentence indication does not preclude an appeal against sentence. Nor (in my view) should it count in any way against a meritorious appeal.
[22] Section 250(2) provides that the High Court must allow the appeal if it is satisfied that:
(a) for any reason there is an error in the sentence imposed on conviction;
and
(b) a different sentence should be imposed.
[23] A different sentence should be imposed when the appellate Judge believes a different type of sentence should be imposed or the length of sentence should be altered but not in a way that amounts to a minor adjustment. In any other case the Court must dismiss the appeal.
[24] It is on that basis that I address the submissions made on behalf of Mr Clarke.
Starting point
[25] I was referred to a number of other dishonesty sentencing decisions by both Mr Lack and Ms Garrick for the Crown which were said in varying degrees to be either similar or dissimilar to the present case.9 In the end, however, I find these other decisions of limited assistance. The signal point is that the starting point adopted by Judge Tuohy was clearly within the available range for offending of this kind. Indeed, Mr Lack did not really seek to persuade me otherwise. Accordingly I do not propose to consider this ground further.
Uplift for previous convictions
[26] Nor do I consider that there can be any real quibble with the uplift of two months to reflect Mr Clarke’s prior offending. While I accept that the previous dishonesty convictions were in 2001 (two) and 1993 (one), his criminal record is nonetheless substantial. It cannot fairly be said that the uplift involves re-punishing Mr Clarke for those convictions. It seems that the benefit fraud offending continued
while Mr Clarke was subject to the sentence imposed upon him for the 2012
9 Igal v Ministry of Social Development HC Wellington CRI-2010-485-114, 17 November 2010; Huirua v Ministry of Social Development [2013] NZHC 2785; and Maa v Ministry of Social Development [2013] NZHC 1846.
offending.10 The uplift could also fairly be seen as a reflection of a greater than
usual need for deterrence in Mr Clarke’s case.
Discount for rehabilitative steps
[27] From the background narrative I have set out above it is clear beyond doubt that alcohol abuse is, indeed, one of the principal causes of Mr Clarke’s unhappy offending history. It is equally clear that unless and until he is able to address his problem his offending will almost certainly continue. In my view Mr Clarke himself does recognise this and he is to be commended for, and encouraged in, his endeavours to confront his demons.
[28] I acknowledge that s 10(1)(e) of the SA requires a sentencing judge to take into account “any remedial action taken or proposed to be taken by the offender in relation to the circumstances of the offending”. Mr Clarke’s attempts to address his alcoholism seem to me to fall within that provision. Section 10(2) also requires the court to consider whether or not the relevant measure or action taken or proposed to be taken was “genuine” and “capable of fulfilment”. In that regard it seems to me to be relevant that:
(a) Mr Duncan has assessed Mr Clarke as having a “reasonable degree of
motivation” to tackle his alcohol addiction; but
(b) Mr Clarke’s quite extensive past attempts to do so have tended to be
successful only in the short term, or not at all.
[29] It is not disputed that no express account was taken by Judge Tuohy of Mr Clarke’s participation in the Bridge Programme in 2013 or his ongoing commitment to AA.11 Mr Lack submitted that these voluntary rehabilitative steps should have been recognised as a mitigating factor worthy of a 10 to 15 per cent
discount.
10 See R v Lefupa (1997) 15 CRNZ 262 (CA) at 265.
11 Mr Clarke advised during the hearing that he was still attending AA twice a week.
[30] I accept that in the circumstances it would have been open to the Judge to take account of Mr Clarke’s voluntary taking of remedial steps in that way. But, in the end, I am not satisfied that the fact that he did not do so means that there is a vitiating error or (if there was such an error) that a different end sentence should be imposed. More particularly, in light of my rejection of Mr Clarke’s other grounds of appeal, I consider that any adjustment that might now be made to his sentence on account of s 10(1)(e) factors would be no more than minor. The reality is that the end sentence imposed by the Judge for the benefit fraud offending was well within range.
Resentencing
[31] Mr Clarke was sentenced for the 2012 charges on 3 July 2012. By virtue of s
345 of the SA that sentence ceased to run from the date upon which his appeal was filed. The sentence resumed on the date upon which his appeal was dismissed. Mr Clarke’s sentence therefore began to run again from the date of Collins J’s decision declining his appeal against sentence, namely 8 May 2013.12
[32] By the time of the sentence indication, some 10 months later, Mr Clarke had completed only three of the 200 hours community service ordered.
[33] While I accept that a sentence of home detention imposed in relation to the benefit fraud charges probably necessitated the imposition of a substituted sentence in relation to the 2012 charges, there would otherwise (in my view) have been no real basis for interfering with Judge Tuohy’s sentence at all. Mr Clarke’s applications under ss 54K(3)(b) and 68(3)(b) of the SA were predicated on Mr Clarke’s completion of the Bridge Programme. Collins J had already expressly considered and rejected the submission that Mr Clarke’s completion of that Programme should have any bearing on his 2012 sentence. Accordingly there seems to me to be no basis upon which the District Court should have entertained simply
cancelling that sentence (which is what Mr Clarke sought).
12 Clarke v Police, above n 5.
[34] Two hundred hours is equivalent to five 40 hour weeks of work. As I have said, Mr Clarke has effectively completed none of this work over a 10 month period. In substituting a sentence of one month’s home detention, Judge Tuohy also indicated that Mr Clarke’s outstanding fines should be wiped, a matter which is presumably of some considerable benefit to Mr Clarke (and loss to the community). I can see no basis upon which I could disagree with this aspect of the sentence.
Variation of home detention for purposes of employment training
[35] Like Collins J, I consider that there are obvious benefits in Mr Clarke being able to get a job and thus to undertake training for that purpose. But also like Collins J, I consider that any potential participation by Mr Clarke in an employment training programme and any travel required for that purpose is a matter for the Probation Service after assessing the proposal on its merits. Mr Clarke’s apparent use of a different name to make the travel booking and his access to sufficient funds to pay for the flights may warrant inquiry in that context. In any event, I decline to make any orders in that respect.
Conclusion
[36] The appeal against sentence is dismissed, for the reasons I have given.
[37] At the request of counsel and for the avoidance of doubt and confusion, I
confirm and record that Mr Clarke’s outstanding fines are to be written off.
“Rebecca Ellis J”
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