Clarke v Police - [2015] NZHC 1692

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 Respondent

Judgment:

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…

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: [2015] NZHC 1692
Decision Date: 22 July 2015

CaseChat Overview and Summary

Neil Martin Clarke appeals against his sentence of 10 months home detention, which was imposed by Judge Tuohy in the Wellington District Court on 11 June 2015. Clarke was sentenced on one charge of using a forged document and five charges of dishonest use of a document, which were referred to as the “benefit fraud” charges. Clarke was also re-sentenced on 2012 charges of wilful trespass, wilful damage, and assaulting a police officer. Clarke contends that the starting point of 20 months’ imprisonment was too high, that a discount should have been given for rehabilitative steps he took prior to sentencing, that the uplift of two months for previous offending was excessive, and that the sentence was, therefore, manifestly excessive. Clarke also sought a variation of his home detention sentence to permit him to travel to Auckland for employment training. The court found that the starting point adopted by Judge Tuohy was clearly within the available range for the offending of this kind, that the uplift for previous convictions was justified, and that the sentence imposed was within range. The court also found that any adjustment that might be made to the sentence on account of Clarke’s rehabilitative steps would be no more than minor. The court concluded that the appeal against sentence should be dismissed. The court also confirmed that Clarke’s outstanding fines are to be written off.

Orders