| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA218/2011 [2011] NZCA 336 |
| BETWEEN PAUL LAMBERT CLARKE |
| AND THE QUEEN |
| Hearing: 7 July 2011 |
| Court: Glazebrook, Rodney Hansen and MacKenzie JJ |
| Counsel: J A Westgate for Appellant |
| Judgment: 22 July 2011 at 10.00 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by Glazebrook J)
Introduction
Mr Clarke pleaded guilty to one count of intentional damage[1] and one count of wilfully attempting to defeat the course of justice.[2] On 18 March 2011, Judge Rollo sentenced him to eight months’ home detention and 200 hours’ community work. Judge Rollo also ordered reparation and made a non-association order in respect of two female complainants.
[1] Under s 269(2)(a) of the Crimes Act 1961.
[2] Under s 117(c) of the Crimes Act 1961.
Mr Clarke appeals against his sentence on the basis that the District Court Judge imposed a sentence that was either inappropriate or manifestly excessive having regard to:
(a) his level of culpability;
(b) his personal circumstances;
(c) relevant case law applicable to this sort of offending; and
(d)the fact that Mr Clarke has now served one month’s home detention, and completed 12 hours’ community work prior to his appeal being filed. Reparation has also been paid in full.
Furthermore, Mr Clarke argues that the District Court Judge placed too much emphasis on denunciation and deterrence. Mr Clarke also points to the effect of home detention on his business. Mr Clarke’s business involves supervising heavy machinery at various sites. While he has been able, while on home detention, to attend to his administration tasks at his office, he has had to employ others for site visits.
Background
On 19 February 2010, Mr Clarke used a sharp instrument to scratch along the left hand side of a Holden Commodore vehicle. The vehicle was driven by the first complainant (an ex-partner of his) and belonged to her partner. He caused $805.50 damage to the vehicle.
On or about 25 February 2010, Mr Clarke asked the second complainant (a different ex-partner of his) to attend the police station attesting to his false alibi in relation to the intentional damage of the vehicle. He paid her $700 on two separate occasions. She advised the police that she had been asked by Mr Clarke to make a false statement.
Sentencing remarks
The Judge set out the facts and then identified that on numerous occasions it has been observed that the offence of wilfully attempting to pervert the course of justice strikes at the very heart of the administration of justice and a condign sentence ought to be imposed.
Judge Rollo addressed Mr Clarke’s specific concern about being inconvenienced by a sentence of home detention. He said that:
[7] [A sentence which removes that inconvenience] of course focuses, Mr Clarke, on what would be beneficial for you. Sentencing is about your being accountable for what you have done and accepting responsibility for…
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- Clarke v R [2011] NZCA 336
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- [2011] NZCA 336
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CaseChat Overview and Summary
The court had to decide whether the District Court Judge's sentence was appropriate or manifestly excessive, taking into account Clarke's level of culpability, personal circumstances, relevant case law, and the effect of the sentence on his business. Clarke also argued that the District Court Judge placed too much emphasis on denunciation and deterrence and that home detention negatively affected his business, which involved supervising heavy machinery at various sites. The court found no error in Judge Rollo's approach to setting the starting point, and the end sentence was within range. The court also noted that the effect of the sentence on Clarke's business had been considered by Judge Rollo and that there might be an arrangement for appropriate supervision during site visits. Therefore, the appeal was dismissed.
In conclusion, the Court of Appeal of New Zealand dismissed Clarke's appeal against his sentence for intentional damage and wilfully attempting to defeat the course of justice. The court found no error in Judge Rollo's approach to setting the starting point for sentencing, and the end sentence was within range. The court also noted that the effect of the sentence on Clarke's business had been considered and that there might be an arrangement for appropriate supervision during site visits. Therefore, the appeal was dismissed, and Clarke's sentence stands as imposed by Judge Rollo.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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