Clarke v R - [2011] NZCA 336

IN THE COURT OF APPEAL OF NEW ZEALAND

CA218/2011
[2011] NZCA 336

BETWEEN PAUL LAMBERT CLARKE
Appellant

AND THE QUEEN
Respondent

Hearing: 7 July 2011

Court: Glazebrook, Rodney Hansen and MacKenzie JJ

Counsel: J A Westgate for Appellant
B D Tantrum and M R Walker for Respondent

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…

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.

Continue reading Clarke v R

Details

AGLC: Clarke v R [2011] NZCA 336
Case: [2011] NZCA 336
Decision Date: 22 July 2011

CaseChat Overview and Summary

In the case of Clarke v R, Paul Lambert Clarke appealed against his sentence for intentional damage and wilfully attempting to defeat the course of justice. The appeal was heard by the Court of Appeal of New Zealand on July 7, 2011, with Glazebrook, Rodney Hansen, and MacKenzie JJ presiding. Clarke was represented by counsel J A Westgate, while the respondent was represented by B D Tantrum and M R Walker. Clarke was sentenced by Judge Rollo on March 18, 2011, to eight months of home detention and 200 hours of community work. Additionally, Judge Rollo ordered Clarke to make reparation to the victims and issued a non-association order regarding the two female complainants. Clarke argued that the District Court Judge's sentence was inappropriate or excessive, considering his level of culpability, personal circumstances, relevant case law, and the fact that he had already served one month's home detention and completed 12 hours of community work before the appeal was filed.

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