Clode v The King - [2024] NZHC 1605

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-113

[2024] NZHC 1605

BETWEEN
JONATHON JAMES CLODE

Appellant

AND

THE KING

Respondent

Hearing: 13 June 2024

Appearances:

Appellant in Person

C L Fiennes for Respondent

Judgment:

18 June 2024

JUDGMENT OF CULL J

[1] This appeal concerns a mathematical error, which occurred in the imposition of a new sentence of community detention after the sentence of home detention was cancelled. On 7 September 2023, Mr Clode was sentenced to eight months’ home detention after being convicted on charges of:

(a)Unlawfully being in an enclosed yard;1

(b)Wilful damage;2

(c)Unlawfully taking a motor vehicle;3 and

(d)Theft of property worth more than $1,000.4

1      Summary Offences Act 1981, s 29(1)(b) — maximum penalty of three months’ imprisonment or a $2,000 fine.
2      Section 11 — maximum penalty of three months’ imprisonment or a $2,000 fine.
3      Crimes Act 1961, s 226(1) — maximum penalty of seven years’ imprisonment.
4      Sections 219 and 223(b) — maximum penalty of seven years’ imprisonment.

Clode v R [2024] NZHC 1605 [18 June 2024]

[2] In his sentencing notes, Judge Crosbie granted leave to Mr Clode to apply four months into his sentence to have the sentence cancelled and converted into community detention and supervision with a night-time curfew.

[3] Mr Clode took advantage of this opportunity granted to him and filed an application later that year seeking the variation of his sentence. On 26 January 2024, after Mr Clode had served four and a half months of his sentence of home detention, an order was made by another District Court Judge, in Judge Crosbie’s absence, cancelling the sentence of home detention. What is at issue in this appeal is the District Court’s imposition of a sentence of four months and 14 days’ community detention and supervision for six months from 26 January 2024.

[4] On the original sentence of eight months’ home detention commencing on 8 September 2023, the end sentence date was 8 May 2024. With the imposition of the new sentence, Mr Clode’s community detention ends on 9 June 2024 and the supervision ends on 26 July 2024.

[5] Mr Clode seeks that the re-sentence be corrected, as it has extended his original sentence of eight months’ home detention to nine months of home and community detention.

The offending

[6] At about 8.15 am on 21 March 2022, the victim of this offending received a notification that the CCTV camera in her back garden had detected movement. Upon reviewing the live feed from the camera, she found that Mr Clode had jumped over her fence into her garden.

[7] The victim spoke through the camera telling Mr Clode to get off the property. In response, he struck the camera from the wall.

[8] At 8.25 am the victim drove her vehicle to the address, parking it in the driveway. She locked the car before entering the address. After around two minutes the victim exited her house and…

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 Clode v The King

Details

AGLC: Clode v The King [2024] NZHC 1605
Case: [2024] NZHC 1605
Decision Date: 18 June 2024

CaseChat Overview and Summary

The Court heard an appeal by Jonathon James Clode against the sentence imposed by the District Court, which he considered to be erroneous. The appeal concerns a mathematical error that occurred when his sentence of home detention was cancelled and converted to community detention. The District Court imposed a sentence of four months and 14 days of community detention, which extended his original sentence of eight months of home detention by one month. Clode sought to have the sentence corrected as it extended his original sentence beyond the intended eight months. The Crown argued that the overall sentence was not manifestly excessive, and community detention need not necessarily be substituted on a "one for one" basis with home detention. The Court held that the District Court had not intended to extend the original sentence and that the imposition of community detention for a period that extended the sentence by one month constituted an error. The Court concluded that an appellate judge must correct a mathematical error in sentencing and imposed the corrected sentence of four months of community detention, which expired on 8 May 2024, as per the original sentence. The sentence of six months of supervision remained unchanged. The appeal against sentence was allowed, and the sentence of four months and 14 days of community detention was set aside.

Orders