R v Clarke CA8/02 [2002] NZCA 380 (30 May 2002)

Last Updated: 13 January 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

CA8/02

THE QUEEN

V

NEIL MARTIN CLARKE

Hearing:	27 May 2002
Coram:	Keith J Blanchard J Anderson J
Appearances:	Appellant in person A Markham for the Crown
Judgment: Reasons:	27 May 2002 30 May 2002

REASONS FOR JUDGMENT OF THE COURT DELIVERED BY KEITH J

[1] Mr Clarke applied for special leave to appeal under s144(3) of the Summary Proceedings Act 1957 in respect of a sentence of periodic detention originally imposed in the District Court. At the end of the hearing we announced that leave would be refused. We now give our reasons for that decision.
[2] We set out part of the history of this matter in an attempt to put Mr Clarke’s concerns, as expressed to us, into context. A sentence of seven months periodic detention was initially imposed on him on 1 June 1999 on a conviction for driving while the proportion of alcohol in his blood exceeded the legal limit. He was also convicted of careless driving. The Judge rejected as “entirely unrealistic” the suggestion by Mr Clarke’s counsel that she deal with the matter by fine “given the existence of $12,000 odd already owing in fines”. She did not deal with the fines at that time. That would require other Court action, she said.
[3] Mr Clarke then appealed unsuccessfully to the High Court against his conviction and sentence on the blood alcohol offence. He applied without success both to the High Court for leave to appeal to this Court and to this Court for special leave (R v Clarke CA472/99, 4 April 2000). The periodic detention was to begin on 28 April, but, according to an application of 12 July by the Probation Service, he had not by that later date reported to start the sentence. That application led to a review of the sentence on 28 July by the District Court when the appellant was again represented by counsel. The District Court on that application said this:

I am prepared to cancel that existing sentence and re-impose it with a final warning, and I am going to also remit Mr Clarke’s fines and replace them with the remaining balance of periodic detention available to me, which is five months, making a total of 12 ... .

Clearly the seven month sentence was being re-imposed for the blood alcohol offence.

[4] Mr Clarke appealed to the High Court which treated the appeal as one against the sentence of 28 July. He represented himself. McGechan J set out the essence of the District Court decision (including the reference to remitting fines) and continued:

[4] Twelve months periodic detention is a maximum and with all respect is quite simply too long. Indeed, counsel for Respondent realistically accepted that fact which would have been found in any event. It was suggested by Respondent that the matter should be deferred for an exact figure to be determined, that bearing upon the extent of the added time for substitution in place of fines. I am not prepared to defer this too long delayed matter any further.

[5] Mr Clarke submitted that the 7 months periodic detention originally imposed was too long. Given his previous criminal history, which in this area is extensive, and the circumstances of the offence, I am unable to accept that. It was within the Judge’s discretionary range. The allowance, in my view, should be made in the area of fines remission where indeed this degree of administrative doubt does exist.

[6] Looking at the matter overall, I am satisfied that the imposition of 12 months periodic detention of 28 July 2000 should be quashed and be replaced by a sentence of 9 months periodic detention. There was a final warning given [by the District Court Judge in July]. I accept from the explanation given to me that may have been a little hard, and I do not repeat that warning, but matters have reached the point where if the periodic detention is not served, unless there is some lawful excuse for that, almost inevitably there will be another application for review and a second time around the outcome could be much more serious. I also record, and in the Appellant’s favour, that he appears to be taking steps in relation to counselling and dealing with problems which hopefully will mean there will not be further concerns.

So as a result of that appeal the additional period, to which the remittance of the fines of $12,000 was related, was two months only.

[5] Mr Clarke again applied to the High Court and this Court for leave and special leave to appeal from that decision. Once again the applications failed. The Courts ruled that no question of law arose and there was no reason of general or public importance or of any kind justifying a second appeal (AP169/00 29 September 2000 and R v Clarke CA357/00, 27 November 2000).
[6] On 4 December 2001 the application for leave to appeal to this Court came before another High Court Judge who refused it saying:

[5] ... As I understood the question of law proposed by him was that he should have had the chance some time ago when the fines were imposed (for which he received some sentence of periodic detention) of challenging those fines and seeking remission. He claims he was not given that opportunity. It is difficult to understand how that relates to a question of law in relation to the sentence of 9 months periodic detention, and as I observe the successful appeal to McGechan J was some 14 or 15 months ago.

[6] I cannot divine any point of law relevant to McGechan J’s decision in August 2000 from what Mr Clarke has said to me.

[7] Before us Mr Clarke contended that he should have had the opportunity under s78B of the Summary Proceedings Act 1957 to challenge the fines because he had not, he said, received the notices of the fines which were imposed over a lengthy period when he had been changing addresses. The record shows that those fines were mentioned in June 1999 when he was originally sentenced and in August 2000 when his appeal led to a reduction of the sentence of periodic detention. With that knowledge (at the very least) he did not attempt to challenge the amount of the fines and must be seen as acquiescing in their being remitted. No question of law can possibly arise from the High Court judgment reducing the period in his favour.
[8] There is the further fact that Mr Clarke has, as he told us, completed his sentence of periodic detention. There would be no practical remedy available to him were he to succeed in the proposed appeal against that sentence.
[9] We should also clarify one aspect of that sentence. The major part of it was imposed and continued to be imposed for the drink driving offence. The original sentence of seven months periodic detention for that offence had added to it a further five months (reduced to two months on appeal) in place of the fines.
[10] We agree with the conclusion reached twice in the High Court and once in this Court that no question of law arises from the judgment of McGechan J given on 29 August 2000 and that no reason of general or public importance or other reason exists for a second appeal. At some point there must be an end to this process. Indeed, given the decision of this Court on 27 November 2000 on the same application for special leave, we do not have jurisdiction to deal with this second application.
[11] It was for those reasons that leave to appeal was refused.

Solicitor:
Crown Law Office, Wellington