Clarke v R [2011] NZCA 336 (22 July 2011)

Court of Appeal of New Zealand

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Clarke v R [2011] NZCA 336 (22 July 2011)

Last Updated: 26 July 2011

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

[1] 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.
[2] 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.

[3] 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

[4] 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.
[5] 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

[6] 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.
[7] 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 your actions. It is about deterrence and denunciation of a blatant attempt to pervert the course of justice. It is about a general deterrence as well so that other people in the community know that if they take similar steps to effectively tamper with witnesses to criminal offending, then they will lose their liberty. So I mark the practical effect that the sentence I intend to impose will have on your business but it seems to me, Mr Clarke, that it is a business of such a size and vibrancy that it can afford for you to delegate to someone else. If that is not so, then that is one of the inevitable consequences of serious criminal offending and you must accept responsibility for that because you are standing here today because of your criminal actions and for no other reasons.

[8] So it is not about what is convenient to you. It is about what the appropriate sentence at law is.

[8] Judge Rollo then identified relevant authorities. He considered Barratt[3] and to a lesser extent Geary[4] and Gemmell[5] to be on all fours with Mr Clarke’s case. The Judge therefore set a starting point of 18 months’ imprisonment on the lead offence of wilfully attempting to pervert the course of justice. There was an uplift of two months to take into account the criminal damage charge. The Judge deducted three months for a late guilty plea.
[9] The Judge then imposed the sentence of eight months’ home detention. The Judge, in also imposing the 200 hours’ community work, said: “[t]hat is an opportunity for you to put something of value back into the community and of course to undertake structured activity during the course of home detention”.
[10] Reparation was ordered on the criminal damage charge (which has been paid). A non-association order was made with regard to both complainants.

Our assessment

[11] We see no error in Judge Rollo’s approach to setting the starting point. This was serious offending. It follows that the end sentence was within range. We note the case of Waters[6] referred to us by Mr Westgate on behalf of Mr Clarke. In that case, the reduction from nine months’ home detention to six months was because of mitigating factors which had not been taken into account by the sentencing Judge and which are not present in this case.
[12] As to the effect on Mr Clarke’s business of a sentence of home detention, this was specifically considered by Judge Rollo. Moreover, from information provided (at our request) after the hearing, it may be that some arrangement for appropriate supervision while on-site visits could be arranged. Even if that were not the case, however, we do not consider this would justify a different sentence for the reasons Judge Rollo gave.[7]

Result

[13] The appeal is dismissed.

Solicitors:
Crown Law Office, Auckland for Respondent

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[1] Under s 269(2)(a) of the Crimes Act 1961.
[2] Under s 117(c) of the Crimes Act 1961.

[3] R v Barratt CA164/01, 27 August 2001.
[4] R v Geary CA181/97, 24 July 1997.
[5] R v Gemmell CA257/96, 2 October 1996.

[6] Waters v R [2011] NZCA 267.
[7] See at [7] above.