Clarke v Department of Corrections [2012] NZHC 2257 (4 September 2012)

Last Updated: 11 September 2012

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2011-463-0055 [2012] NZHC 2257

BETWEEN NEIL MARTIN CLARKE Appellant

AND DEPARTMENT OF CORRECTIONS Respondent

Hearing: (on the papers)

Counsel: N M Clarke, in person, Appellant

S T Simmers for Respondent

Judgment: 4 September 2012

_{JUDGMENT (NO. 2) OF HEATH J}

This judgment was delivered by me on 4 September 2012 at 11.00am pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, PO Box 740, Rotorua

Copy to:

_{Appellant in person}

CLARKE V DEPARTMENT OF CORRECTIONS HC ROT CRI 2011-463-0055 [4 September 2012]

Introduction

[1] Mr Clarke appeals against conviction and sentence on a charge of breaching the conditions of a home detention sentence, on or about 8 June 2011. The home detention sentence was initially imposed in the District Court on 7 December 2010. The term of the sentence was reduced following an appeal to the High Court. The relevant part of the sentence was served at Mr Clarke’s mother’s home in Matamata.

[2] On 9 June 2011, Mr Clarke was brought before the District Court at Tokoroa on a charge of breaching the terms of his home detention sentence. The relevant condition was one directed at the non-consumption of alcohol. That term was imposed to respond to the nature of Mr Clarke’s recidivist behaviour, in driving in excess of the breath or blood alcohol concentrations permitted by law. Judge McGuire declined bail and remanded Mr Clarke in custody until 4 July 2011.

[3] Mr Clarke was brought back before the District Court on 4 July 2011. At that time, Mr Clarke entered a guilty plea to the charge. Judge Weir convicted him and imposed a sentence of three weeks imprisonment, which had been served by the date of sentence.[1] It is from that conviction and sentence that the appeal is brought.

The basis of the conviction appeal

[4] While Mr Clarke entered a plea of guilty to the charge, one of his grounds of appeal was based on s 106 of the Sentencing Act 2002. That provision empowers the Court to discharge an offender without conviction. Section 107 identifies the circumstances in which such a discharge might be ordered:

107 Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[5] The appeal first came before me on 2 May 2012. In the absence of an appearance from Mr Clarke (whom I then believed to be known as Mr Gilbert) I dismissed the appeal.[2] Subsequently, Mr Clarke sought leave to appeal to the Court of Appeal. Having heard from Mr Clarke and counsel for the Department of Corrections, on 19 July 2012, I treated that application as one seeking recall of my earlier judgment and reinstating the appeal. I made orders to that effect as I was concerned that there were matters that Mr Clarke was entitled to ask the Court to consider that I had not had before me on 2 May 2012.[3] I established a timetable for further submissions and supporting documentary evidence to be filed. I indicated that I would determine the appeal afresh, on the papers.[4]

[6] Following receipt of submissions from Mr Clarke on 9 August 2012, I issued a Minute asking for submissions from counsel for the Department of Corrections on the question whether this is a case which might engage s 106 of the Sentencing Act. I expressed the issue in this way: “Would the entry of a conviction be out of all proportion to the gravity of the offending, given that Mr Clarke had already spent three weeks in custody as a result of the circumstances he described?” Further submissions have now been filed.

Background facts

[7] Mr Clarke admits that he consumed alcohol contrary to the terms of the home detention sentence. He states that his mother bought the alcohol and that he drank some of it. Mr Clarke then asserts that, after he had consumed most of the alcohol, his mother called a probation officer and had him arrested, for breach of the condition of the home detention sentence. He suggests some form of inappropriate pressure had been brought to bear on his mother. While this explanation is contrary to one advanced in a probation officer’s affidavit, I am in no position to decide which version is correct. For the purposes of the appeal, without determining who is

_{correct, I act on Mr Clarke’s version of events.}

[8] Mr Clarke expressed concerns about some comments made by Judge McGuire, in his bail decision, about the number of time that he had appealed against decisions. I do not need to discuss that. Mr Clarke had the right to appeal against such decisions.

[9] Mr Clarke continues to assert that he is not at fault, on the grounds that the probation officers had failed in their duty to provide the required assistance to ensure that Mr Clarke attended a programme to address his alcohol problems. In effect, this submission seeks to deflect personal responsibility for his actions to those in whom his supervision was reposed by the home detention sentence.

[10] In further submissions filed on behalf of the Department of Corrections, my attention was drawn to the affidavit of a probation officer (Mr Rennie) in support of the application to cancel the sentence of home detention. The application was also to be heard on 4 July 2011. The home detention sentence was due to expire on 13

August 2011. Mr Rennie’s affidavit paints a different picture of the relationship between Mr Clarke and his mother and suggests that prior behaviour indicated that Mr Clarke might have been breaching the alcohol restrictions more frequently. Reference is also made to violent behaviour during the term of the sentence.

[11] Again, the conflicts in evidence between Mr Clarke and the probation officer cannot be determined on an appeal, in the absence of evidence and cross- examination. I consider the current appeal on the basis of a single proved incident of breach of the alcohol condition that led to Mr Clarke’s remand in custody following his appearance before Judge McGuire, in the circumstances described in Mr Clarke’s submissions.

[12] It does not appear that the Court cancelled the balance of the home detention sentence. No suggestion of that has been made in the submissions made by Mr Simmers, for the Department of Corrections, on this appeal. On any view, Mr Clarke must be treated as having served the whole of the sentence of home detention imposed on him.

Analysis

[13] With regard to the possibility of a discharge under s 106 of the Sentencing Act, Mr Simmers has submitted that the consequences of a conviction are not outweighed by other factors, to the extent that the test in s 107 would be met.[5]

[14] Mr Clarke’s main concerns appear to be the possibility of not attaining New Zealand citizenship due to the existence of a conviction and ensuring that the home detention sentence is either expunged from his record or, at least, confirmed to have been served. Mr Clarke has also expressed concern about the lack of any ability to attend programmes during the home detention sentence, though, for the purposes of an appeal, that is a concern which is now spent.

[15] Mr Simmers has referred to another case, involving a conviction on a charge under s 21(1)(e) of the Summary Offences Act 1981 in which Mr Clarke pleaded guilty and was convicted by a Community Magistrate. He appealed to a District Court Judge against the sentence imposed; that he should come up for sentence if called upon within nine months.[6] Mr Clarke submitted that he should be discharged under s 106. In the circumstances, his appeal was treated as one against both

conviction and sentence. Mr Clarke raised the citizenship issue on his appeal. Judge

Marshall recorded the submission in this way:

[25] I then asked [Mr Clarke] to identify any direct or indirect consequences of conviction as far as he was concerned. [Mr Clarke] advised that he had never applied for New Zealand citizenship and had come here when he was four with his father. He had applied for a New Zealand passport but had been refused due to the fact that he did not have citizenship and required three years of no convictions for him to be in a position to apply for a passport. He advised that previously he had an alcohol problem, which was under control and now wished to apply for citizenship. He advised that a conviction for this matter was another thing he didn’t need.

[16] I have considered Judge Marshall’s decision only to demonstrate that similar concerns were advanced in that case to those which I am being asked to review. The actual decision made by the Judge is irrelevant to the issues before me. Each case

_{must be determined on its own facts.}

[17] I have no jurisdiction on this appeal to quash the home detention sentence itself. That has already been upheld by this Court.[7]

[18] In this case, the consequence of a conviction is that there will be a record that Mr Clarke breached a term of his home detention sentence, which was admitted. The sentence imposed will be known to those who process any citizenship application. When those people who are responsible for determining whether Mr Clarke should receive New Zealand citizenship read this judgment, they will learn that, on a particular occasion, a home detention condition relating to the consumption of alcohol was breached. They will also see that the time served in custody, pending a hearing on that charge, was the sentence imposed. They will also ascertain that there is no dispute about the home detention sentence having been completed. From this and other judgments, those officials will also be able to see that the pattern of prior offending has all been linked to the consumption of alcohol.

[19] If, at the time of his application for citizenship, Mr Clarke could demonstrate that he had rid himself of his alcohol problem, that is more likely to weigh in favour of a grant of citizenship (given the connection of alcohol to the prior offending) than the appearance of a sentence of discharge without conviction on the present charge.

[20] Mr Clarke was remanded in custody from 9 June 2011 until 4 July 2012. The imposition of a sentence equating to time served on remand was not disproportionate to the offending. Unless a s 106 discharge had been granted, another sentence would have been imposed, in addition to the time served on remand and the home detention. The sentence imposed was, in many ways, the most lenient sentence that Mr Clarke could have expected.

[21] In those circumstances, I am not satisfied that the entry of a conviction is out of all proportion to the gravity of the offending. Necessarily, that conclusion means

_{that the appeal must be dismissed.}

Result

_{[22] The appeal against conviction and sentence is dismissed.}

_{P R Heath J}

Delivered at 11.00am on 4 September 2012

---

[1] It seems that a co-existent application to cancel the sentence of home detention and to have it replaced by imprisonment was not successful. In any event, the home detention period has now been served. See also paras [10] and [12] below.
[2] _{Gilbert v Police [2012] NZHC 873.}
[3] _{Clarke v Department of Corrections [2012] NZHC 1764.}
[4] Ibid, at para [7].

[5] _{R v Hughes [2009] 3 NZLR 222 (CA). Section 107 is set out at para [4] above.}

[6] Clarke v Police DC Morrinsville CRI 2011-039-125, 8 April 2011 at para [12] (Judge Marshall).

[7] See para [1] above.