MARKS v NEW ZEALAND POLICE [2013] NZHC 1855

MARKS v NEW ZEALAND POLICE [2013] NZHC 1855 [24 July 2013]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2013-409-000010[2013] NZHC 1855BETWEEN ANDREW JAMES MARKSAppellantAND NEW ZEALAND POLICERespondentHearing: 24 July 2013Appearances: No Appearance for AppellantAMS Williams for RespondentJudgment: 24 July 2013ORAL JUDGMENT OF D GENDALL J[1] This is an appeal against a sentence imposed on the appellant in the District Court at Christchurch by His Honour Judge Kellar on 21 January 2013 on one charge of driving contrary to the terms of a limited licence, one charge of driving contrary to the terms of a limited licence in its aggravated form, and one charge of failing tosurrender a drivers' licence.[2] When this appeal was called at 2:15 p.m. today, 24 July 2013, Mr Williams appeared as counsel for the respondent. There was no appearance for or on behalf of the appellant.[3] It is now 2:22 p.m. on 24 July 2013 and there is still no appearance for or on behalf of the appellant. The registrar, on my instruction, has called the case and theappellant's name both in this Court and in areas outside this Court. There is, however, no appearance for the appellant, nor have any submissions in support of the appeal been provided by the appellant.[4] That said, Mr Williams, for the respondent, sought an order from this Court dismissing this appeal. That is appropriate and an order to this effect is to follow.[5] In the meantime, however, there are certain matters which I note with respect to the appeal.[6] As outlined above, the appeal is one against sentence and relates simply to the imposition of a sentence of community work which was imposed by His Honour Judge Kellar as part of his 21 January 2013 decision.[7] Apparently on 18 October 2012 the appellant had been given a sentencing indication by His Honour Judge Blaikie in the District Court. He accepted this indication and entered guilty pleas. The matter was then remanded for sentencing which took place on 21 January 2013.[8] His Honour, Judge Kellar, sentenced the appellant to four months community detention and imposed 180 hours community work. In addition he disqualified theappellant from holding or obtaining a drivers' licence for 12 months. An order was also made pursuant to s 129 of the Sentencing Act 2002 confiscating the appellant'smotor vehicle.[9] As I have noted above, the appellant appeals against the imposition of the sentence of community work but does not appeal against any of the other sentences imposed.[10] His appeal appears to be made on the ground that the sentence imposed was inappropriate, given what he says is his poor health. As I understand the position, he has indicated he has recent diabetes and severe, acute gout. This is, as I understand it, the reason why he considers the community work component of his sentence to be inappropriate, given difficulties he may have with undertaking physical work and mobility generally.[11] The appellant is a 43 year old male and has a rather extensive criminal history.[12] The respondent submits also that the appeal should be dismissed on the grounds that the sentence of community work was not inappropriate. In fact it is noted that at sentencing the appellant himself appeared to seek a sentence of community work. This is noted at paragraph [7] of the sentencing notes where theDistrict Court Judge stated "You have indicated you would rather performcommunity work hours than have a community detention sentence."[13] As I understand the position, there are clearly a number of different types of community work placement that might be available in circumstances such as the present. If the appellant was to provide details of his health condition to the probation service then I have little doubt they would be able to ensure that a suitable placement is found.[14] Given these matters, the extensive list of prior convictions which the appellant has, and his failure to attend today to prosecute this appeal, there can be no question that the appeal must be dismissed. An order is now made dismissing the appeal....................................................D Gendall JSolicitors:Raymond Donnelly & Co, Christchurch,Copy to Appellant