CLARKE v NZ POLICE [2016] NZCA 84

CLARKE v NZ POLICE [2016] NZCA 84 [23 March 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA662/2015[2016] NZCA 84BETWEEN NEIL MARTIN CLARKEApplicantAND NEW ZEALAND POLICERespondentHearing: 2 March 2016Court: Ellen France P, Keane and Dobson JJCounsel: Applicant in personP D Marshall for RespondentJudgment: 23 March 2016 at 3 pmJUDGMENT OF THE COURTThe application for special leave to appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Keane J)[1] On 11 June 2015 Neil Clarke was sentenced in the Wellington District Court to 10 months home detention imposed in two increments: a nine-month term and cumulative one-month term.1 He seeks special leave to appeal to this Court in point of law against the one-month term only. His application is opposed.1 R v Clarke [2015] NZDC 10867. The one-month term was imposed by Judge Tuohy in place of a sentence of 200 hours community work imposed on 3 July 2012 for five 2011 offences (trespass, three assaults of police officers and intentional damage), on the basis Mr Clarke had only completed three hours of the community work sentence.[2] There is an immediate difficulty with Mr Clarke's application. Mr Clarke originally appealed to the High Court against his whole sentence, contending that it was manifestly excessive, despite the fact that he had received from Judge Tuohy, the sentencing Judge, a consistent sentence indication as to both increments of his sentence, as a result of which he pleaded guilty to the offences for which the nine-month term was imposed (six benefit fraud offences, between 12 June 2010 and 1 March 2013, from which he had obtained $41,214.92); a term which on the appeal Ellis J upheld as "well within range".2[3] Ellis J declined leave to appeal from her decision.3 Mr Clarke's applicationfor leave for second appeal was declined by this Court.4 Ellis J's decision on appealwas, as we have noted, directed to the whole sentence. On one reading of it, however, her leave decision dealt only with one aspect of the sentence (the onemonth). This Court's decision declining leave dealt with only one, different aspect(the nine months). In principle, that apparent separation of different aspects of theone sentence should not happen because, as is apparent from Ellis J's decision on theappeal, the various components of the sentence are linked, for example, by considerations of totality.[4] The fact this Court has previously declined leave to appeal spells the end ofMr Clarke's present application. For the reasons we now discuss, we are satisfied inany event, that even if the focus is on the one month the three further points Mr Clarke wishes to raise do not meet the threshold for leave.5First further question[5] In her decision dismissing Mr Clarke's appeal against sentence Ellis Jrecognised that as from the date when Mr Clarke appealed his 3 July 2012 sentence, primarily his sentence of community work (he was also sentenced to nine months2 Clarke v New Zealand Police [2015] NZHC 1692 at [30].3 Clarke v New Zealand Police [2015] NZHC 2628.4 Clarke v New Zealand Police [2015] NZCA 570.5 Summary Proceedings Act 1957, s 144(3).intensive supervision), that sentence ceased to run until his appeal was dismissed on 8 May 2013.6[6] Mr Clarke should then, she held, have completed the hours outstanding by 13 March 2015, when Judge Tuohy gave him the sentencing indication, which she calculated to have been 10 months later. As she said, "Two hundred hours is equivalent to five 40 hour weeks of work."7 Then, when she declined Mr Clarke leave to appeal, she said that her 10 months calculation was incorrect. He would have had one year, 10 months.8[7] On his proposed appeal to this Court, the first further question which Mr Clarke wishes to raise is whether, contrary to Ellis J's assessment, his communitywork sentence remained suspended until his application for special leave to bring a second appeal against that sentence was declined by this Court on 6 December 2013.9[8] The difficulty Mr Clarke faces, however, is that the Summary Proceedings Act 1957, which continues to apply in this instance, only suspends a sentence of community work, on an appeal, from the date the notice of appeal was filed to the date when it was determined.10 It does not suspend such a sentence equivalently on an application for leave, or special leave, to appeal to this Court.11 That being so, Mr Clarke's sentence must have recommenced, as Ellis J held, on 8 May 2013, when his appeal was dismissed by Collins J.12[9] Even if that is not so, however, and Mr Clarke's sentence remainedsuspended until after his application for special leave was declined on 6 December 2013, he would still have had one year, three months within which to complete his6 Ellis J relied on s 345 of the Criminal Procedure Act 2011. In the subsequent leave decision she accepted the reference should have been to s 124 of the Summary Proceedings Act. See also Summary Proceedings Act, s 137(1).7 Clarke v New Zealand Police, above n 2, at [34].8 Clarke v New Zealand Police, above n 3, at [8].9 Clarke v R [2013] NZCA 603.10 Summary Proceedings Act, ss 124(3A) and 137(1).11 Terry v R [2010] NZCA 295 at [17].12 Clarke v New Zealand Police [2013] NZHC 1014.community work sentence, and he would have been obliged to complete it within 12 months.13Second further question[10] The second further question, which arises on Mr Clarke's application, is whether an application to vary or cancel his community work sentence, which he says he made in the District Court, as a result of completing the Bridge Programme had the effect of suspending his community work sentence in any event.[11] Here, too, the difficulty that Mr Clarke faces is that there is nothing in the Sentencing Act 2002 to that effect. Section 68 only enables an offender or a probation officer to apply for variation or cancellation of a sentence of community work and only gives the Court the ability to vary or cancel that original sentence or to impose a substitute sentence. Section 72, which prescribes how such applications are to be made, is equally silent as to suspension.[12] On the face of both these provisions, a sentence of community work continues to run until the date when the application to vary or cancel is determined. Indeed, if a substitute sentence is imposed, the Court is obliged to take into account"the portion of the original sentence that remains unserved at the time of theorder".14Third further question[13] The third further question, which Mr Clarke wishes to pursue, is whether he should have been given any credit for participating in the Bridge Programme over nine weeks in 2013. There has never been any report of his participation from the Salvation Army but his attendance was an issue on his sentence appeal when he contended for a discount of 10 to 15 percent.[14] Ellis J then held that, while Judge Tuohy did not advert to this documented potential source of credit in his sentence indication, or in his sentencing remarks, that13 Sentencing Act 2002, s 58(2).14 Sentencing Act, s 68(4).was not vitiating; any discount to which Mr Clarke might have been entitled couldnot have been "more than minor".15 The Judge would have been wrong, on thatbasis alone, she held, to have cancelled Mr Clarke's community work sentence. We agree.[15] In any event, Ellis J held, even if the one-month term standing alone was larger than was warranted, that was more than offset by Mr Clarke's benefit fraudsentence, which was "well within range" and could have been longer. Again, weagree.Result[16] In the result, we conclude that, quite apart from the fact that Mr Clarke has already exhausted his ability to apply for special leave to this Court to bring a second appeal from his present sentence, his three further grounds of appeal do not pass the threshold. The application for special leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent15 Clarke v New Zealand Police, above n 2, at [30].