Boag v Police

[2019] NZHC 3097

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-0362

[2019] NZHC 3097

BETWEEN

DION WARRICK BOAG

Appellant

AND

NEW ZEALAND POLICE

Respondent

Date of hearing:

26 November 2019

Appearances:

J F Mather for the appellant

A G Wiltshire for the respondent

Date of judgment:

26 November 2019

JUDGMENT OF JAGOSE J

The judgment was delivered by me on 26 November2019 at 4.00pm.

……………………………… Registrar/Deputy Registrar

Solicitors/Counsel:

John Mather Barrister, Auckland Meredith Connell, Auckland

BOAG v NEW ZEALAND POLICE [2019] NZHC 3097 [26 November 2019]

[1]    Dion Boag was sentenced to five months’ home detention and reparation payments of $2000 and $37,650 by Judge S J Maude in the District Court at North Shore on 8 May 2019,1 after pleading guilty to being a person in charge of a motor vehicle causing bodily injury while driving with excess breath alcohol.2 Mr Boag’s appeal is brought on the sole ground the latter reparation order is manifestly excessive.

Application out of time

[2]    Mr Boag requires an extension of time to appeal,3 as his appeal was not filed within 20 working days of sentence.4 Mr Boag’s appeal was filed on 12 August 2019, over three months after his 8 May 2019 sentencing. Extensions of time are granted in the interests of justice.5 Such applications “routinely reduce to two heads”: first, why was the appeal filed late; and second, what (if any) merit may the appeal have?6

[3]    Mr Boag explains he was unaware at sentencing the larger reparation order was made, as it was contained in an addendum to the notes of the Judge’s sentencing remarks, only obtained on 12 August 2019. The notice of appeal was filed that day. The delay is short and explained.7 Police take no issue with the appeal being filed out of time. The contested reparation payment offers grounds for challenge. I will grant the extension of time.

Background

—offending

[4]    On 23 March 2018 at approximately 11.50 pm, Mr Boag was driving north on Matakana Valley Road with the victim, who owned a construction company. The road has a speed limit of 100 kilometres per hour and was wet at the time. Mr Boag entered a left-hand corner at speed, causing him to lose control. The car ran into a dirt embankment, overturning before landing back on its wheels.

1      Police v Boag [2019] NZDC 8645.

2      Land Transport Act 1998, s 61(1)(b). Maximum penalty is five years’ imprisonment or a fine not exceeding $20,000.

3      Criminal Procedure Act 2011, s 248(4).

4      Section 248(2).

5      Mikus v R [2011] NZCA 298 at [26], citing R v Knight [1998] 1 NZLR 583 (CA) at 587.

6      R v Slavich [2008] NZCA 116 at [14]; see also Mikus v R, above n 5, at [26].

7      See R v Lee [2006] 3 NZLR 42 (CA) at [115].

[5]    The victim was not wearing a seatbelt. He was flung from the vehicle when it overturned. Mr Boag was trapped in the driver’s seat until emergency services arrived. Both were airlifted to Auckland Hospital. Mr Boag’s blood alcohol level was 151 milligrams of alcohol per 100 millilitres of blood.8

[6]    The victim suffered a deep laceration to the right side of his scalp, resulting in substantial blood loss and a linear fracture to the right side of his skull. He has ongoing pain management issues and loss of memory. He is lucky to have survived at all; he went into cardiac arrest ten times, and lacked any pulse for nearly a quarter-hour.

—District Court decision

[7]    The Judge adopted a starting point of 18 months’ imprisonment. There were no aggravating factors, Mr Boag’s blood alcohol level being implicit in the charge itself. The Judge declined to uplift for Mr Boag’s two previous convictions, given they were historical. He gave discounts of  one  month  for  remorse,  two  months  for  Mr Boag’s rehabilitative efforts, and a 25 per cent discount for Mr Boag’s early guilty plea. This resulted in a sentence of ten and a half months’ imprisonment. The Judge considered home detention to be the most appropriate sentence. An end sentence of five months’ home detention was imposed. Mr Boag was disqualified from driving for 20 months.

[8]    With Mr Boag’s agreement, the Judge ordered Mr Boag to pay $2000 by way of emotional harm reparation. However, in the addendum to the notes of his sentencing remarks, the Judge recorded he had omitted to order Mr Boag pay expenses related to the blood alcohol testing (these totalled $211.99). More significantly, the Judge also thought it appropriate he order reparation for the victim’s loss of income, as calculated in a police reparation schedule (which is not before me).

[9]    Ultimately, the Judge considered it was “a matter for Mr Boag, in consultation with the registry, to negotiate how [the reparation] is to be paid and the registry are to

8      The legal limit is 50 milligrams of alcohol per 100 millilitres of blood; Land Transport Act 1998, s 11(b).

take into account his circumstances”.9 The Judge recognised the reparation sum was large, and may be “paid incredibly slowly”.10

Approach to appeals against sentence

[10]   I must allow the appeal only if satisfied there is an error in the sentence, and a different sentence should be imposed.11 In any other case, I must dismiss the appeal.12 The approach previously taken by courts on sentencing appeals continues to apply,13 so that the measure of error is the sentence be “manifestly excessive” – a principle “well-engrained” in this Court’s approach to sentence appeals.14 I will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.15

Issue on appeal

[11]   Mr Boag appeals the imposition of the loss of income reparation order on the basis it is manifestly excessive. Specifically, his counsel, John Mather, says the Judge erred in failing to order a reparation report, failing to consider Mr Boag’s financial capacity, concluding the victim suffered a loss of $37,650.24, and failing to give reasons for the imposition of both emotional harm and loss of income reparation orders. He proposes a reparation report be ordered, and the matter be remitted to the District Court for sentence. Alternatively, I may determine the issue of reparation.

Discussion

[12]   Reparation orders, where available, must be imposed unless the sentencing court is satisfied the order would “result in undue hardship for the offender or the dependants of the offender, or that any other special circumstances would make it

9      Police v Boag, above n 1, at [33].

10 At [33].

11     Criminal Procedure Act 2011, s 250(2).

12     Section 250(3).

13     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

14     At [33] and [35].

15     Ripia v R [2011] NZCA 101 at [15].

inappropriate”.16 If appropriate, the court may order a reparation report be prepared to address the value of loss or damage and the offender’s capacity to pay.17 The court also may decline to seek a report if it otherwise can determine the amount to be paid.18

[13]   Reparation reports obviously are useful.19 The limited circumstances in which a court may decline to seek a report suggests they otherwise should be ordered by default where the sentence may be appropriate. Appeals against a sentence of reparation imposed in the absence of a reparation report often are allowed where the amount of the order is significant, and insufficient details of the offender’s financial position were before the court.20 Where there is evidence the offender may lack means to make payment, it is unwise to order reparation without first obtaining a reparation report.21

[14]   Little information about Mr Boag’s financial circumstances was before the Judge. The Judge was aware Mr Boag was unemployed but plainly contemplated, as the probation officer would allow, he may be able to find employment while subject to his sentence of home detention. But Mr Boag says he still is incapable of employment given his medical situation (although the pre-sentence report stated he had medical clearance to work some very limited hours). He was adjudicated bankrupt at the time of sentencing. He says he has debts owing to Work and Income New Zealand, Legal Aid, and to his mother. He appears to have little financial capacity to pay reparation in the amount ordered. The Judge also was aware Mr Boag may have difficulties in meeting the reparation payments. He considered that could be worked out with the registry. But it was for the Judge to determine that.22 It is not clear what basis the Judge could have had to decline to order a reparation report.

16 Sentencing Act 2002, s 12(1). ‘Undue’ requires something “more than the ordinary concept of hardship … such as excessive hardship or hardship greater than the particular circumstances warrant”; see Stewart v R [2018] NZCA 375 at [11], citing Hunt v Police HC Wellington AP232/99, 29 September 1999 at 7.

17     Sentencing Act 2002, s 33(1).

18     Section 33(2). See also R v Quayle CA39/03, 3 July 2003 at [22].

19     R v Wonnacott [2009] NZCA 414 at [20]; and Stewart v R, above n 16, at [13].

20 See R v Wonnacott, above n 19; Stewart v R, above n 16; Story v R [2012] NZCA 98; Hunn v  Police [2019] NZHC 1975; Martinson v Police [2017] NZHC 2830; and Alexander v Police [2015] NZHC 2730.

21 R v Quayle, above n 18, at [22].

22 R v Wonnacott, above n 19, at [21].

[15]   Absent a reparation report, even with Mr Boag’s own assessment of his financial circumstances, I cannot substitute for the Judge’s order. I have no evidence of qualifying loss or damage beyond the victim’s estimate of “costs & loss of income to be over $100,000.00”. And a reparation report would offer an independent assessment of Mr Boag’s financial means; his affidavit alone is insufficient.

[16]   The proper course is to allow the appeal, remit the matter back to the District Court, and order a reparation report.23 The reparation report will allow that Court to assess if a reparation order for loss of income would result  in  undue hardship on  Mr Boag, determine his financial means, and assess the appropriate conditions for reparation (such as ordering the payments be made in instalments).24

Result

[17]Time to appeal is extended to 12 August 2019.

[18]The appeal is allowed. The sentence of reparation is quashed.

[19]   The issue is remitted to the District Court for reconsideration if a sentence of reparation should be imposed and, if so, the conditions of any order.

[20]   I order a reparation report under s 33 of the Sentencing Act 2002 be prepared for the purpose of sentencing in the District Court.

—Jagose J

23     Following Stewart v R, above n 16.

24     Sentencing Act 2002, s 35(1).