Butt v Police - [2021] NZHC 179

IN THE HIGH COURT OF NEW ZEALAND

Round th REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000171

[2021] NZHC 179

BETWEEN
CARL ANDREW BUTT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: On the papers

Appearances:

J A A North for Appellant

J H Whitcombe for Respondent

Judgment:

16 February 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 16 February 2021 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Introduction

[1] The appellant, Mr Butt, pleaded guilty to unlawfully taking a motor vehicle. He was sentenced to 140 hours’ community work and ordered to pay reparation of
$11,000.1 He now appeals his sentence on the basis the amount of reparation imposed
was excessive.

1 Police v Butt [2020] NZDC 23874.

BUTT v NEW ZEALAND POLICE [2021] NZHC 179 [16 February 2021]

Background

[2] When Mr Butt pleaded guilty to the charge, he disputed the value of the vehicle, which was put at $11,475. While this was set down for a disputed facts hearing, the appellant did not attend that hearing and Mr Butt accepts that he has “foregone his chance to argue its legitimacy”.

[3]However, he says the amount ordered, being $11,000 paid at the current rate of

$20 per week, would take 550 weeks to pay, or approximately 10 and a half years, and this was not taken into account when the reparation amount and the overall repayment schedule was fixed. On behalf of Mr Butt, it is submitted that a 10 and a half year repayment schedule is excessive and is contrary to the principle that an order for reparation should not be made if the amount ordered cannot be paid within a reasonable timeframe.2 In that regard he says that the Court usually takes the approach of capping reparation at a five year limit to avoid an excessive repayment period.

[4] Counsel for Mr Butt also submits that, while the Court retains a discretion as to whether or not a reparation report should be directed before making an order for reparation, appellate Courts have found error when a sentencing judge has failed to direct preparation of a report before making a significant order for reparation.3 Furthermore, as Duffy J stated in Moshiem v Police, if a sentencing judge decides not to obtain a report they should state in their sentencing notes:4
(a)the reasons for dispensing with a report; and

(b)the information relied upon to support the amount and conditions of any reparation order that is made.

[5] Unless reasons of this nature are given, it is not possible for an appellate court to know if there was a proper basis for dispensing with ordering the reparation report.

2      R v Pender [2007] NZCA 465 at [15]; R v Bailey CA306/03, 10 May 2004 at [25].
3      Haa v Police HC Rotorua CRI-2005-463-91, 22 November 2005 at [13].
4      Moshiem v Police HC Auckland CRI-2010-404-160, 30 July 2010 at [34].

Discussion

[6] The ability to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Butt v Police

Details

AGLC: Butt v Police [2021] NZHC 179
Case: [2021] NZHC 179
Decision Date: 16 February 2021

CaseChat Overview and Summary

The High Court of New Zealand heard the appeal of Carl Andrew Butt against the New Zealand Police, regarding a sentence of reparation imposed for an offence of unlawfully taking a motor vehicle. The primary issue before the Court was whether the reparation order, amounting to $11,000, was excessive given the appellant's financial circumstances and the associated lengthy repayment period of 10 and a half years. Mr. Butt contended that this period was unreasonable and contrary to the principle that reparation should not extend beyond a reasonable timeframe.

The Court addressed the appeal by considering the Sentencing Act 2002, which mandates the imposition of reparation if lawful, unless it would result in undue hardship or special circumstances. The Court noted that while the ability to impose reparation is discretionary, it must be balanced against the principle of avoiding excessive hardship. The Court also considered the argument regarding the failure to prepare a reparation report before imposing the order, highlighting that while not mandatory, the absence of such a report without adequate justification could constitute an error. The Court concluded that the lengthy repayment period suggested by the reparation order indeed amounted to undue hardship, warranting the appeal's allowance.

The High Court allowed Mr. Butt's appeal, quashed the reparation order, and remitted the matter back to the District Court for reconsideration of the reparation issue. Additionally, the Court ordered that a reparation report be prepared under section 33 of the Act for the District Court to consider in its sentencing. This decision underscores the importance of ensuring that reparation orders are proportionate and do not unduly burden the offender.

Orders