Chapman v Police
[2017] NZHC 2307
•25 September 2017
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA
WHANGANUI ROHE
CRI 2017-483-008 [2017] NZHC 2307
BETWEEN GRANT CHAPMAN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 19 September 2017 (via AVL) Appearances:
Appellant Self Represented
M Wilkinson-Smith for the RespondentJudgment:
25 September 2017
JUDGMENT OF CHURCHMAN J
[1] Grant Chapman pleaded guilty to a single charge of wilful damage on
17 May 2017. He was sentenced in the District Court to pay reparations to the victim, Mr Morriss, whose car Mr Chapman had damaged with his key. Mr Chapman appeals against the sentence on the basis that the quotes for the repairs obtained by Mr Morriss were inflated and do not represent the true cost of the repair work. He has obtained two alternate quotes for the repairs. This appeal is out of time. Mr Chapman is self-represented.
Factual background
[2] Mr Chapman was charged with wilful damage under s 11(1)(a) of the
Summary Offences Act 1981 in relation to an incident in late 2016 where he
scratched the victim’s Holden Commodore Senator with a key.
CHAPMAN v NEW ZEALAND POLICE [2017] NZHC 2307 [25 September 2017]
[3] Mr Morriss provided two panel beater quotes to Police in relation to repair of the damage. One of these quotes was for $3036 and the other for $2595.41 (both GST inclusive). Mr Chapman pleaded guilty and was sentenced on 17 May 2017 at the Marton District Court. Judge Crayton ordered reparations of the lower quote of
$2595.41, despite Mr Chapman’s objections that both the quotes given were “way over the top”.1
[4] Mr Chapman was not represented at sentencing. He alleges that on the day he was told to see the Duty Solicitor and had not seen him before he was called before the Judge and told to pay reparations as ordered.
[5] The quotes Mr Morriss obtained read:
(a) “Remove and replace: left front and left rear door trims, chrome, badges, handles. Repair and paint: left side of vehicle and rear bumper. Total = $3036 including GST” from Hunterville Panel and Paint Ltd.
(b)“Repairs to left side of car & paint R/Rs l/headlight, l/guard vents, l/f/door fittings, mirror, l/r/door fittings, boot trims, tail light. Repairs to l/f/door, l/r/door, Paint l/f/guard, l vent panel, l/f/door, door handle, l/r/door, door handle, l/r/guard, blend l/cant rail, f/bumper.” Total =
$2595.41 from Marton Panel & Paint Ltd.
[6] The two quotes Mr Chapman obtained in the months after the reparation order read:
(a) “Holden Commodore Paint L/F guard, L/F door, L/R Blend L/R guard
- $1176.00 in GST” from Denis Hickmott at Premier Panelbeaters
(b)“LF guard, LF guard vent, LF guard – inner guard, LF door, LF door trim, LF door mirror, LF door handle outer, LF door window
moulding, LR door, LR door trim, LR door handle outer, LR door
1 New Zealand Police v Chapman [2017] NZDC 17559.
window moulding” Total = $1615.81 including GST from Mikes
Panel Shop Ltd (visual assessment only).
Submissions
[7] Mr Chapman’s submission is that the quotes of the panel beaters that was before the Court at sentencing are not representative of the cost to repair the damage he caused. He alleged that both the panel beaters quoted knew Mr Morriss and that they might have included the cost of other work in the quote. As an example of this he pointed to the fact the higher of the quotes Mr Morriss obtained refers to work on the rear bumper, and the lower quote refers to work on the boot trims, tail light and front bumper. Mr Chapman’s submission is that he did not touch these parts of the car when he caused damage to the left hand side of the vehicle with his key.
[8] Mr Chapman told the Court he was willing to pay reparations but requested a different quote from an independent panel beater. He is on ACC so any reparation order will be paid at a rate of $30 a week.
[9] Counsel for the Police, Mr Wilkinson-Smith submitted:
(a) The Court is able to extend the time allowed for the filing of an appeal in consideration of the reasons for the delay and the merits of the proposed appeal.
(b)The sole issue here is whether the District Court’s sentencing discretion was exercised properly. The Court has the discretion to make a reparation order, and does not require a reparation report to be made first.
(c) Mr Chapman disputed the victim’s two quotes at sentencing but did not present any quoted alternatives. The evidence presented in this appeal is therefore not fresh, and no error in sentencing has occurred. Further the evidence submitted is not “cogent” in that the quotes are made months after the damage occurred and do not appear to have the benefit of full inspection of the car.
(d) There is no hardship in the case as Mr Chapman can pay at a rate of
$30/week.
Law on appeal
Appeal out of time
[10] The Court may extend the time allowed for filing an appeal,2 taking into consideration the reasons for the delay and the merits of the proposed appeal.
[11] The Court must grant an appeal under s 250(2) of the Criminal Procedure Act if satisfied that there is an error in the sentence imposed on conviction and a different sentence should be imposed.3 The “manifestly excessive” test has been maintained in the courts’ application of s 250.4 A wide range of errors or irregularities may justify intervention by the appeal court. Accepted grounds of error include
(emphasis added):
(a) the sentence was inappropriate in a particular case;
(b)the sentence involved an error of law or principle (eg, failing to apply or wrongly applying a statutory factor, or taking into account an irrelevant consideration);
(c) relevant facts before the sentencing court were incorrect or incorrectly assessed;
(d)there was a marked disparity with the sentence given to a co-offender that would lead a reasonable, independent observer to think that something had gone wrong with the administration of justice;
(e) facts that existed at the time of sentence but were not before the sentencing court indicate that any of (a)–(d) apply; or
2 Criminal Procedure Act 2011, s 248(4).
3 Criminal Procedure Act 2011, s 250(2).
4 Tutakangahau v R [2014] NZCA 279 at [26] and [33].
(f) the court had no jurisdiction to sentence the offender.
[12] In the absence of a sentence error, the Court must dismiss the appeal.
Alleged error: relevant facts were incorrectly assessed
[13] The respondent submits that the proposed appeal by Mr Chapman involves him attempting to present fresh evidence before the Court. The respondent submits that the two quotes obtained post conviction and sentence could have been obtained with reasonable diligence at the first instance, and thus are not fresh.5 Mr Chapman acknowledged that the quotes obtained by Mr Morriss were done in October 2016, the same month as the offending, and that he had seen them in November 2016. It was not correct for him to claim he became aware of them for the first time at the
District Court in May 2017.
[14] It is possible to persuade an appellate court to take a different view of the facts on the basis of material which was not before the sentencing judge. The overriding criterion is always what course will serve the interests of justice.6 Here, I am persuaded that even if the evidence presented by Mr Chapman is not fresh, it is in the interests of justice for the appeal to proceed.
Analysis
[15] The car in question remains unrepaired. It has now been nearly a year since the offending took place. This is not the fault of any one party. The process of charging the appellant and sentencing him seems to have taken a long period of time.
[16] The offending took place on 3 October 2016. The victim’s quotes for repairs are dated 25 and 27 October 2016. The written quotes the victim obtained include the cost of repair to the car’s bumper and tail lights. Sergeant Wood for the Police on
13 December 2016 made comments recorded on the Police file that the quotes
Mr Morriss obtained appeared “grossly overpriced”. He directed Constable Shannon
5 R v Bain [2004] 1 NZLR 638, (2003) 20 CRNZ 637 (CA) at [18]–[27].
6 R v Bain at [22].
to arrange for Mr Morriss to take the vehicle to an independent panel beater for a new quote. This, for some unknown reason did not occur.
[17] Mr Chapman was charged on 6 March 2017 and sentenced on 17 May 2017. One of the alternative quotes he proposed is dated 5 July 2017, and the other is undated but presumably was made after 17 May 2017. Both quotes were made at least 7 months after the damage was inflicted.
[18] One the one hand, Mr Chapman committed a crime, and has been sentenced to pay reparations for it. His appeal is out of time and his submissions were unsupported by any legal analysis. The evidence he has put forth is not prima facie persuasive and more detail is required.
[19] However, the other side to this case is that this is a man of low means and this is his first experience with the judicial system. His strongest argument is that his concerns about the quotes Mr Morriss obtained were mirrored by Sergeant Wood in his email to Constable Shannon.
[20] It remains unclear why new quotes were not obtained as requested.
[21] I share Mr Chapman and Sergeant Wood’s reservations that the cost for repairing the damage caused by Mr Chapman is $2,595.41. This quote appears to include the cost of repair for damage not inflicted by Mr Chapman in his offending. To this end I believe the District Court Judge made an incorrect assessment as to relevant facts, namely the accuracy of the quote as representative of the reparation cost.
[22] I thus allow the appeal and set aside the decision of the District Court. I direct that a reparation report be prepared in accordance with s 33(1) of the Sentencing Act 2002 and remit the sentence back to the District Court for reconsideration in light of the report. The reparation report should make particular reference to Sergeant Wood’s comment on 13 December 2016 and ensure the quote obtained covers only the cost of repairing the damage inflicted by Mr Chapman.
[23] If there is any dispute as to the nature or extent of the damage caused by Mr Chapman then the District Court will need to hear evidence and form a view on exactly what damage was caused.
Churchman J
Solicitors: Appellant
Wilkinson Smith, Whanganui