Crooks v R HC Hamilton CRI 2007-419-27

[2007] NZHC 1649

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2007-419-27

TODD COLIN MURRAY CROOKS

v

THE QUEEN

Hearing:         22 February 2007

Appearances: R Laybourn for the Appellant

J O’Sullivan for the Respondent

Judgment:      22 February 2007

ORAL JUDGMENT OF PRIESTLEY J (Appeal on Sentence)

Solicitors:

R Laybourn, P O Box 936, Hamilton

J O’Sullivan, Crown Solicitor, P O Box 19-173, Hamilton

CROOKS V R HC HAM CRI 2007-419-27  22 February 2007

[1]      On 30 January 2007 the appellant was sentenced in the Hamilton District Court by Judge P R Connell to a term of eight months imprisonment.  The appellant faced a number of charges the details of which have little current relevance to my task.  Suffice to say he had pleaded guilty to four charges of theft of a motor vehicle and further charges of theft of cash, petrol and an air flow converter.

[2]      The summary of facts appears to have been uncontested in the District Court. The appellant had been a sales manager from March 2006 for Mega Motors, a second hand car firm, which was the victim.   Effectively the appellant stole his employer’s property which he then made various arrangements to sell, pocketing the cash.

[3]      That the appellant was placed in a position of responsibility was perhaps surprising given that he had a previous criminal history for similar offending during the 1990s.  As is apparent from the Judge’s sentencing notes that previous history was a major factor in the Judge arriving at the sentence that he did.

[4]      During the course of his sentencing remarks the Judge referred to victim impact statements.  Approximately two paragraphs are devoted to this.  The Judge’s view was that they made “sad reading”; that a branch of the victim company would have to be closed down as a result of the appellant’s offending; and that people would lose their jobs as a result.   The Judge then goes on, and correctly in my judgment, to identify the hurt which flowed from the appellant breaching the trust reposed in him.  The Judge identified this as an aggravating factor.

[5]      Mr Laybourn was not counsel at the sentencing.  The appellant’s counsel was Mr D Hall of the Hamilton Bar.   The Judge had before him two victim impact statements.  One was from Mr Hoani Hemi, who describes himself as the “principal dealer” and probably the chief operator of Mega Motors.  It was Mr Hemi’s victim impact statement which asserts that a branch of Mega Motors has been forced to be closed and that five staff members will lose their jobs.

[6]      A further statement from a Ms S J Roguski refers more to the administrative inconvenience which was caused by the appellant’s offending.

[7]      Significantly in this case the Judge ordered full reparation.  The sum ordered is $3,350, but prior to sentencing the appellant had voluntarily reimbursed his former employer $8,000.

[8]      I will not refer to the pre-sentence report.  Suffice to say that it is clear the appellant has a number of domestic responsibilities.  It is also clear that his financial situation is precarious.

[9]      The relevance of the victim impact statements to the matter before me is that although the Judge had clearly read them and reflected them in his sentence, neither the appellant nor his counsel Mr Hall had ever seen the statements.  The first time they  were  apparently  aware  of  their  existence  was  when  hearing  the  Judge’s reference.

[10]     Mr Hall left a telephone message with Mr Laybourn last night asserting that he was not provided with a copy of the victim impact statements.  Had he and the appellant read the statements undoubtedly issue would have been taken with the assertion that the branch office was closing down and that five Mega employees were losing their jobs.   As Ms O’Sullivan correctly observes in her submissions, such a dispute would have to be resolved by a contested facts hearing pursuant to the provisions of s 24 of the Sentencing Act 2002.

[11]     Mr Laybourn’s submission to me is that the inability of the appellant to contest the serious assertions by Mr Hemi on the victim’s behalf, coupled with the Judge’s reference to them, and the fact that counsel was unaware of the victim impact statements, flaw the sentencing process in a fundamental way.

[12]     Ms  O’Sullivan  responsibly  accepts  that  position.    Accordingly  the  only proper way of dealing with the situation is for me to allow the appeal, but for the limited purpose of quashing the various sentences imposed on the appellant by the Judge in the Hamilton District Court on 30 January 2007 and directing that the appellant be re-sentenced in that forum.  I order and direct accordingly.

[13]     The Hamilton District Court will need to obtain details about the length of the disputed facts hearing and also whether any updating information is required from the Probation Service.

[14]     Pending the re-sentencing I direct the appellant is to be released on bail.  Ms O’Sullivan  agrees  that  it  is  appropriate  to  continue  the  pre-sentencing  bail conditions.  The appellant is thus obliged, as a condition of his bail, to reside at 14

McCallum Court in Hamilton.

[15]     The appellant is further required to attend the Hamilton District Court for a call at 10 am on Tuesday 6 March 2007.  The Registrar of this Court is directed to notify the District Court accordingly.

[16]     It is by no means certain, of course, that a materially different result will flow from re-sentencing.  However, there are other matters contained in Mr Laybourn’s submissions which will obviously be placed before the sentencing Judge.  I say no more on that topic.

[17]     Finally there is a direction that within three working days Mr Douglas Hall is to swear and file in this Court, with a copy to the Crown, a short affidavit confirming the information which he has given to Mr Laybourn that neither he nor the appellant had seen the two victim impact statements prior to sentencing to which  I have referred.

..........................................… Priestley J