Green v Police
[2017] NZHC 313
•1 March 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2016-409-000098 [2017] NZHC 313
BETWEEN NATALIE MARIE GREEN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 28 February 2017 Appearances:
N R Rout for Appellant
C J Bernhardt and C J Boshier for RespondentJudgment:
1 March 2017
JUDGMENT OF GENDALL J
Introduction
[1] On 6 July 2016, the appellant was sentenced in the District Court at Christchurch to 18 months’ licence disqualification, seven and a half months’ home detention and $30,000 reparation following convictions on the following charges:1
(a) failing to stop to ascertain injury;
(b) driving with excess blood alcohol (third or subsequent); (c) two counts of aggravated assault;
(d) failing to stop for red and blue flashing lights (x 2);
(e) driving in a dangerous manner;
1 New Zealand Police v Green [2016] NZDC 12573.
GREEN v NZ POLICE [2017] NZHC 313 [1 March 2017]
(f) reckless driving; and
(g) failing to stop.
[2] The appellant now appeals her sentence but only so far as the reparation order of $30,000 is concerned.
Background
[3] Late on 8 February 2015, the appellant went on what can only be described as an offending spree involving predominantly traffic related offences. She was first observed by neighbours driving over kerbs and almost hitting parked vehicles. When approached and spoken to, it appears she broke down in a distressed and emotional state. Her vehicle was driven back to her home by a neighbour in order to prevent her from driving. However, a short time later, the evening turned for the worst as the appellant got back behind the wheel.
[4] Repeatedly then, the appellant drove down the wrong side of various roads, causing other vehicles to swerve into the incorrect lane to avoid crashing into her. At times, this was done during moderate to heavy traffic flow, forcing other vehicles to take evasive action to avoid collision. When the appellant’s reckless actions were noticed by the authorities, a prolonged police chase ensued. On numerous occasions, when the police followed directly behind the appellant with red and blue flashing lights and sirens, the appellant failed to stop.
[5] Her failure to stop when followed by the police was further aggravated by a number of factors. First, the appellant drove 100km/hr in a 50 km/hr zone, secondly, she threw items from her vehicle, such as her handbag, in the path of the police and, thirdly, in blatant disregard of the authorities, it seems she waved her middle finger out the car window at the police.
[6] Relevant to the current appeal is the significant damage overall the appellant caused in this offending spree. The appellant drove through a red light, hitting another vehicle coming from her left on a green light. After driving into the vehicle, she continued accelerating, pushing it across the intersection before driving on up the
road. As she did this she struck a second vehicle which had been stationary on the other side of the intersection. When cornered by the police in an effort to stop the appellant from fleeing, she drove into the police vehicle, causing significant damage before driving off.
[7] A sample of the defendant’s blood reading returned a result of 326 milligrams of alcohol per 100 millilitres of blood. She told police her intentions that day were to end her life.
[8] The most significant damage occurred later in the events in question and involved the appellant leaving the road and seriously crashing into a retaining wall on a property owned by an innocent third party, Mr Ray Edwards. Before the District Court, a cost estimate to repair the wall was in the vicinity of $60,000. A recent assessment made by engineers for the wall repair more precisely estimated the cost at $49,708.18. That damage to the victim’s retaining wall has also caused on- going loss. Mr Edwards advises that, prior to the incident, the house and retaining walls were substantially damaged in the Canterbury earthquakes sequence and the house required demolition. Consequently, EQC and the insurers covered the cost of rebuilding the house. The necessary consents were obtained and the section was cleared.
[9] However, at the time of the damage caused by the appellant, the section remained empty and the damage to the retaining wall, it seems, was not covered by insurance. As a result, Mr Edwards advises that he is stuck with paying a mortgage on a property which cannot be built upon until the retaining wall is reinstated.
[10] In a document before the Court headed “Provision of Advice to Courts” (PAC report) prepared by the Department of Corrections, certain insights into the appellant’s offending are suggested. When interviewed at the time, the appellant stated that she attributed her offending to a culmination of extraordinary stresses arising from house fires earlier in the week, where she said uninsured contents were lost. The appellant said she had been suffering from depression, with her offending spree simply a reckless attempt at ending her own life. She stated that when she embarked on her escapade of offending, her initial intent was to take her own life by
jumping off the Scarborough hill cliff. This plan went awry after she began drinking a bottle of vodka with some of her prescription medications.
[11] The appellant’s house fire she described, it seems, did receive some media coverage. This resulted in a “Give A Little” fundraising campaign. Under this, some
$10,390.00 was donated to the appellant by 179 donors. It is unclear precisely where the proceeds of the donations have gone, beyond the fact that some have been refunded after donors found out the appellant was facing criminal charges. Before me, however, Mr Rout, counsel for the appellant, indicated that it is about one half of the donations that have been refunded to donors with the other one half the appellant says used to replace uninsured furniture and house contents destroyed in the fire.
[12] It has also been revealed that earlier that year, on around 31 March 2016, the appellant was admitted to Christchurch Public Hospital after a suspected suicide attempt, as a result of an intentional overdose of alcohol and drugs.
The District Court Judge’s sentencing
[13] The appellant pleaded guilty to the Land Transport Act 1998 charges on
4 June 2015 and was convicted by Judge Saunders at a defended hearing on 25 May
2016 on the two charges of aggravated assault. As I have noted, she appeared for sentence before Judge Saunders on all charges on 6 July 2016.
[14] After referring to the appellant’s “incredibly high” blood alcohol level, her deliberate ramming of the police car, her “appalling” driving and the “incredible amount of damage” she caused to other people in the community, Judge Saunders commented on the appellant’s lack of representation. He noted:
[7] I need to record today that you are without counsel. Mr Rollo was counsel at the hearing. He was present at the sentencing last week and he became aware that my concern was for the complainants or victims in this matter and in relation to the ability of the Court to impose reparation orders to meet and try and alleviate some of their loss.
[8] Mr Rollo made certain undertakings to the Court that documents would be completed and filed and that simply has not occurred. Neither has he appeared today at 10 o’clock to represent you and while the Court is aware that he may have other difficulties in his life he has certainly fallen
short of his professional obligations to not only you but to the Court to be here and deal with this matter appropriately.
[15] In turning to calculate the total amount of reparation, as well as the amount and frequency of payments, Judge Saunders took into account a statement of financial capacity dated 30 June 2016 the appellant had provided to the Court. This statement, he considered, showed the appellant would “with some difficulty”, but with input from her partner and her benefit income, be able to meet the reparation sentence imposed. A lump sum was clearly not an option. The appellant, he noted, had no assets that could be distrained to make a lump sum payment.
[16] The Judge also noted that when the Court was considering reparation, it must consider what would be a reasonable total amount to pay within a reasonable payment period. Without citing authorities, he said the Court of Appeal has suggested reparation should be paid over not more than about a five year period.
[17] With regard to the loss to Mr Edwards (noted by Judge Saunders to be approximately $60,0000 for damage to the retaining wall), the Judge imposed a sentence of reparation in the sum of $30,000, payable at not less than $150 per week. This sentence was imposed on charge CRN 4937 (aggravated assault on a police officer).
[18] No reparation order was made in relation to the damage to the police vehicle. Counsel for the police accepted that the $7500 sought for the damage caused to the patrol car was not recoverable within any “reasonable period of time” under all the circumstances here.
Appellant’s financial position
[19] On 30 June 2016, as I have noted, the appellant completed a statement of means which was provided to Judge Saunders. It showed the combined income of herself and her husband, as well as their combined outgoings. The statement of means showed no assets (her family home had burnt down and was uninsured). The family income from benefits and family tax credit was $772 per week while the total weekly outgoings (including house “rental” paid to the parents of the appellant’s
husband totalling $440) came to $731.00. The pre-sentence report also indicated that the appellant and her husband were supporting three children, the youngest being one year old and the oldest having cerebral palsy.
Victim Impact Statement
[20] The damage to the retaining wall has caused considerable emotional and financial distress to Mr Ray Edwards, the owner of the property. Mr Edwards says he and his family suffered great emotional harm due to the financial stress the appellant has put him under. He is upset by the delays in resolving this matter in addition to the anxiety caused by the financial perspective. Mr Edwards was angered and distraught when he discovered that the appellant had been the subject of a Give A Little fund raising campaign with respect to the house fire. Mr Edwards says he felt victimised. He sought reparation to the full extent.
Jurisdiction
[21] Under s 250 of the Criminal Procedure Act 2011 the Court must allow the appeal against sentence if it is satisfied that there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.
[22] A sentence will be manifestly excessive if it can be shown to be substantially or significantly more severe than it ought to have been in light of the seriousness of the offence and the culpability of the offender. The focus is on the end result, not the process by which the sentence was reached. In making this assessment, the appellate courts do not interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering.
The law
[23] Reparation is specified as one of the purposes of sentencing under s 7(1)(d) of the Sentencing Act 2002. It is intended to provide “a simple and speedy means of compensating those who suffer loss from criminal activities” so that they do not need
to seek a civil remedy.2
2 R v O’Rourke [1990] 1 NZLR 155 (CA) at 158.
[24] Under the Sentencing Act 2002, a court must impose reparation when it is entitled to do so unless such an order would result in undue hardship, or would be otherwise inappropriate because of some special circumstances.3 If an offender cannot pay the total value of the loss, the court may impose reparation for an amount less than the value of the loss, or payment of the amount by instalments, or both.4
[25] “Undue hardship” as noted in s 12(1) is something more than mere “hardship”. It requires the hardship objectively assessed to be excessive or greater than the circumstances warrant.5 The reparation should be realistic given the
financial resources of the offender,6 and the judge should have a “realistic measure of
confidence” that payment is able to be made.7 Future earning capacity can be taken into account as part of this determination.8
[26] Although there is no burden of proof on the offender to establish hardship, there is an evidential onus to place before the Court evidence of financial capacity. Failure to do so will mean there is no evidence that would allow the Court to be satisfied that the sentence of reparation would result in undue hardship.9
[27] On occasions in the past, it has been suggested generally that reparation orders which require payment over periods exceeding five years are regarded as causing undue hardship. In Guinness v Police,10 Woodhouse J summarised a number
of cases to illustrate this.11 His Honour also referred to two Court of Appeal
decisions, R v Vallily and R v Creek, where reparations over eight years and over nine and a half years respectively were upheld by the Court of Appeal. However, in
Vallily, the Court expressed reservations about the length of time it would take the
3 Sentencing Act 2002, s 12(1).
4 Section 35(1).
5 Hunt v Police HC Wellington AP 232/99, 29th September 1999.
6 R v Bailey CA306/03, 10 May 2004 at [25].
7 R v Pender [2007] NZCA 465 at [15].
8 R v Brown CA 267/92, 26 November 1992 at 5; Taua v Police HC New Plymouth CRI-2009-
043-22, 22 September 2009 at [7].
9 R v Thompson CA 404/04 19/10/2005.
10 Guinness v Police [2015] NZHC 883.
11 Via v R [2014] NZHC 1959; Scanlon v R [2013] NZCA 502; Crosland v Police [2012] NZHC
1929 at [14]; Leighton v Police [2012] NZHC 1925 at [11]; R v Hawke (No 2) CA307/05, 21
June 2006 at [7]; R v Pender, above n 6 at [29]- [30]; R v Donaldson CA227/06. 20 August 2006 at [43]- [44]; R v Bailey, above n 5 at [23]–[25]; R v Validly CA251/04, 10 November 2004 at [75]; R v Creek CA199/06, 7 August 2006, at [11]
reparations to be paid, but upheld the reparation order because it had been agreed to.12 In Creek, the Court of Appeal said that the appeal may have succeeded were it a general appeal, but as there was no error of law, it could not intervene.13
Analysis
[28] As to the “hardship” questions and the evidential onus on the appellant to place before the Court evidence of her financial capacity, the only evidence before this Court in that regard is the original 30 June 2016 statement of means provided to the District Court by the appellant. It is useful here to set out the relevant sections of that statement of means, which I now do.
I, Natalie of Kaniere Ave, the above-named judgment debtor state as follows:
1. My income before tax for the 52 weeks before the date of this statement was as follows:
(a) Salary, wages, or other personal earnings $551.97
….
(f) All other sources of income [family tax credit] $221
…
2. My present income (after tax) from all sources is $772.97
3. My expenses for the 52 weeks before the date of this statement were as follows:
…
(b) Rent $440
…
(f) Car maintenance, running, and registration $20
(g) Food and household supplies: $160.00 (h) Insurance and superannuation $19.23
...
(j) Electricity, gas and fuel: $54.00
12 R v Vallily, above n 9, at [75] – [76]. The order was however reduced from $87,000 (at $100 per week) to $40,000 ($5,000 per year over eight years).
13 R v Creek, above n 9, at [11].
(k) Telephone $29.38
…
(m) Child maintenance, care and education $9.23
…
4. My present weekly expenses are $731.84
[29] I repeat, that this statement of means provided in June or July 2016 by the appellant is the only financial information which is before this Court.
[30] Significantly, on 8 November 2016, Mander J in this Court provided a detailed minute for this appeal which stated specifically at paras [7] and [8] of that minute:
[7] I have observed to Mr Rout [counsel for the appellant] that there is a dearth of detailed financial information regarding the position of the appellant. In particular, the circumstances relating to the $450 per week rental paid to her parents-in-law.
[8] I also noted that if the reparation order is to be revisited it will be necessary to re-examine the sentence as a whole. It is apparent that the District Court ordered reparation as a component part of the total sentence. The fact the appellant was ordered to pay reparation was viewed by the District Court as a circumstance supporting the imposition of home detention rather than imprisonment.
[31] Notwithstanding this comment from Mander J on 8 November 2016, which it seems the appellant has chosen to ignore, there is no further or updated financial information concerning her position before this Court.
[32] Before me, Mr Rout for the appellant did confirm three matters:
(a) The new engineers’ estimate for repairs to Mr Edwards’ retaining wall of $49,708.18 (as opposed to the original repair quotations Mr Edwards received of approximately $60,000) was not disputed by the appellant.
(b)At the time of the original District Court sentencing, the appellant was in a position where she had some financial help from a family
member to assist with her tight income and outgoing position, but this help had “dried up” now.
(c) The appellant, her husband and children, continue to occupy the house owned by her parents-in-law and they continue to pay rental for this of $450 per week.
[33] Judge Saunders in the District Court in his sentencing notes of 6 July 2016 addressed the particular reparation issue at para [9] and stated:
[9] I accept you have done what you can by way of completion of a declaration statement of means and you have put figures together which I have been able to look at and which I accept shows that you would with some difficulty but with an ability from your partner and your benefit income to be able to meet on a regular basis a sum of not less than $150 per week by way of a reparation order. It is quite clear that there is no lump sum available…
[34] Before me Mr Rout for the appellant questioned whether, given the fact that the appellant, as a member of a family of five on a benefit, with limited financial position as outlined in her statement of means, it was therefore realistic for reparation at $150 per week to be imposed. He maintained that payment of this sum was simply impossible for the appellant and her family and that at most, reparation amounting to a maximum of $45 per week was all that could be accommodated here.
[35] Clearly, Judge Saunders in the District Court disagreed. Although it is not entirely clear from his decision, it seems he was strongly influenced by the substantial loss caused by the appellant’s actions to the innocent party, Mr Edwards here, and the requirement to do the best he could by way of a formal reparation order to go some way towards remedying this. Further factors, including the knowledge that family financial assistance it seems was available to the appellant at the time, and possibly also the potential for a corresponding rental reduction for the appellant’s home from the landlords who were her parents-in-law (and grandparents no doubt to her children), may well have played a part in Judge Saunders’ reparation consideration.
[36] As I have noted above, Judge Saunders in the District Court was entitled to impose reparation here unless he was satisfied that the sentence would result in undue hardship for the appellant or her family or that any other special circumstances would make it inappropriate. It is clear too that lack of means in itself is not sufficient to rebut the presumption in favour of reparation being ordered.
[37] Accordingly, unless the appellant is able to show that she and/or her children and family have suffered or will suffer undue hardship as a result of the reparation order or that other special circumstances render it inappropriate, there has been no error in the District Court sentence in this regard.
[38] As to the appellant’s means here, an offender’s means may be determined by way of a reparation report ordered under s 33 of the Sentencing Act 2002. It is evident that Judge Saunders in the District Court took the view that in the circumstances here, such a report was unnecessary. No doubt Judge Saunders was satisfied in giving his decision as to the amount of reparation the appellant should pay. He did have the benefit of the statement of financial means which had been completed by the appellant herself.
[39] It is clear from the authorities also, that the fact that an appellant’s present means may not be sufficient to make immediate reparation, does not in itself justify a refusal to impose such a sentence. Providing payment can be made within a reasonable time, a judge is entitled to impose reparation for less than the full amount of the loss and to direct payment by instalments. This is clear from s 35(1) of the Sentencing Act 2002.
[40] Although, as I have noted above, there is no up to date verified financial information for the appellant before the Court, from Mr Rout’s submissions it seems that the appellant’s financial position may not have changed significantly from her statement of means dated 30 June 2016. What seems clear is that she has young children, no assets and receives an income benefit. No details or information are provided as to whether her husband is able to be employed or gains income from some other source.
[41] Three matters are apparent, however. The first is that, as Mr Rout has confirmed, in the past the appellant did receive some financial assistance from family members, although he stated this has now “dried up”. Secondly, the appellant and her family are in the position of renting their current family home from her parents-in-law and presumably this has the potential to provide a degree of flexibility in rental payments such that funds might be made available for a period of time to meet the weekly $150 reparation payments ordered. And thirdly, future earning capacity of the appellant and her husband is not addressed.
[42] Revisiting the reparation order made in the District Court would also involve a re-examination of the sentence imposed on the appellant as a whole, the home detention component of which has already been served. The appellant has not sought any re-examination of those aspects of the sentence other than the reparation order.
[43] With all these matters in mind, together with the complete absence of any up to date financial information provided for the appellant, despite the clear direction from Mander J on 8 November 2016 to do so, must mean in my view that the appellant here has been unable to satisfy the onus upon her to show that Judge Saunders has erred in imposing his sentence of reparation. This decision, in my view, was one open to him in all the circumstances here and the sentence was not manifestly excessive.
[44] For all these reasons, the present appeal fails.
...................................................
Gendall J
Solicitors:
Better Lawyers, Christchurch
Raymond Donnelly & Co, Christchurch
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