Hickman v The Queen

[2019] NZHC 3251

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000434

[2019] NZHC 3251

BETWEEN

ALEXANDER PETER JOHN HICKMAN

Appellant

AND

THE QUEEN

Respondent

Hearing:	10 December 2019
Appearances:	P McNabb and G Vear for the Appellant. M Davie for the Respondent
Judgment:	10 December 2019

JUDGMENT OF WOOLFORD J

Solicitors / Counsel:

Public Defence Service, Auckland
Meredith Connell (Office of the Crown Solicitor), Auckland

HICKMAN v R [2019] NZHC 3251 [10 December 2019]

[1]    Alexander Peter John Hickman pleaded guilty to one charge of burglary, and one charge of common assault. He was sentenced by Judge R G Ronayne in the District Court to six months’ community detention, 18 months’ intensive supervision, 150 hours’ community work, and $1,212.66 in reparation.1 He appeals against sentence, solely on the basis that a reparation order should not have been made.

Offending

[2]    Mr Hickman and two others went to a Mount Roskill address. Mr Hickman and one of his co-offenders went to the door and knocked. The victim opened the door and recognised Mr Hickman, both having attended the same high school. Mr Hickman then punched the victim in the mouth with a closed fist. The victim ran to a nearby store to call Police, and while there observed the three men running from his address and getting into a vehicle. On returning to the address with Police the victim noticed two television sets, a Playstation 4, and a Samsung smart phone had been taken. The total value of the goods set out in the agreed summary of facts was said to be

$1,212.66.

District Court sentencing

[3]    The District Court Judge outlined the offending, and considered it would attract a global start point of two  years six months’ imprisonment.   After an uplift for     Mr Hickman’s prior convictions and discounts for rehabilitation and guilty plea, he arrived at an end sentence of two years’ imprisonment.

[4]    The Judge told Mr Hickman he would, as a result of Mr Hickman’s plain need for rehabilitation (Mr Hickman having engaged in drug rehabilitation and being assessed at low risk of reoffending), commute this end sentence to community detention and intensive supervision rather than home detention.

[5]    As noted, the Judge made a reparation order in the sum of $1,212.66. There is no mention of a reparation report, or waiver of such a report, in the sentencing notes.

1      R v Hickman [2019] NZDC 19930.

Nor is there any discussion as to what Mr Hickman’s financial circumstances might be.

Submissions

Submissions for Mr Hickman

[6]    Ms McNabb, for Mr Hickman, makes three broad submissions as to why the reparation should be set aside.

[7]    First, she notes that Mr Hickman had two co-offenders, neither of whom have been identified or charged. She says the value of the stolen goods should be reduced so that Mr Hickman is not liable for the full amount.

[8]    Second, Ms McNabb says that although the agreed summary of facts records the value of the items at $1,212.66, this may not be accurate. Ms McNabb notes there are no details as to the particular make and model of the items taken, or their age or condition. It is possible the items taken may have a depreciated value, something which might also justify a lesser reparation order.

[9]    Finally, Ms McNabb says that there was insufficient information before the Judge to assess Mr Hickman’s ability to pay reparation.  Ms McNabb advises that  Mr Hickman has something like $6,500 in outstanding fines, of which the District Court Judge was unaware. She submits that the issue of reparation should be remitted back to the District Court for reconsideration, with a report.

Submissions for the Crown

[10]   Mr Davie, for the Crown, responds that the Judge was correct to make a reparation order for the entire amount recorded in the summary of facts.  He notes Mr Hickman appears to be a ringleader of the offending, and indeed had a history with the victim which may have been a contributing factor to the offending taking place.

[11]   Mr Davie further submits that Mr Hickman, having pleaded guilty to the summary of facts, cannot now challenge the value of the reparation. He also disputes

the Judge was not in a position to assess Mr Hickman’s financial position, noting he had information before him that Mr Hickman was about to finish a course in IT, leaving him better placed to gain employment. Mr Davie submits that a reparation report is not required in every case, and is particularly likely to be dispensed with in a case such as this, where the sum is so small.

Approach on appeal

[12]   Appeals against sentence are governed by s 250 of the Criminal Procedure Act 2011:

250     First appeal court to determine appeal

(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2)The first appeal court must allow the appeal if satisfied that—

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

(3)The first appeal court must dismiss the appeal in any other case.

[13]   An appeal will be successful only if the appellant can point to an error, either intrinsic to the Judge's reasoning, or because of additional material submitted on the appeal which vitiates the sentencing decision of the Court below.2 Unless there is a material error in sentencing, for example, leading to a sentence that is manifestly excessive, manifestly inadequate, or wrong in principle, an appellate court will not intervene.3

Reparations

[14]   Section 12(1) of the Sentencing Act 2002 provides that, if a Court is lawfully entitled to impose an order of reparation, it must do so unless satisfied that the order would result in undue hardship for the offender or the dependents of the offender, or that any other special circumstances would make it inappropriate.

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [29]-[31].

3      At [32]-[35].

[15]   “Undue” indicates something more than the ordinary concept of hardship is intended, such as excessive hardship or hardship greater than the particular circumstances warrant.4

[16]   Under s 33, if the Court considers that a sentence of reparation may be appropriate, the Court may ask that a reparation report be prepared, to address, among other topics:5

(a)in the case of loss of or damage to property, the value of that loss or damage and any consequential loss or damage;

(b)the financial capacity of the offender;

(c)the maximum amount that the offender is likely to be able to pay under a sentence of reparation; and

(d)the frequency and magnitude of any payments that should be required under a sentence of reparation, if provision for payment by instalments is thought desirable.

[17]   A Court may decline to seek such a report and impose a sentence of reparation without further inquiry, if any of the following conditions are met:6

(a)the Court is satisfied as to the amount of reparation that the offender should pay; or

(b)the type of information referred to in a reparation report is available through other means; or

(c)in all the circumstances the Court considers that a report is unnecessary.

4      Hunt v Police HC Wellington AP232/99, 29 September 1999 at [7].

5      Sentencing Act 2002, s 33(1).

6      Sentencing Act 2002, s 33(2).

[18]   Under s 35(1), if an offender has insufficient means to pay the total value of the loss, the Court may impose a sentence involving reparation for an amount less than the value of the loss or order payment by instalments.

[19]   Appeals against a sentence of reparation imposed in the absence of a reparation report are sometimes allowed where the amount of the order is significant and the financial position of the defendant was not established.7 The Court of Appeal in R v Bailey held that a reparation order must be set at a level which makes it realistic given the financial circumstances of the person against whom it was made.8 It is desirable that reparation orders do not bond debtors for many years to pay large sums by small weekly contributions.9 Courts have often held that a reparation order requiring payment by instalments continuing for more than five years is not appropriate.10

[20]   The following summary of cases provided by Woodhouse J in Guinness v Police gives a flavour for where the Courts have found undue hardship:11

[17]It is relevant to refer, in a very summary way, to the facts of some decisions:

(a)In Vea a reparation order of $27,450 was considered excessive and replaced by an order for $13,000 to be paid at $50 per week.

(b)In Scanlan a payment period of 53 years for reparation of

$138,172 at $50 per week was replaced on appeal with an order for reparation of $13,000 to be paid at $50 per week from the date of the offender's release from prison. That resulted in a 5 year payment period.

(c)In Crosland an order of some $48,772 at $50 per week for a domestic purposes beneficiary was considered excessive. It would have taken her 19 years to satisfy the order. An order was made on appeal of $30 per week for 5 years.

(d)In Leighton an order of reparation of $40,700 was imposed for payment over 5 years. Mr Leighton was on an emergency benefit. The order was quashed and replaced with an order for

7      See Stewart v R [2018] NZCA 375, involving a reparation order of $21,946.55, which was quashed and remitted for reconsideration with a reparation report; Martinson v Police [2017] NZHC 2830, involving a $14,000 order which was similarly quashed and remitted; Alexander v Police [2015] NZHC 2730, involving a $5,000 reparation order quashed and remitted; and Guinness v Police [2015] NZHC 883, involving a $300,000 order quashed and remitted.

8      R v Bailey CA306/03, 10 May 2004 at [25].

9      Martinson v Police [2017] NZHC 2830 at [26]; Guinness v Police [2015] NZHC 883 at [16].

10     Guinness v Police [2015] NZHC 883 at [16]

11 At [17]. (citations omitted)

$10,500 to be paid over 5 years at a rate to be arranged with the District Court Collections Unit, but with an expectation of

$40 per week.

(e)In Hawken (No. 2) an order to pay reparation of $120,000 was quashed on appeal with no substituted amount imposed because of the offender's inability to pay the sum.

Evaluation

[21]   Turning first to Ms McNabb’s point that reparation should be divided to reflect culpability, I note that submission carries more weight where a co-offender has been charged. The quantum of reparation can be divided among co-offenders to reflect culpability. However, a single offender may be held liable for the whole amount where co-offenders have not been formally charged or convicted.12 In Johnstone v Police, cited by Ms McNabb, Mr Johnstone had been one of three burglars. On appeal a reparation order was substituted to reflect a third of the amount taken, rather than the full amount. However, I note in that case Mr Johnstone was a minor participant only in the offending, having not entered the house.13 Here, Mr Hickman appears to have been a lead offender, having punched the victim to gain entry to the house. The case for reducing his reparation payment is accordingly lesser than it was for Mr Johnstone, particularly given his co-offenders have not been charged.

[22]   Mr Davie is correct that in general, an offender cannot challenge the summary of facts after pleading guilty to it. The Court of Appeal in Pokai rejected an argument from counsel that material extraneous to the summary of facts supported a more benign view of the offending:14

[30] In developing this argument, counsel for Ms Black sought to rely upon factual material that did not form part of the summary of facts. This included material that counsel had received from the police during the disclosure process. We do not propose to have regard to that material for present purposes. This Court has made it clear in cases such as R v Apostolakis and R v Whiunui that, in cases where counsel have reached agreement regarding the factual summary on which a guilty plea is to be entered, sentencing must proceed on the basis of that summary. Any appeal against sentence must similarly be decided having regard to the facts contained the summary.

12     Johnstone v Police [2013] NZHC 306.

13 At [14].

14     Pokai v R [2014] NZCA 356 at [30].

[emphasis added]

[23]   However, it appears a more liberal approach has been taken in the reparation context. I note in Johnstone the summary of facts recorded an estimated $15,000 of property was taken, while the victim provided receipts that indicated a loss of only

$13,010, which was the sum initially ordered by the District Court Judge (albeit reduced on appeal).15

[24]   On the whole though, $1,212.66, does not appear to be excessive, given it encompasses two television sets, a Playstation 4, and a Samsung smart phone. Where sums are not plainly excessive, I do not consider the District Court was obliged to get valuations based on factors such as depreciation.

[25]   In terms of the information available to the Judge, there is nothing in the sentencing notes to indicate that the Judge had regard to Mr Hickman’s financial circumstances, or whether there were special circumstances pointing against the imposition of reparation. Duffy J considered that such considerations were a minimum requirement:16

[34]      I have considered the arguments the respondent made regarding the basis for the Judge dispensing with a reparation report. Whilst I agree with the respondent that a report will not always be needed, I consider that before deciding to dispense with a report, a sentencing judge should state in his or her sentencing notes:

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.

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 a reparation report.

[26]   In the present case, the Judge did not state the reasons for dispensing with a report. As to the information relied upon to support the amount and conditions of any reparation order, the Judge merely stated that this was the value of the stolen goods.

15     At [8], [12].

16     Moshiem v Police HC Auckland CRI-2010-404-160, 30 July 2010 at [34].

[27]   However, given the relatively low amount ordered here, it is not clear the appeal can succeed on the grounds that the order might result in undue hardship to Mr Hickman. $1,212.66 is far lower than any of the orders considered in the cases cited above. As noted above, the Courts seek to avoid sums that take over five years to repay. Even paying as little as $5 a week, Mr Hickman would be able to pay reparations in less than five years.

[28]   Secondly, the Crown submits that there was evidence before the District Court which indicates Mr Hickman is in a position to pay reparation. He lives with his mother. He is also about to finish an IT course, and provided the Court a reference from the course provider that opined that he would be “an ideal employee” upon completion. He also provided a reference from the martial arts academy, which the Crown says indicates Mr Hickman must have at least some disposable income to be able to attend. Although more fulsome information might be needed if the quantum of reparation was greater, I agree with the Crown that this indicates Mr Hickman is likely to be able to pay the reparation order, in instalments if necessary.

[29]In all the circumstances, the appeal is dismissed.

Woolford J