Hubert v Police - [2016] NZHC 2587

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000089 [2016] NZHC 2587

BETWEEN
JAMES ANDREW HUBERT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 26 October 2016

Appearances:

M Starling for the Appellant
E J Henderson for the Respondent

Judgment:

28 October 2016

JUDGMENT OF NATION J

[1] Mr Hubert pleaded guilty to a charge that on 6 October 2015 he had possession of an offensive weapon, a tomahawk, in circumstances that prima facie showed an intention to commit an offence involving the fear of violence. Because of other matters that had to be dealt with, he was not sentenced until 19 July 2016. On
0 May 2016 he pleaded guilty to a charge of intentionally damaging a cell phone. On that charge he was remanded for sentence on 19 July 2016.

[2] On 19 July 2016, on both charges Mr Hubert was convicted and sentenced to community detention for five months, subject to a curfew from 8.00 pm to 5.00 am.1
He was also sentenced to supervision for a period of 12 months on a condition that he attends and completes an appropriate departmental programme to the satisfaction of the probation officer. He was also ordered to pay reparation of $400 for the cell
phone, $820 for damage done with the tomahawk to a window and $351.90 for

1 New Zealand Police v Hubert [2016] NZDC 16608.

HUBERT v POLICE [2016] NZHC 2587 [28 October 2016]

damage to a car window also done with the tomahawk. Reparation was to be paid at the rate of $10 per week.

[3] Mr Hubert filed a notice of appeal on 24 August 2016. With that appeal, he indicated he needed to apply for legal aid. In the notice, he indicated the appeal was against the order requiring him to pay reparation in the sum of $1,171.90, being reparation for the damage done with the tomahawk. He said he was appealing on the grounds that he had not been charged with that damage but was still required to meet the cost of that damage.

[4] There was some delay in his filing the notice of appeal. He said this was because of stresses associated with his partner being in hospital with a new baby. In the circumstances, leave to appeal is granted. I have considered the appeal on the merits.

[5] Written submissions for the appellant were filed by Ms Drummond. She was unable to appear when the appeal was called but Mr Starling spoke of those submissions and made further submissions on Mr Hubert’s behalf.

[6] In her written submissions, Ms Drummond referred to ss 12 and 32 of the

Sentencing Act 2002. In particular, she referred to s 32(1):

(1) A court may impose a sentence of reparation if an offender has, through or by means of an offence of which the offender is convicted, caused a person to suffer—

(a) loss of or damage to property; or

(b) emotional harm; or

(c) loss or damage consequential on any emotional or…

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 Hubert v Police

Details

AGLC: Hubert v Police [2016] NZHC 2587
Case: [2016] NZHC 2587
Decision Date: 28 October 2016

CaseChat Overview and Summary

In this case, the appellant, James Andrew Hubert, appealed against the reparation order imposed by the Court. Mr Hubert was convicted and sentenced on two charges: possession of an offensive weapon (a tomahawk) and damaging a cell phone. He was sentenced to community detention and ordered to pay reparation for the damage caused by the tomahawk. Mr Hubert appealed the reparation order for the damage caused by the tomahawk, arguing that he had not been charged with those specific damages.

The court considered whether the Judge could require Mr Hubert to pay reparation for the damage done with the tomahawk based on the summary of facts, despite the withdrawal of the wilful damage charges. The court referred to the judgment of the Court of Appeal in R v Donaldson, which endorsed a broad commonsense approach to reparation. The court found that the damage caused by the tomahawk was closely associated with the offence of possessing an offensive weapon and thus, it was appropriate for the Judge to order reparation for those damages.

Based on the reasoning above, the court dismissed the appeal. The reparation order for the damage caused by the tomahawk was upheld.

Orders