Jacomb v Police

[2015] NZHC 114

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000363 [2015] NZHC 114

BETWEEN

VERONICA JACOMB

Appellant

AND

NEW ZELAND POLICE Respondent

Hearing:	3 February 2015
Appearances:	Appellant in person M J Hammer for Respondent
Judgment:	10 February 2015

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Tuesday, 10 February 2015 at 11.00 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Counsel/Solicitors:          Crown Solicitor, Auckland

Copy to:  Appellant

VERONICA JACOMB v NEW ZELAND POLICE [2015] NZHC 114 [10 February 2015]

Introduction

[1]      On 29 October 2014, Veronica Jacomb was sentenced to 80 hours community work and ordered to pay reparation of $1,000 on a charge on intentionally damaging a motor vehicle.  She now appeals against the sentence of reparation on the basis that the Police have not established that reparation in the sum of $1,000 is appropriate.

Approach on appeal

[2]      The appellant  appeals  under s  244  of  the Criminal  Procedure Act  2011. Section 250(2) provides that the High Court must allow the appeal if satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed.  The Court of Appeal has confirmed that s 250(2) was not  intended  to  change  the  approach  taken  to  sentence  appeals  under  the  now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings

Act 1957.1    According, the appellant must demonstrate an error on the part of the

District Court.2  An appeal is “not generally a second shot at sentencing.”3

District Court proceedings

[3]      Following an incident on 28 September 2013 at Glendene, Ms Jacomb was charged with intentionally damaging a motor vehicle, registration number BQR475, the property of Kaycee Hollings.  To this charge she pleaded not guilty.  Following a defended hearing on 23 July 2014, Judge Treston found the charge proved. After the defended hearing, the matter was adjourned on several occasions while the issue of reparation was clarified.  Finally, on 29 October 2014, Ms Jacomb was sentenced to

80 hours community work and ordered to pay reparation in the sum of $1,000 to

Kaycee Hollings at a rate to be determined by the Registrar.

[4]      On  sentencing,  Ms  Jacomb  was  represented  by  counsel,  Ms  B  Murphy. Ms Murphy  accepted,  for  the  purposes  of  sentencing,  that  the  reparation  figure should be $1,000.  She advised the Court that, as a result of other issues, there was

likely to be an appeal against conviction.   There is, however, no appeal against

1      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26].

2      R v Shipton [2007] 2 NZLR 218 (CA) at [138].

3      Polyanszky v R [2011] NZCA 4 at [17] to [18] per Chambers J.

conviction.  Because of the way the case developed in the District Court there was no  disputed  facts  hearing  about  the  reparation  and  sentencing  proceeded  on  an agreed figure of $1,000.

Appellant’s submissions

[5]      On appeal Ms Jacomb was not represented by counsel.   She did, however, present me with a number of different documents in support of her submissions that the Police have not established that reparation in the sum of $1,000 is appropriate.

(a)      An ownership check through a website called “Carjam” which shows that the car at issue was registered to Ms Hollings’ uncle, Daniel Hatton;

(b)A printout from the AA of the vehicle history for the same car.   It shows that, at the time of the incident, the car did not have a warrant of  fitness.    The  most  recent  warrant  of  fitness  had  expired  on

28 May 2013.  It had been inspected for the purposes of a new warrant of fitness on 2 August 2013 but had failed on that occasion;

(c)       Another   printout   from   the   website   “Carjam”   which   shows   a

photograph of a similar vehicle or model;

(d)The Police booklet of exhibits produced at the District Court hearing which showed damage to a silver car but, which gave no indication of its make or model; and

(e)       Copies of two repair quotes obtained by the Police and provided to

Ms Jacomb.  The first is from Alfa Panelbeaters Limited and is dated

3 October 2013.  It relates to a car registration number BQR475 which is said to be a 1995 Toyota Corolla.  The quote is for $2,075.75.  The second quote is from T & S Panels & Paint and is dated 9 September

2014.  It relates to a car registration number HFZ612, which is said to be a 1996 Toyota Marino. The quote is for $1,673.25.

[6]      Ms Jacomb submits that all these documents present a confusing picture and that a Court cannot be sure that the repair quotes relate to the same car that she is found to have intentionally damaged.  The quotations apparently relate to different cars with different number plates.  One is described as a 1995 Toyota Corolla while the other one is a 1996 Toyota Marino.

Discussion

[7]      If the issue of reparation was to be disputed, it ought to have been dealt with in the District Court in a disputed facts hearing.  It is, however, not in the interests of justice that the matter be remitted to the District Court for another hearing and I have decided  that  I should  review  the  documentation  to  determine  whether  or  not  a reparation order in the sum of $1,000 is appropriate. As noted above, I should allow the appeal if I reach the conclusion that the order for reparation was made in error and that another sentence is appropriate.

[8]      I have been provided with two Police statements, one from the complainant Kaycee Hollings whose signature has been witnessed by Constable Andrew Palmer and a second from Constable Christopher Chambers.

[9]      Ms Hollings states that on 28 September 2013 her car, registration BQR475, was intentionally damaged by Ms Jacomb in the driveway of her home address.  She contacted the Police about the incident and took a series of photographs of the damage that was caused.  On 3 October 2013 she had Alfa Panelbeaters Ltd draft a quote for repairs to her car.  She provided both the photographs and the quote to the Police.

[10]     She notes that part of the damage was to the number plate.   She therefore removed the number plates and left them outside with the intention of straightening them out and reattaching them.   Both of the number plates were, however, stolen before she could do that and she accordingly made a complaint of theft to the Police. The complainant says that she therefore re-registered her car with the number plates HFZ612.  Due to her financial situation she says that she was then forced to sell her car to a family friend at a significantly reduced price due to the damage to it.

[11]     On 23 July 2014 she attended Waitakere District Court as a witness against Ms Jacomb.   About a month or so after the trial she was contacted by Constable Chambers about obtaining another quote for repairs to her car.  This time she said she organised T & S Panels & Paint to prepare a quote for repair of the damage.  On

9 September 2014 they produced a quote with reference number 0000155 which she gave to Constable Chambers.   She therefore confirms that the Police then had a series of photographs and two quotes for repair of the damage to her car.  Constable Chambers confirms Ms Hollings’ statement.

[12]     Based on the evidence of both the complainant, Ms Hollings, and Constable Chambers I find that both the quote from Alfa Panelbeaters Limited and T & S Panels & Paint refer to the same car owned by Ms Hollings notwithstanding that they have different registration numbers and have some difference in description of the model and year.   It is also immaterial, in my view, that the car was in fact registered in the name of Ms Hollings’ uncle.  Ms Jacomb said she understood that it was registered in the uncle’s name because of the complainant’s young age.

[13]     I therefore accept that the cost of repairs to the car for the damage caused by Ms  Jacomb  was  at  least  $1,673.25  which  is  the  more  recent  and  lesser  quote obtained by the complainant, Ms Hollings. A reparation order of less than two-thirds of that amount cannot be questioned on appeal.  Ms Hollings suffered damage to her car and the reparation order provides a simple and speedy means of compensating her so she does not need to seek a civil remedy.

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

……………………………….

Woolford J