Johnston v Electrical Workers Registration Board

[2022] NZHC 3190

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2022-443-55

[2022] NZHC 3190

UNDER

the Criminal Procedure Act 2011

IN THE MATTER OF

an appeal against sentence

BETWEEN

IAN LESLIE JOHNSTON

Appellant

AND

ELECTRICAL WORKERS REGISTRATION BOARD

Respondent

Hearing:

29 November 2022

Counsel:

M J Utting for the Appellant

D P Neild and A G McCluskey

Judgment:

30 November 2022

JUDGMENT (No. 2) OF CHURCHMAN J

Solicitors:

Thomson, O’Neil & Co, Eltham, for Appellant Crown Solicitor, Wellington, for Respondent

JOHNSTON v ELECTRICAL WORKERS REGISTRATION BOARD (No. 2) [2022] NZHC 3190 [30

November 2022]

Introduction

[1]                On 30 September 2022, Ian Johnston (the appellant) was sentenced by Judge Greig in the New Plymouth District Court to pay reparation of $5,719, and a $1,000 fine. He pleaded guilty to a single charge of carrying out unauthorised prescribed electrical work.1

[2]                Mr Johnston appeals that sentence on the basis that the level of reparation ordered was excessive.

[3]                Mr Johnston’s appeal is opposed by the Electrical Workers Registration Board, who say that there was no error in the sentence imposed.

Background

Factual Background

[4]                The Electrical Workers Registration Board oversees the registration of people carrying out prescribed electrical work. A person must be registered in order to carry out prescribed electrical work. Mr Johnston developed a six section subdivision in New Plymouth. As part of that development, an electrical contractor installed electrical services to boundary boxes.

[5]                On 11 February 2019, Mr Johnston supplied and installed underground cables from the boundary boxes to each section. This involved the installation of a 95 millimetre aluminium service main cable.

[6]                This was work that is defined by the Electricity Act 1992 as prescribed work, required to be carried out by a registered person. Mr Johnston is not a registered person. He was not supervised in performing that work, and no Certificate of Compliance was completed for that work. It was unauthorised work.

[7]                Ian and Bobby Clark purchased one of the lots in the development, but were unable to proceed with building their planned dwelling as the power had not been

1      Electricity Act 1992, ss 74 and 162; maximum penalty of a $50,000 fine.

provided to the site in a legal manner. They engaged two registered electricians who advised that the underground cabling from the boundary to site was not done by a registered electrician and so had no Certificate of Compliance. One of those two electricians laid a complaint with the Electrical Workers Registration Board. The Clarks requested through their solicitors that Mr Johnston rectify the work. He did not do so. The Clarks then also made a complaint to the Electrical Workers Registration Board.

[8]                On 15 April 2019, Mr Johnston obtained a Certificate of Verification for the work, which was given by one of the electricians that had previously inspected the work. That verifies that the work is in accordance with the prescribed industry standards but does not amount to a Certificate of Compliance, which requires that the work be done by a registered electrician.

[9]                After informing the Clarks of this, Mr Johnstone then told them that he expected them to reimburse him the cost of obtaining the Certificate of Verification, which was approximately $500. The Clarks refused to do so, owing to the fact that they were misled as  to  the  legality  of  the  electrical  supply  to  their  property.  Mr Johnston’s explanation was that he had acted in good faith, and believed that he did not need to be supervised to perform the work in question. He said that he had the relevant experience and that his work was not faulty, but only lacked a Certificate of Compliance.

[10]            The Clarks were then required to obtain a Certificate of Compliance, and paid for that, as well as the necessary associated works, at their own expense. This occurred in May 2019, some months after they had initially anticipated building a dwelling on the land.

[11]            The Electrical Workers Registration Board then charged Mr Johnston with an infringement offence pursuant  to  ss  74  and  162  of  the  Electricity  Act  1992.  Mr Johnston pleaded guilty, thereby accepting a sentencing indication on 2 June 2022. At that time, his counsel noted that Mr Johnston disputed the reparation sought. The Judge therefore ordered a reparation report, addressing his ability to pay reparations. That report provided that Mr Johnston had the ability to pay reparations.

District Court decision

[12]            At the sentencing hearing, the Clarks sought over $5,000 in reparation. The Judge noted that Judge Hikaka considered at the sentencing indication stage that a starting point for the fine would be $3,000 and that he would reduce that for an early guilty plea. The Judge noted that Mr Johnston’s actions had a “devastating impact” on the Clarks, given the stress that it caused them. His Honour considered “what might be done about putting the Clarks back in the position they would have been had this work been done properly”. On that basis he awarded the Clarks effectively the full cost of the reparations they sought. This figure represented:

(a)additional rental costs of twelve weeks due to delays in the dwelling being completed ($4,380);

(b)legal costs ($805); and

(c)costs of obtaining a Certificate of Compliance ($543.75).

[13]            Although the Judge acknowledged the significant emotional harm caused to the Clarks by the offending, he did not specify that any part of the reparation was by way of compensation of that harm.

[14]            The Judge noted Mr Johnston’s argument that no reparation should be ordered on the basis that there were contractual remedies available, and that it was difficult to test the quantum of reparation sought by the Clarks. However, his Honour considered that the Clarks would have to spend further resources to pursue contractual remedies, and that although the delays were inevitable, there were costs the Clarks incurred because of the unlawful work Mr Johnston did.

[15]            The Judge then reduced the fine proposed by Judge Hikaka to $1,000, to account for the quantum of reparation he was awarding. No conviction was entered, on the basis that the offence was only an infringement offence.

Positions of the parties

Mr Johnston

[16]Mr Utting, counsel for Mr Johnston submits that:

(a)although Mr Johnston pleaded guilty, reparation was not agreed to as a part of the summary of facts; and

(b)there was procedural unfairness in the determination of the level of reparation because:

(i)the required causal link between Mr Johnston’s actions and the claimed losses was not sufficiently established; and

(ii)Mr Johnston had limited opportunity to challenge the amount of reparation sought or the link between his actions and the claimed losses.

[17]            Mr Utting submits that the losses suffered by the Clarks were not consequential on Mr Johnston’s actions. He says that regard must be had to common law principles of causation.2 He submits that as building could not commence until consent was granted on 18 May 2021, the delay as a result of electrical works would not have caused a 12 week delay, warranting reparation for additional rent of $4,380. He says also that Mr Johnston offered to settle the dispute in early 2021, but that the electrician then working for the Clarks (Mr Hall) rejected this offer on their behalf. He says that Mr Hall therefore caused the Clarks loss.

[18]            Mr Utting says that the Court should have ordered a reparation report, and provided Mr Johnston the opportunity to respond. He submits that Mr Johnston was not in a position to challenge the evidence, and that the Judge erred in ruling on reparation without a report. He says that the matter should be remitted back to the District Court for a reparation report to be prepared, or that the amount of reparation should be set aside or reduced.

2      R v Donaldson & Anor CA227/06, 30 August 2006 at [36]–[38].

Electrical Workers Registration Board

[19]            Counsel for the Board, Mr Neild, says that Mr Johnston pleaded guilty on the basis of the summary of facts and that any dispute on the facts should have been raised before sentencing.

[20]            In the alternative, Mr Neild submits that the alleged offer to Mr Hall is not relevant, because the offer was not made to the Clarks, and does not address the fact that the delays in the first instance were caused by Mr Johnston’s actions.

[21]            Mr Neild submits that there was no error at sentencing and that the sentence cannot be considered to be manifestly excessive. He says that Mr Johnston had sufficient opportunity to challenge the fact that reparation would be ordered, because it was indicated in the sentencing indication, discussed in the victim impact statement, and dealt with in oral submissions at sentencing. He says the same logic applies to Mr Johnston disputing the quantum of the reparation.

[22]            Mr Neild submits that the purpose of a sentence of reparation is to provide a simple and efficient means of compensating those who suffer loss from criminal activities. He accepts that there must be a casual link between the loss or damage and the offending, but submits that this link is not to be equated to common-law causation. He says that on a common-sense assessment, delays and additional costs were consequent on Mr Johnston’s actions. He submits that it was foreseeable that a developer doing unauthorised electrical work on sections to be sold could cause the purchasers delays and costs. He submits that a sentence of reparation is the simplest and most efficient way of compensating the victims of Mr Johnston’s offending.

Approach to appeal

[23]            An appeal against sentence is an appeal against a discretion. Pursuant to s 250 of the Criminal Procedure Act 2011, the appeal 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 must dismiss the appeal in any other case.

[24]            Where the appeal court allows a first appeal, the appeal court pursuant to s 251, must:

(a)set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate or,

(b)vary the sentence, vary any part of the sentence, or vary any condition of the sentence; or

(c)remit the sentence to the court that imposed it and direct that court to take any action of a kind described in paragraph (a) or (b) as specified by the first appeal court.

[25]            Section 250(2) was not intended to change the previous approach taken by the courts.3 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals. An appeal court cannot “tinker” with the end sentence if the end sentence is within range.4 The focus is on the end sentence and not the process adopted to reach that end sentence.

Analysis

[26]            Mr Johnston pleaded guilty based on a summary of facts and a sentencing indication, notwithstanding the fact that he sought to dispute aspects of a proposed reparation order. As submitted by Mr Neild, Mr Johnston’s affidavit seeks to dispute a key aspect of the summary of facts, being that as a result of his actions, the Clarks were unable to proceed with their build.

[27]            I do not consider that it is appropriate for Mr Johnston to accept the summary of facts, accept a sentencing indication, plead guilty, and then challenge an important factual matter on appeal. That is not the purpose of a sentencing appeal, which is directed to considering whether there was any error in the sentence imposed or whether an injustice has occurred. Mr Johnston’s sentencing progressed on the basis of a

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26] and [27].

4      Ripia v R [2011] NZCA 101 at [15].

summary of facts to which he agreed, and did not challenge in a formal manner. The Judge noted Mr Johnston’s opposition to the nature of the reparation sought by the Clarks, and applied what Mr Neild described as a ‘common-sense’ approach, acknowledging that Mr Johnston’s actions had caused delay and cost to the Clarks, and that justice would be done through an order for reparation.

[28]            Judge Hikaka  noted  the  possibility  of  a  reparation  order  when  giving  Mr Johnston his sentencing indication. The proper forum for disputing such matters, as noted by counsel, would have been at the sentencing hearing, a disputed facts hearing prior to that, or even, before acceptance of the sentencing indication. I do not accept Mr Utting’s criticism of the contents of the reparation report. It is not the role of the PAC report writer to undertake some sort of forensic analysis of the amounts claimed by a victim by way of reparation. Their role is to establish whether or not the defendant has the means to pay reparation, thereby rendering reparation an available component of a sentence. The reparation report accurately recorded the defendant’s acknowledgement that he was financially able to meet an order for reparation.5

[29]            On the basis of the information before him the Judge appropriately concluded that the amounts of reparation claimed related to harm caused by the offending. There is no basis for claiming on appeal that the Judge made an error in that regard. The quantum of the reparation claimed and the basis for it was clearly set out in the victim impact statement which was available to Mr Johnston well before the date of sentencing. His lawyer made submissions on it.

[30]            It must also follow that I consider that there was no error in the Judge’s approach, or the final sentencing outcome. I cannot identify an error that would warrant reconsideration or an amendment to Mr Johnston’s sentence. It is clear from the District Court judgment that Mr Johnston had the opportunity to dispute the level of reparation, and that he did so. The Judge recorded Mr Johnston’s preference for the Clarks to seek contractual remedies, and the fact that building delays are “almost

5      At the  time  of  imposing  sentence,  the  Judge  also  specifically  sought  confirmation  from Mr Johnston that he was still able to immediately pay the amount of reparation he had fixed and he received that confirmation from Mr Johnston.

endemic”. He then appropriately recognised that the Clarks incurred costs as a result of unlawful work carried out by Mr Johnston.

[31]            In my view, it was in the interests of justice for the Court to provide the Clarks with reparation on that basis, particular given the reparation report provided which indicated that Mr Johnston could pay it. It would not have been appropriate for the Court to allow Mr Johnston to drag the Clarks into a different jurisdiction.

[32]The facts of the matter in this case are:

(a)Mr Johnston carried out unlawful electrical work;

(b)that work created extra costs to the Clarks upon their purchase of their section, and delays to their building process;

(c)Mr Johnston accepted a summary of facts on that basis, and pleaded guilty;

(d)the Clarks sought reparation for the costs noted above;

(e)Mr Johnston had the opportunity to dispute those costs, and did so; and

(f)the Court has the power to impose a sentence of reparation pursuant to s 32(1) of the Sentencing Act 2002 and did so.

[33]            I accept Mr Neild’s submission that this was a common-sense and just result. Section 32 provides that 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;

(b)emotional harm; or

(c)loss consequential on emotional harm or damage to property.

[34]            Like the District Court Judge, I am satisfied that on the basis of the summary of facts accepted by Mr Johnston, that the Court had the power to impose a sentence of reparation. As to quantum, I consider that there is no basis upon which Mr Johnston could successfully claim that it was manifestly excessive. Mr Johnston indicated at the hearing that he had the ability to pay the figure imposed immediately. Nor does it appear to me that the level of reparation was calculated on an inappropriate basis. Accordingly, I am satisfied that the appeal should be dismissed.

Result

[35]Appeal dismissed.

Churchman J