Johnstone v Police

[2013] NZHC 306

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000230 [2013] NZHC 306

RODNEY JAMES JOHNSTONE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 February 2013

Counsel:         Appellant in Person

S Pidgeon for the Respondent

Judgment:      25 February 2013

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Monday, 25 February 2013 at 3:15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Auckland.

JOHNSTONE V POLICE HC AK CRI-2011-404-000230 [25 February 2013]

Introduction

[1]      On 25 May 2010, in the Auckland District Court, Rodney James Johnstone, the appellant in this case, pleaded guilty to a charge of burglary and was sentenced to five months’ home detention.[1]   He was also ordered to pay reparation of $13,010 at the rate of $25 per week.

[1] Police v Johnstone DC Auckland CRI-2010-004-1904.

[2]      On  22  June  2010,  Mr  Johnstone  filed  an  appeal  against  sentence.    The grounds of the appeal related solely to the reparation order.

[3]      On 9 August 2010, Mr Johnstone breached his sentence of home detention by leaving his home detention residence without approval from a probation officer.  He was located that day at another address and admitted to Probation staff that he had consumed alcohol and cannabis earlier in the day.  The Probation Service charged Mr Johnstone with breach of home detention.   It also applied to cancel the home detention sentence and substitute a sentence of imprisonment.

[4]      On 12 August 2010, Mr Johnstone pleaded guilty to the charge of breach of home detention and did not oppose the application to cancel the sentence of home detention and substitute it with a sentence of imprisonment.   He was accordingly remanded in custody until 2 September 2010 for a pre-sentence report and sentence.

[5]      On  2  September  2010,  Mr  Johnstone  was  sentenced  to  two  months imprisonment for breach of the sentence of home detention.  However, Court staff told the Probation Service and Mr Johnstone’s lawyer that the application to cancel the sentence of home detention could not be heard because Mr Johnstone still had an active appeal lodged against the sentence.  Accordingly, the application was put off to the next day to enable the Papakura District Court to seek advice on how to load the application into their system as at that stage an appeal was still pending.

[6]      On 3 September 2010, on advice from the Probation Service and his lawyer, Mr Johnstone filed a handwritten notice of abandonment of his appeal in the High

Court at Auckland.  The Court then advised the parties that the application to cancel the sentence of home detention could now be determined.   Mr Johnstone was accordingly sentenced to two months’ imprisonment in substitution for the sentence of home detention to run concurrently with the two month term of imprisonment that he had received the previous day in relation to the charge of breach of the sentence of home detention.

[7]      On 27 June 2011, Mr Johnstone filed a further appeal in the Auckland District Court against his sentence of reparation.   This second appeal is well out of time. Mr Johnstone recognises that he may have some difficulty in pursuing a second appeal and therefore applies for leave to withdraw his notice of abandonment of the first appeal and proceed with his appeal against the reparation order.

Factual background

[8]      The summary of facts records that, at about 10.00 am on 27 November 2009, Mr Johnstone and two unknown associates entered a private residential property located on St Mary’s Bay Road, Auckland.  Mr Johnstone is said to have approached a front bedroom window and smashed the top sash window, gaining entry into the premises.  Once inside, Mr Johnstone and his associates have ransacked the home and  taken  property  from  all  the  bedrooms  and  living  areas  before  leaving  the property undetected.  Property estimated to be valued at $15,000 was stolen from the residence.

[9]      The following day a Police crime scene officer attended the address and uplifted a wet swab from a curtain at the point of entry and forwarded it to ESR for analysis.  On 14 January 2010, the DNA swab taken from the point of entry returned a positive forensic match for Mr Johnstone.

[10]     Mr Johnstone’s explanation is somewhat different to the summary of facts. As for being at the scene of the burglary, Mr Johnstone says that he was drinking all night and had very little sleep.  The next morning he caught a ride with two gang members  to  buy  himself  more  beer.    They  travelled  to  a  couple  of  different addresses.    At  the  address  in  St  Mary’s  Bay  Road,  the  two  gang  members

disappeared for quite some time.  Mr Johnstone says he could not see them from the road so he walked on to the property to see why they were taking so long.  The two gang members then apparently asked him to help open a lock on the inside of the window.   He could not do it and, accordingly, used a beer bottle to smash the window.  While doing so, he cut his finger.  Mr Johnstone states that he then realised they were breaking into the house and he told them that he was leaving to catch a bus home as he did not want any part of what they were doing.  When he walked off, Mr Johnstone  said  they  threatened  him  and  his  partner  and  children  if  he  said anything to anyone.   About 20 – 30 seconds later he looked back and saw them putting a television set into their car and driving off.  Mr Johnstone said that he did not leave with the gang members but did, in fact, catch public transport home.  He says he was very afraid of the gang members for his own and his family’s safety but now knows he should have called the Police.

[11]     Moreover, Mr Johnstone  says that he

never gave a guilty plea of burglary at any time in my court case.  I was an alcoholic with bad communication with my lawyer, and really afraid for my safety from the other two offenders, I didn’t really know what was going on when I got sentenced.

[12]     The victim  of  the burglary provided  a  list  of  stolen  property which  she estimated to be worth $13,010 in total.  She was able to provide receipts and invoices for most of the items but she claimed approximately $3000 - $4000 for small items of jewellery for which she had no receipts.   The most valuable item was a 43” plasma television for which she provided a receipt for $4200, which she had purchased four years previously.

[13]    In her victim impact statement she said that, unfortunately, some of the property/jewellery was  not  insured  at  the time of the burglary,  which  seems  to suggest that she had a measure of insurance cover.

District Court decision

[14]     In the Auckland District Court, Judge Gaskell referred, first of all,   to the facts of the burglary.   She noted that Mr Johnstone accepted that he broke the

window so that others could get into the house.  She then referred to Mr Johnstone’s statement that he did not enter the house but sat in the car and remarked that the others who were with Mr Johnstone had not been identified either by him or by any other means.

[15]     Judge Gaskell then stated that the victim was not insured for most of her property and sought full reparation.  The judge did not, however, appear to give any consideration as to whether the amount claimed could be considered to be a realistic estimate of the victim’s loss.   Because Mr Johnstone had not identified his co- offenders and they had  not been identified by other means, Judge Gaskell then advised Mr Johnstone that he was liable to pay all of the reparation.  Judge Gaskell next referred to the victim impact statement and the pre-sentence report.  She noted that Mr Johnstone was a sickness beneficiary as he suffered from depression that seemed to arise from some childhood issues.   Judge Gaskell noted, however, that Mr Johnstone had a supportive partner and two children.  He also had an alcohol and drug problem, which was obviously a factor in the offending, but the Judge remarked that Mr Johnstone was making very good progress on a Salvation Army Bridge programme.

[16]     After noting Mr Johnstone’s previous convictions and the fact that he was also making good progress on his community work sentence, Judge Gaskell said that this allowed the Court to consider an alternative to imprisonment, which would otherwise have been the sentence imposed.  Taking all matters into account then and giving credit for his plea of guilty, Mr Johnstone was sentenced to five months home detention.  Judge Gaskell also ordered Mr Johnstone to pay reparation of $13,010 at the rate of $25 per week, which she said was to be reviewed once Mr Johnstone had found himself a job.  If Mr Johnstone continued to make payments at $25 per week, he would require approximately 10 years to pay the reparation.

Procedural history of appeal

[17]     There has been an extensive procedural history of the appeal which largely revolved around the ability of Mr Johnstone to withdraw his notice of abandonment of appeal.  Mr Johnstone made allegations against the Probation Service with which

the Crown took issue.  Accordingly, a number of affidavits were filed by the Crown. Today, however, the Crown acknowledges that there are grounds for finding that the notice of abandonment of appeal was a nullity on the grounds that the advice given by both the Probation Service and Mr Johnstone’s lawyer was incorrect.[2]  The Crown now accepts that the Court should have been able to cancel Mr Johnstone’s sentence of home detention and substitute it with a sentence of imprisonment without the

necessity for Mr Johnstone to withdraw his appeal against the reparation order as the two sentences were quite distinct although they arose of the same factual circumstances.  The Crown accepts that this mistaken advice played a material part in Mr Johnstone’s decision to sign the notice of abandonment drafted by his lawyer.

[2] See generally:  Eschbank v Police (1989) 5 CRNZ 157 (HC) at 158;  R v Medway [1976] QB

779 at 798.   Leave to withdraw was also granted in R v MacKay [1980] 2 NZLR 490 (CA)

because the abandonment was based on “genuine confusion” about appeal procedures.

[18]   In those circumstances, the Crown responsibly accepts that there is no impediment to consideration by this Court of the substance of Mr Johnstone’s appeal against the reparation order.

Analysis

[19]     An appeal against a sentence is a general appeal which shall be by way of rehearing.   Section 121(3)(b) of the Summary Proceedings Act 1957 provides that the High Court may quash or vary a sentence where it is “clearly excessive or inadequate or inappropriate” or if the Court is “satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the Court imposing sentence”.

[20]     The approach to be taken to appeals under s 121(3) were set out in Yorston v

Police where the Court said: [3]

[3] HC Auckland CRI-2010-404-164, 14 September 2010 at [13]–[15].

(a)       There  must  be  an  error  vitiating  the  lower  Court’s  original sentencing discretion: the appeal must proceed on an “error principle.”

(b)       To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)       It is only if an error of that character is involved that the appeal

Court should re-exercise the sentencing discretion.

[21]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.  There is nothing in the Supreme Court decision in Austin, Nichols and Co Inc v Stichting Lodestar,[4] which deals with the proper approach to be taken by an appellate court in general appeals, to show that decision was intended to apply in appeals against sentence.[5]

[4] [2007] NZSC 103, [2008] 2 NZLR 141.

[5] D v Police HC Tauranga CRI-2008-470-22, 9 September 2008 at [37] – [42].  See also Wright v

Police HC Whangarei CRI-2009-488-47, 20 October 2009 at [13] – [15].

[22]     The first issue of concern is that there was no reparation report sought by the sentencing Court.   Although a reparation report was not mandatory, the Court of Appeal has cautioned that it is unwise for a sentencing judge to order reparation without a report where there is evidence to suggest that the offender may not have

the means to make payment.[6]

[6] R v Quayle CA39/03, 3 July 2003 at [22]. See also R v Wonnacott [2009] NZCA 414 at [16] –

[20].

[23]     The  Judge  did  however  have  a  pre-sentence  report  which  indicated  that Mr Johnstone had $520 outstanding in fines and enforcement fees and noted that he currently  had  arrangements  in  place  with  the  Collections  Unit  of  the  Papakura District Court towards the repayment of these outstanding fines.  He was obviously unable to pay these.  The report also noted that Mr Johnstone was then in receipt of the sickness benefit for depression, which was being managed by his local General Practitioner.  The benefit was $160 per week.  Mr Johnstone also had a partner and two young daughters to support.

[24]     There  was  therefore  very  little  evidence  before  the  sentencing  judge  to indicate that  Mr Johnstone had  the  present  ability to  pay reparation.   The pre-

sentence report did, however, contain the following statement:

When canvassing his willingness to make amends, Mr Johnston was willing to enter into the Restorative Justice process and he was also willing to pay [the] whole amount owing in Reparation, once he has obtained employment.

Although Mr Johnstone had indicated that he was willing to pay the whole amount, this was conditional upon him obtaining employment.   Moreover, the fact that an offender undertakes to make reparation is not in itself sufficient to absolve the Judge of his or her responsibility to determine whether undue hardship would result from

the order.[7]     I am of the view that in the absence of any real information about

Mr Johnstone’s  means  to  pay  reparation,  a  reparation  report  should  have  been obtained.

[7] R v Cunard CA331/01, 3 December 2001 at [28], Williams v Police HC Auckland CRI-2008-

404-191, 8 September 2008 at [17].

[25]     Furthermore, if Mr Johnstone were to continue paying reparation at the rate ordered of $25 per week, it would take approximately 10 years for him to pay the total sum ordered by the sentencing Judge.   It is preferable, in my view, that a reparation order be able to be met within a shorter time period.   Relatively small payments over a lengthy period of time will not necessarily provide any significant benefit to the victim.

[26]     Taken  together,  these  circumstances  provide  grounds  for  quashing  the reparation order.  It is accordingly quashed.  I gave consideration as to whether or not I should order a reparation report and remit the matter to the District Court for resentencing as Cooper J did in Haa v Police[8] but I have taken the view that further delay is unwarranted. The appeal process has become too lengthy and complex. The issue needs to be dealt with promptly but fairly to both parties.

[8] Haa v Police HC Rotorua CRI 2005-463-00091, 22 November 2005.

[27]     In determining what is the appropriate reparation sum, the first point I note is that the quantum recoverable under a reparation order is usually divided among co- offenders to reflect their culpability.   However, where co-offenders have not been formally charged or convicted, a single offender may be held liable for the whole

amount as it is not possible to apportion the sum to parties that are not before the

Court.[9]     Judge Gaskell was aware that Mr Johnstone denied any involvement in removing the stolen property from the victim’s house.  However, she was correct in finding that since Mr Johnstone’s associates had not been identified, the appellant was still liable for the total amount of reparation.

[9] See Watters v Police HC Invercargill CRI-2007-425-43, 5 February 2008 at [4], Taua v Police

HC New Plymouth CRI-2009-043-22, 22 September 2009 at [9] – [10].

[28]     However, it is not necessarily the case that a single offender should always be liable for the total amount of reparation.  In Te Wake v R,[10]  Mr Te Wake and three others were convicted of aggravated robbery.  The Judge noted on sentencing that none of the offenders were in a position to offer reparation of $15,000 for a motor cycle, which remained unrecovered.   On appeal, Mr Te Wake offered the sum of

$3,750 to meet Mr Te Wake’s quarter share in the value of the motor cycle which had not been recovered.  The Court of Appeal considered that a reduction of 12 months from the starting point for Mr Te Wake’s sentence was justified by a combination of his personal circumstances and the payment of reparation.  A sentence of six years imprisonment was quashed and a sentence of five years imprisonment substituted with Mr Te Wake being ordered to pay reparation of $3,750 in respect of a quarter- share in the value of the motor cycle which had not been recovered.  No reparation order was however made in respect of the other three offenders.

[10] Te Wake v R [2012] NZCA 228.

[29]     The second point I note is that the original notice of appeal, filed on 22 June

2010, took issue with the quantum of the reparation sought, referring to the lack of receipts.    Reparation,  although  a  sentence,  is  compensatory.    Therefore,  it  is important for a Court to have a realistic assessment of the loss and/or damage to property suffered by the victim.   If a reparation report had been ordered by the sentencing court, a probation officer could have assessed the value of the loss and/or damage to property.  A probation officer preparing a report must endeavour to seek agreement between the offender and the victim as to the quantum of reparation. Where the parties are unable to reach agreement on the value or loss or damage, the probation officer may determine the value of the loss or damage on the evidence

available and report to the Court, or state in the report that the matter is unresolved.

Where the quantum of reparation is in dispute, a defendant is entitled to tender

evidence on matters referred to in the probation officer’s report.

[30]     In the present case, there was no reparation report and the Court accepted at face value a list of stolen property from the victim.   As noted above, the most valuable item was a 43” plasma television set in respect of which the victim attached an invoice dated 5 October 2005 in the sum of $4,200.  At the time it was stolen, the television set was therefore four years old.  I doubt that a four year old television set would have the same value for insurance purposes as at the time it was purchased. Moreover, the cost of plasma television sets has plummeted in recent years and a new 43” plasma television set can be purchased today for as little as $619.   It is therefore arguable that the victim’s loss or damage may not amount to $13,010. Mr Johnstone, however, never had the opportunity to dispute the amount of the reparation order.

[31]     Mr Johnstone’s circumstances have also changed since the reparation order was made.  He and his partner have another daughter to support.  He also advises me that he has overcome his alcohol addiction.  The focus of his life is now his partner and  their  three  daughters.    I was  impressed  by  Mr  Johnstone  and  how  he  has managed  to  turn  his  life  around  to  become  a  productive  member  of  society. Mr Johnstone has continued to pay $25 per week and, as at the date of the appeal hearing, has paid  a  total sum of $2,400  by way of reparation already.    Paying reparation  for  another  seven  years  would,  however,  in  my  view,  be  an  undue hardship for him.

[32]     In conclusion, I am not prepared to quash the reparation order in its entirety. While I have sympathy for the victim, and accept without hesitation her estimate of the costs of the property taken in the burglary, those costs do not necessarily equate to her loss given depreciation and the replacement costs for some of the property.

[33]     This factor taken together with the fact that Mr Johnstone was one of three offenders, and on his account, did not take part in the theft of property from the house together with the length of time over which reparation was payable persuades me that a more appropriate reparation sum is $4,340 or one-third of the initial cost of

the property taken in the burglary.  This would mean that Mr Johnstone will continue to pay reparation only for another one and half years rather than another seven years.

[34]     The appeal is allowed.   The reparation order is quashed and in its place a reparation order is made in the sum of $4,340, which Mr Johnstone is to continue to pay at $25 per week.

……………………………….

Woolford J