Kempson v Police - [2021] NZHC 716

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-481-11

[2021] NZHC 716

BETWEEN
DAMIAN KLAUD DOUGLAS BENNET KEMPSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 23 March 2021

Counsel:

E Smith and Z S Meehan for Appellant N Azam for Crown

Judgment:

23 March 2021

ORAL JUDGMENT OF GRICE J

[1] This is an appeal against a sentence for reparation of $25,000. The appeal is based on the grounds that it is manifestly excessive.

[2] Mr Kempson pleaded guilty to driving while suspended and careless driving. He was driving while on a learner’s licence with passengers in the car at a time when he was suspended from driving for three months due to excessive demerit points.

[3] According to the summary of facts, Mr Kempson turned a hairpin corner at excessive speed and crashed into a train control unit. Mr Kempson said that a car crossed the centre of the line leaving him with no choice but to crash. No one was injured. I take the basis of the facts as those set out in the summary of facts and put to one side Mr Kempson’s explanation which appears to go more to a defence rather than to a reparation issue.

KEMPSON v NZ POLICE [2021] NZHC 716 [23 March 2021]

[4]According to KiwiRail, the damage caused to the unit amounted to

$151,479.30. The police sought this amount in reparation at the District Court.

[5] The appellant was discharged without conviction. The Judge disqualified him from holding or obtaining a driver’s licence for six months and ordered him to pay reparation. It is common ground that the reparations were ordered to be paid at $20 per week although that was not captured in the Judge’s note of his decision on the court file.

[6] The appellant appeals only in relation to the reparation order and as I have noted, the sentencing notes were brief, they ran to three lines. The law in relation to appeals indicates that an appeal against sentence is an appeal against the exercise of a discretion. Under s 250 of the Criminal Procedure Act the Court must allow an appeal if for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed. Although that section does not refer to manifestly excessive, that is the longstanding basis for the Court to interfere on an appeal. The appellate court should not tinker with an end sentence if it is within range, and I refer to Tutakangahau v R1 as well as Ripia v R2 in support of that proposition.

[7]Under s 251 of the Act, if the Court allows an appeal it must:

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

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

(c)remit the sentence to the court that imposed it and direct that court take…

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.

Keep reading for free

Create a free CaseChat account to read Kempson v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NZHC 716
Decision Date: 23 March 2021

CaseChat Overview and Summary

Damian Klaud Douglas Bennet Kempson appealed against a reparation order of $25,000 imposed by the District Court. The order was made following Kempson's guilty plea to driving while suspended and careless driving. The appeal was based on the ground that the reparation order was manifestly excessive. The District Court had ordered that Kempson pay $20 per week, which would take over 24 years to pay off. The appeal was heard by Grice J in the High Court of New Zealand. The legal issues before the Court were whether the reparation order was manifestly excessive and, if so, what the appropriate reparation amount should be.

The Court noted that reparation is a recognised purpose of sentencing and that when an offender is discharged without conviction, the Court is still entitled to order payment of a sum to compensate the person who suffered loss or damage to property. The amount of a reparation order must factor in the financial means of the offender, and future earning capacity can also be taken into account. The Court observed that sums paid over a period in excess of five years are generally regarded as excessive, although there have been instances of sums being paid over longer periods which have been upheld. The Court also noted that the Crown had responsibly acknowledged that the reparation here was excessive and both parties had agreed on the principles in relation to reparation.

The Court concluded that the order for $25,000 to be paid in $20 instalments was manifestly excessive and would cause undue hardship. The Court took into account Kempson's present circumstances, which included being in receipt of a Jobseeker Support Benefit, living with his parents in Otago, and being engaged with an organisation assisting him to find employment. The Court also noted that Kempson was willing to pay reparation at $20 per week. The Court quashed the reparation order made by the District Court and made an order for reparation of $3,000 to be paid in weekly instalments of $20 per week. The appeal was allowed and the order for reparation of $25,000 was quashed.

Orders