Kennett v Police - [2014] NZHC 231

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2013-409-80 [2014] NZHC 231

NATHAN STUART KENNETT Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 20 February 2014

Appearances: M M Cole and R M Matheson for Appellant
C Newman for Respondent

Judgment: 20 February 2014

JUDGMENT OF MANDER J

Introduction

[1] The appellant was sentenced in the Christchurch District Court by Judge MacAskill on a charge of burglary which involved the theft of golf equipment from the Clearwater Golf Course. He was also sentenced at that time on a range of other offending which is not relevant for the purposes of this appeal. On the burglary which was taken as the lead charge, the appellant was sentenced to imprisonment for
19 months and ordered to pay reparation in the sum of $17,937.20. It is against that reparation order that this appeal lies.

Facts

[2] The burglary involved the entering of a marquee which contained promotional golf equipment and apparel. Golf bags, clubs, promotional items and
other clothing and accessories were stolen.

KENNETT v NEW ZEALAND POLICE [2014] NZHC 231 [20 February 2014]

[3] Some two weeks after the burglary the police executed a search warrant at the appellant’s house and located several items of stolen property. The appellant admitted selling one of the items stolen on Trade Me and advised of his intention to sell the majority by the same method. The genesis of this appeal lies with what equipment was recovered by the police and in what condition; and what property remained missing.

The District Court reparation order

[4] Judge MacAskill in sentencing the appellant had available to him a reparation schedule attached to the police summary of facts which recorded a total reparation sum of $17,937.70 payable to the insurance company Farmers Mutual Group (FMG). The Department of Corrections, in a document prepared for the Court entitled “Provision of Advice to Courts Including Reparation”, advised that the victim of the burglary had made a claim to its insurance company and been reimbursed by them to the sum of $15,937.70. A $2,000 insurance excess had been incurred by the owners of the golf gear. The insurance company advised that there were some damaged items which had been paid out on that were now in their care and it would be looking to sell more items to recover some of the claim costs. At that time it was not possible to anticipate how much money would be raised to offset these claim costs.

[5] The report recorded that the appellant while accepting responsibility for the burglary disputed the amount of reparation being sought. He maintained that most of the stolen items were recovered when the search warrant was executed and that on this basis he was of the opinion that the reparation sought should be of a lower amount. He stated he would be willing to pay reparation of a lower amount if this was ordered subject to him having the financial means upon his release.

[6] In sentencing the…

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 Kennett v Police

Details

AGLC: Kennett v Police [2014] NZHC 231
Case: [2014] NZHC 231
Decision Date: 20 February 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Nathan Stuart Kennett appealed against the reparation order imposed by Judge MacAskill in the Christchurch District Court. The appeal focused on the reparation order for a burglary charge, which involved the theft of golf equipment from the Clearwater Golf Course. Kennett was sentenced to imprisonment for 19 months and ordered to pay reparation in the sum of $17,937.20. The appeal was against this reparation order.

The legal issues in this case revolved around whether the sentencing Judge had properly assessed the amount of reparation owed and whether the Judge had sufficiently considered Kennett's financial and personal circumstances, as well as the potential undue hardship that the reparation order might cause. The appeal court needed to determine if the reparation order should be quashed or revised to a significantly reduced sum.

The Court found that the original reparation order would result in undue hardship for Kennett and be counterproductive to his rehabilitation. The Court acknowledged that Kennett had insufficient means to pay the original reparation figure, and that allowing the order to stand would result in undue hardship. The Court also considered that imposing any reparation might be considered as a token and an obstacle to Kennett making a fresh start. However, the Court emphasised that Kennett needed to be conscious of the harm caused by his offending and the cost to others that resulted from his actions. The appeal was allowed, and the original reparation order was quashed. In its place, a reparation order in the sum of $2,000 ($500 to the victim of the burglary and $1,500 to FMG) was imposed, with the payment rate to be fixed by the Registrar as originally ordered.

Orders