Lamont v Police
[2016] NZHC 1341
•21 June 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-000078 [2016] NZHC 1341
BETWEEN BRYCE LAMONT
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 20 June 2016 Appearances:
J D Pennick for Appellant
A Park for RespondentJudgment:
21 June 2016
JUDGMENT OF GILBERT J
This judgment is delivered by me on 21 June 2016 at 3 pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Counsel/Solicitor:
J D Pennick, Barrister, Auckland
Merediths, Auckland (A Park)
LAMONT v NEW ZEALAND POLICE [2016] NZHC 1341 [21 June 2016]
Introduction
[1] Mr Lamont applies for leave to appeal, six and a half years out of time, against an order made on 12 August 2009 requiring him to pay reparation in the sum of $26,507.13 at the rate of $100 per week.
[2] Mr Lamont says that he was not aware that he had a right to appeal against the order until he discussed the matter with a duty solicitor in 2013. He says that he chose not to pursue an appeal at that stage because he wanted to attempt to pay the reparation. However, he says that he has been unable to earn at a level that will enable him to do this and meet his other commitments which include outstanding fines and debts for child support, GST and PAYE. Mr Lamont has only paid approximately $1,000 which equates to a little over $3 per week since the order became operative following his release from prison.
[3] If Mr Lamont is given leave to appeal, he wishes to argue that the Judge was wrong to order reparation at the rate of $100 per week even though this was the amount Mr Lamont had offered to pay. Mr Lamont says that his offer was made in the expectation that he would not be imprisoned and his employment would continue.
Background
[4] On 7 November 2008, Mr Lamont pleaded guilty to two charges of obtaining by deception and nine charges of using a document to obtain a pecuniary advantage. These charges arose out of Mr Lamont’s former employment as a collections officer for a company that was involved in leasing motor vehicles and machinery to businesses and private individuals. One of Mr Lamont’s duties was to facilitate credit payments to clients. On 11 occasions over the period from 23 January 2006 to
13 June 2008, he completed legitimate remittance advice forms but substituted his own bank account details for those of the clients. He obtained $26,507.13 as a result of these fraudulent activities.
[5] When the offending was discovered, Mr Lamont offered his resignation and this was accepted. However, by the time he was sentenced on 12 August 2009,
Mr Lamont had gained employment under contract to a company engaged in the marine industry and was earning on average $800 per week.
[6] Because of the seriousness of the charges and Mr Lamont’s prior convictions, including numerous offences involving dishonesty, the probation officer recommended a sentence of imprisonment and an order requiring Mr Lamont to pay reparation. Judge Cadenhead sentenced Mr Lamont to nine months’ imprisonment and ordered him to pay reparation in the sum of $26,507.13 at the rate of $100 per
week commencing one month after he was released from prison.1
Legal principles
[7] The application is governed by the Summary Proceedings Act 1957 (the Act) because the charges were laid prior to the commencement date of the Criminal Procedure Act 2011. Section 116 of the Act provides that a notice of appeal must be filed within 28 days of sentence. However, the Court has power to extend time under s 123:
123 Powers of the High Court as to extension of time
(1) Any Judge of the High Court may, on the application of the appellant or intending appellant, extend any time prescribed or allowed under this part for the filing of any notice or the stating of any case or the doing of any other thing in respect of any appeal or proposed appeal to the High Court.
[8] The applicable legal test was set out by the Court of Appeal in R v Knight as follows:2
The applicant must demonstrate some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given. Amongst the considerations which will also be relevant in that overall assessment are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.
1 Police v Lamont DC Auckland CRI-2008-004-021553, 12 August 2009.
2 R v Knight [1998] 1 NZLR 583 (CA) at 587.
Analysis
Strength of the proposed appeal
[9] In his notice of appeal filed on 14 March 2016, Mr Lamont identified the following grounds of appeal against the reparation order:
26,000 reparation order was not consistent with the law, and should have been lower.
Interests not considered when sentencing. No victim impact statement.
Order could not possibly have been met. Insufficient representation (legal) at sentencing.
[10] There is nothing in a number of these proposed grounds and Mr Pennick, quite properly, did not pursue them in his careful submissions. A detailed victim impact statement was prepared and provided to the Judge at sentencing, as was a reparation report confirming that the amount Mr Lamont fraudulently obtained from his employer was $26,507.13. Mr Lamont was represented by experienced counsel, John Wiles.
[11] Mr Pennick refined the proposed ground of appeal in his memorandum as follows:
… the Judge plainly erred in failing to take into account the impact that a sentence of imprisonment would have on Mr Lamont’s ability to meet the reparation order.
[12] Mr Pennick referred to the authorities that establish that a reparation order should not bond an offender to the Court for extreme periods of time. He submitted that the Judge ought to have appreciated that Mr Lamont would face considerable difficulty in finding fresh employment upon his release from prison and that it was likely to take an excessively long time for Mr Lamont to make complete reparation.
[13] For the reasons that follow, I consider that the proposed appeal has little prospect of success.
[14] There is no dispute about the amount required to make reparation. The probation report recorded that Mr Lamont had expressed remorse for his offending,
felt “terrible” for having let his employer down, and was willing to pay reparation at the rate of $100 per week. The probation officer recommended a sentence of imprisonment coupled with an order for reparation.
[15] The reparation report detailed Mr Lamont’s gross income and expenses. It confirmed that he had disposable income in excess of $200 per week and could expect to be able to pay the amount offered of $100 per week. This report reiterated Mr Lamont’s willingness to pay this amount.
[16] Mr Lamont will have been aware of the contents of these reports at the time of sentencing. He must have appreciated that a sentence of imprisonment was a likely outcome. He did not make his reparation offer conditional on him receiving a community-based sentence. Mr Lamont says in his affidavit in support of the present application that he did not ask his counsel at the time, Mr Wiles, to make any submissions regarding reparation and none were made. This is supported by the Judge’s sentencing notes. The order appears to have been made without opposition in accordance with Mr Lamont’s proposal.
[17] It is difficult to see what error the Judge made in these circumstances. The Judge recognised that Mr Lamont’s contract work would cease while Mr Lamont was incarcerated. The Judge suspended the commencement of the order to take account of this. Mr Lamont’s earning capacity may have been affected by his dishonesty convictions, including those involving theft as a servant, but these were entered on 7 November 2008, nine months before he was sentenced. The reparation offer was based on Mr Lamont’s proven earning capacity as a contractor in the intervening period, taking into account the present convictions and his prior dishonesty convictions. I consider that the Judge was entitled to assume that Mr Lamont would be able to achieve similar earnings following his release from prison and that Mr Lamont shared this expectation by making his reparation offer on an unconditional basis. Mr Lamont himself says in his affidavit that it is his conviction history, rather than the period of imprisonment, that has made it difficult for him to find work.
[18] Had the order been complied with, it would have taken approximately five years to discharge. Mr Pennick accepts that this would not have amounted to undue hardship. The real problem, he contends, is that the Judge should have concluded that Mr Lamont would not be able to make the payments. For the reasons given, I consider that Mr Lamont would face considerable difficulty demonstrating that the Judge made any appealable error, if leave to appeal was granted.
Practical utility of the order sought
[19] Mr Pennick submits that at the time the reparation order was made there was no provision enabling such orders to be reviewed. He says that this power was not created until 2012 when s 38A of the Sentencing Act 2002 was enacted. Although this provision is available to Mr Lamont, Mr Pennick submits that it is poorly suited to dealing with his circumstances. The only potentially applicable ground is that Mr Lamont’s financial position has changed significantly since the sentence was imposed. However, Mr Pennick argues that Mr Lamont’s financial position has not substantially changed since the sentence was imposed. Rather, he contends that it was the sentence of imprisonment that has changed Mr Lamont’s financial position. For this reason, Mr Pennick says that the only effective way of addressing Mr Lamont’s predicament is through an appeal.
[20] This submission overlooks s 145 of the Sentencing Act which conferred power on the Court (as at 2009) to grant relief from reparation orders in the same way as it could for fines under Part 3 of the Summary Proceedings Act. Section 88 of the Summary Proceedings Act applies in cases where the Registrar is satisfied that the defendant does not have the means to pay a fine. In that circumstance, a District Court Judge has various powers under s 88AE to address the situation, including by
imposing some other sentence or remitting the fine or part of it.3
[21] I also doubt that Mr Pennick’s analysis relating to Mr Lamont’s change of
circumstances is correct. If Mr Lamont can demonstrate that he cannot earn at the
3 Although s 88AE was only inserted into the Act on 13 February 2012 by s 25 of the Summary Proceedings Amendment Act 2011 (2011 No 32), the transitional provision under that Act, s 47, means it applies to fines ordered before the commencement of the Act. Other provisions of the Act also allowed the Registrar to take steps to reconsider a fine imposed under the Act prior to that.
same level that he was at the time he was sentenced, this would be a change in his financial position since the sentence was imposed. Further, it appears from Mr Lamont’s affidavit that he has additional commitments that he did not have when he was sentenced. He now has three children, aged two, six and seven. It would not be appropriate to give any indication as to whether an application for relief would succeed. However, if Mr Lamont’s financial position has changed significantly, this would appear to be the most appropriate course for him to take.
Length of the delay
[22] Mr Lamont had 28 days within which to appeal. This period expired on
9 September 2009. His appeal was filed on 14 March 2016 and his application for leave was filed on 1 June 2016. The appeal was filed just over six and a half years out of time. By any measure, the delay is inordinate.
Reasons for the delay
[23] Mr Lamont says that he did not appeal for many years because he was not aware that he could. I have difficulty accepting this. Mr Lamont was represented by experienced counsel at the time of sentencing. He also had considerable experience with the criminal justice system and has numerous convictions dating back to 1987. I consider it unlikely that he did not know that he had a right to appeal against the sentence.
[24] Mr Lamont knew that a sentence of imprisonment had been recommended by the probation officer in the pre-sentence report. He must have known that a sentence of imprisonment was a likely outcome in the light of that recommendation and having regard to the seriousness of the index offending and his previous convictions for offences involving dishonesty. Mr Lamont must also have appreciated that a sentence of reparation was likely and that this would be fixed at $100 per week in accordance with his offer. He did not instruct Mr Wiles to oppose such an order being made. Mr Lamont said that he felt “terrible” and wished to make amends by repaying the money he had stolen.
[25] The likely explanation for the delay in seeking leave to appeal is that Mr Lamont was unsurprised by the sentence at the time and did not consider that there was any basis to challenge it. The subsequent change in his circumstances may justify consideration of an application for relief against the order for reparation. However, Mr Lamont has not provided an adequate explanation for his delay in seeking to challenge the order as one that should not to have been made. On Mr Lamont’s own account, he was aware of his right to appeal in 2013 and yet he delayed for another three years before seeking leave to appeal.
Prejudice to the Crown
[26] Ms Park submits that the Crown would be prejudiced if leave to appeal is granted after such a lengthy delay because the police file relating to the proceeding in the District Court is no longer available. Apart from this specific prejudice, there is also a powerful public interest in finality to litigation. This serves the interests of victims, witnesses and society generally.
Conclusion
[27] Mr Lamont has not demonstrated that this case has special features that require leave to be given in the interests of justice. The proposed appeal lacks merit. The delay is inordinate and has not been satisfactorily explained. There is no risk of a miscarriage of justice. Mr Lamont has other avenues for redress. In my view, the interests of justice require that the application for leave to appeal be declined.
Result
[28] The application for leave to appeal is dismissed.
M A Gilbert J
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