Leighton v Police - [2012] NZHC 1925

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-62 [2012] NZHC 1925

MARK TAMATI LEIGHTON
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 31 July 2012

Counsel: A Ewing for Respondent
M Robinson for Appellant

Judgment: 2 August 2012

JUDGMENT OF MALLON J

Contents

Introduction ....................................................................................................................................... [1] The offending ..................................................................................................................................... [3] The reparation order ........................................................................................................................ [5] My assessment ................................................................................................................................... [7]
Result ................................................................................................................................................ [12]

LEIGHTON v NEW ZEALAND POLICE HC WN CRI 2012-485-62 [2 August 2012]

Introduction

[1] Mr Leighton appeals against an order that he pay reparation of $40,700 on the grounds that it failed to take into account his ability to pay that sum and was manifestly excessive.

[2] The reparation order was imposed by the District Court when Mr Leighton was sentenced on 37 charges of theft in a special relationship.[1] Mr Leighton had entered guilty pleas to those charges and was sentenced to six months’ community detention, 12 months’ intensive supervision with conditions which included that he complete gambling counselling and a budgeting course and ordered to pay reparation of $40,700. The appeal is in respect of the reparation order only.

The offending

[1] Sections 220 and 223(a) of the Crimes Act 1961.

[3] Mr Leighton was employed as a technical sales member of a Wellington business. That business was a retailer of valves, controls, instrumentation, pipe and pipe fittings. Mr Leighton’s employment gave him access to the business’ computer system. Between September 2010 and September 2011, Mr Leighton accessed the computer system on 37 occasions to create false purchase orders and sales invoices for delivery of copper piping. He would then take possession of the copper piping from the ship, and cut the piping into smaller lengths so that they appeared to be off- cuts. He then took the piping to two separate scrap metal dealers and exchanged the piping for cash.

[4] In total Mr Leighton illegitimately ordered copper piping to the value of

$88,305.80 for which he received $46,901.55 from the scrap metal dealers. When spoken to by police, Mr Leighton admitted he had sold the copper piping because he
had a gambling problem and needed the money.

The reparation order

[5] In setting the amount of reparation the District Court Judge said this:

I have discussed with counsel a realistic reparation amount for you to pay over the next five years and I have determined upon the sum of $1100 on each of the 37 informations before the Court, and that is a total of $40,700. I do not consider that a greater amount for a person in your line of work would be at all feasible.

[6] Counsel for Mr Leighton advises that the discussion with the Judge was that Mr Leighton wanted to pay to his former employer as much as he could, that he was presently unemployed but wanted to find work and aspired to pay $50 a week. On behalf of the former employer, counsel for the police sought reparation of an amount between $50 and $100. It…

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 Leighton v Police

Details

AGLC: Leighton v Police [2012] NZHC 1925
Case: [2012] NZHC 1925
Decision Date: 2 August 2012

CaseChat Overview and Summary

The case of Leighton v Police involves the appeal by Mark Tamati Leighton against a reparation order imposed by the District Court. Leighton was sentenced on 37 charges of theft in a special relationship, for which he was sentenced to six months' community detention, 12 months' intensive supervision, and ordered to pay reparation of $40,700. The appeal focuses solely on the reparation order. Leighton argues that the order was manifestly excessive and failed to take into account his ability to pay. Leighton, who was employed as a technical sales member of a Wellington business, had access to the business's computer system and used it to create false purchase orders and sales invoices for copper piping. He then exchanged the piping for cash with scrap metal dealers, receiving a total of $46,901.55 from the fraudulent sales. The District Court imposed the reparation order based on a discussion with counsel, but it remains unclear how the court determined that $40,700 payable over five years was realistic given Leighton's financial situation.

The court examined the legal principles governing reparation orders under the Sentencing Act 2002. The court must impose the order unless it would result in undue hardship to the offender, or there are other special circumstances that would make it inappropriate. The amount should be realistic given the financial resources of the offender and should not involve bonding the offender for very long periods. Leighton, currently on the emergency benefit, is servicing the reparation at $15 a week, which would take 52 years to pay off. Counsel for Leighton suggested that if Leighton meets his weekly sales targets, he could probably pay $40 a week for reparation, which would take about 20 years. The court found that the reparation order was manifestly excessive in light of Leighton's financial position but agreed that instalments at a rate of $40 a week were not unreasonable. The primary difference between the parties was the period over which the reparation should be paid. Leighton argued for a five-year period, while counsel for the police submitted that an eight-year period would be appropriate. The court agreed with Leighton, considering a five-year period to be about right, resulting in a total reparation order of $10,500.

The court quashed the original reparation order and replaced it with an order to pay $10,500, payable by instalments at a rate arranged with the Collections Unit of the District Court, taking into account the expectation of $40 a week once Leighton is receiving a steady income. This decision ensures that the reparation order is realistic and takes into account Leighton's ability to pay, while still holding him accountable for his actions.

Orders