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 is unclear how the Judge determined that $40,700 payable over five years was realistic given this discussion.

My assessment

[7]      The payment  of reparation  is  governed  by s  12  and  ss  32  to  38  of the Sentencing Act 2002.   In short, 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.  If an offender has insufficient means to pay the total loss the Court may order reparation for a lesser amount  and that it  be paid in instalments.  It is well established that the amount to be repaid should be realistic

given the financial resources of the offender[2] and that it should not involve bonding

the offender for very long periods.[3]

[2] For example, R v Bailey CA306/03, 10 May 2004.

[3] R v Bailey CA306/03, 10 May 2004 at [25]; Ruka v Department of Social Welfare [1997] 1

NZLR 154 (CA) at 201; R v Vallily CA251/04, 10 November 2004 at [73]; Rihari v Department of Social Welfare (1991) 7 CRNZ 586 (HC) at 590.

[8]      In  this  case  Mr Leighton  is  presently  on  the  emergency  benefit  and  is servicing the reparation at $15 a week.  At that rate, the reparation will be paid in 52 years.  Counsel advises that Mr Leighton hopes to have work as a sales consultant within the next few weeks, although the proposed work involves 100% commission.

Counsel has provided information on Mr Leighton’s outgoings and existing debts.

Counsel submits that if Mr Leighton is able to meet his weekly sales targets, he could probably pay $40 a week for reparation.   At this rate, the amount ordered would be repaid in about 20 years.

[9]      I  agree  that  the  reparation  order  was  manifestly  excessive  in  light  of Mr Leighton’s financial position.   Even instalments of $40 a week is likely to be very difficult for Mr Leighton because of his other debts (accumulated as a result of his gambling problem) and because of the uncertainties with commission work. However Mr Leighton expects his employment prospects to improve when he has completed his community detention in December this year.  Therefore I accept that instalments at a rate of $40 a week is not unreasonable.  This is not much less than the $50 a week proposed by counsel for the police on this appeal.

[10]     The  real  difference  between  the  parties  is  the  period  over  which  the reparation should be paid.   Counsel for the police refers to R v Vallily[4]  and R v Creek[5] where reparation payable over eight years and nine and a half years respectively was imposed/upheld.  She submits that an eight year period would be appropriate here.  Counsel for Mr Leighton has provided a folder of authorities and a

summary of them which give a range of reparation orders of between two and a half to nine and a half years. [6]   On the basis of these cases he submits that a period of five years would be appropriate.

[4] R v Vallily CA251/04, 10 November 2004 (CA).

[5] R v Creek CA199/06, 17 August 2006 (CA).

[6] R v Bailey CA306/03, 10 May 2004; Kingi v New Zealand Police [2012] NZHC 1308 ; R v Donaldson CA227/06, 2 October 2006; R v Creek CA199/06, 17 August 2006; R v Brown CA267/92, 26 November 1992; Morris v New Zealand Police HC Wellington AP5/99, 3 March 1999; Hughes v Accident Rehabilitation Compensation and Insurance Corporation HC Hamilton AP17/97, 25 March 1997; Rihari v Department of Social Welfare (1991) 7 CRNZ 586 (HC).

[11]     I agree with counsel for Mr Leighton that a five year period is about right in this case.  That was the period that the District Court Judge apparently contemplated. Although some of the cases  relied on for Mr Leighton  were decided under the Criminal Justice Act 1985 (rather than the Sentencing Act), in Creek the Court of Appeal said that the nine and a half year period in that case was “longer than the

norm”.[7]    A distinguishing factor in that case from that here, is the amount of loss

[7] At [13].

suffered by the employer of the offender ($231,000 compared with $88,305).  A five year period in this case at the rate of $40 a week would mean a total reparation order of $10,400.  Rounding that up slightly gives a figure of $10,500.  It will take longer to pay this sum for the periods that Mr Leighton is unemployed or otherwise cannot meet the $40 a week rate.

Result

[12]     Accordingly the order of reparation made in the District Court is quashed.  It is replaced with an order to pay $10,500.   It may be paid by instalments at a rate arranged with the Collections Unit of the District Court, taking into account the expectation of $40 a week once Mr Leighton is receiving a steady income.

Mallon J

Solicitors:

Public Defender’s Office, Wellington for the Appellant

Crown Solicitor’s Office, Wellington for the Respondent