Martinson v Police

[2017] NZHC 2830

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2017-404-286 [2017] NZHC 2830

BETWEEN

RICHARD JOSEPH MARTINSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	14 November 2017
Counsel:	G Harvey for the Appellant K E Tuialii for the Respondent
Result:	14 November 2017
Reasons:	17 November 2017

REASONS JUDGMENT OF DUFFY J

This reasons for judgment was delivered by me on 17 November 2017 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel:

Mason Treloar Harvey, Pukekohe

Crown Solicitor, Manukau

MARTINSON v NEW ZEALAND POLICE [2017] NZHC 2830 [17 November 2017]

[1]      Following a Judge-alone trial in the District Court, the appellant, Richard Martinson, was found guilty of careless driving, threatening behaviour, and wilful damage.   He was ordered to pay $14,000 in reparation.   He appealed against the reparation order.

[2]      On 14 November 2017, I delivered a result judgment allowing the appeal. My reasons now follow.

The offending

[3]      The charges arose out of a single incident that occurred on 26 August 2016.  It began when Mr Martinson entered a roundabout and failed to give way to Mr Baird’s vehicle. Mr Baird had to brake sharply to avoid a collision, and sounded his horn. On exiting the roundabout onto Stadium Drive and hearing the sound of the horn, Mr Martinson stopped his vehicle, forcing Mr Baird to stop as well.   This meant Mr Baird’s vehicle, which was towing a trailer, temporarily blocked the roundabout.

[4]      Mr Martinson then pulled his vehicle into the flush median on Stadium Drive to turn right.  As Mr Baird’s vehicle passed him, Mr Martinson turned to the left, striking Mr Baird’s vehicle.  Mr Baird moved forward in an attempt to take evasive action, at which point Mr Martinson’s vehicle collected the trailer Mr Baird was towing.  Substantial damage was caused to Mr Baird’s vehicle and particularly to his trailer.

[5]      Mr Martinson exited his vehicle and approached Mr Baird’s front passenger door.  Finding it locked, he punched the vehicle’s side mirror, shattering the glass. When Mr Baird got out of his vehicle to inspect the damage, Mr Martinson yelled obscenities at him.  At one point he said “You should get back in your car right now before I put your body back in the van”.

[6]      As a result of the incident, Mr Martinson was convicted of careless driving,1

behaving threateningly,2 and wilful damage.3

[7]      Mr Baird’s victim impact statement records that he found Mr Martinson’s actions very intimidating, and that he believed Mr Martinson was going to assault him. He did not receive any injuries as a result of the crash.   He had obtained a quote of

$14,196.44 from Wallace Heron Ltd to repair his van and trailer.  He requires the van and trailer for use in his business.

Mr Martinson’s personal circumstances

[8]      Mr Martinson is 27 years old.   He has no previous criminal convictions. However, he has accumulated a number of demerit points due to speeding and certain unsafe manoeuvres on the road.

District Court sentencing

[9]      Having found the three charges against Mr Martinson proved, Judge Blackie proceeded to sentence him on 25 July 2017.4   He began by observing that Mr Baird had suffered damage to his vehicle and trailer totalling $14,196.44, as indicated in the quotations for repair that Mr Baird had produced.  Mr Martinson was not currently employed, but was in receipt of ACC benefits on account of an injury to his arm.  It would be some time before he was back in the workforce.   The Judge therefore concluded that the appropriate way of dealing with the charges was to make an order for reparation but with payment by instalments.  He did not view it as necessary to

impose any further penalty, given the sum that would need to be paid in reparation.

1      Mr Martinson was initially charged with dangerous driving under the Land Transport Act 1998, s

35(1)(b), which carries a maximum penalty of three months’ imprisonment or a fine not exceeding

$4,500, and mandatory disqualification from driving for at least six months.  However, he was found guilty on the lesser charge of careless driving under the Land Transport Act 1998, ss 8 and

37, which carries a maximum penalty of a fine not exceeding $3,000.

2      Summary Offences Act 1981, s 21; maximum penalty three months’ imprisonment or a fine not exceeding $2,000.

3      Summary Offences Act, s 11; maximum penalty three months’ imprisonment or a fine not exceeding $2,000.

4      Police v Martinson [2017] NZDC 19941.

[10]     On the charge of careless driving, the Judge ordered Mr Martinson to pay

$14,000 by way of reparation at the rate of $20 per week commencing on 1 August

2017.  He noted that this rate could be increased if and when Mr Martinson returned to employment.   On the remaining two charges Mr Martinson was convicted and discharged.

Submissions

Appellant

[11]    Mr Harvey for Mr Martinson raised two grounds on appeal against the imposition of the reparation order:

(a)       the Court erred in imposing reparation given Mr Martinson’s personal circumstances; and

(b)the amount of reparation imposed did not correspond to the evidence of damage, as heard during the course of the trial.

[12]     On the first ground, Mr Harvey submitted that Mr Martinson was not in a position to make meaningful reparation, let alone an amount as significant as $14,000. He notes that at a rate of $20 per week, $14,000 would take 13.5 years for Mr Martinson to pay off. Mr Harvey submits that reparation order has the effect of making Mr Martinson a bonded debtor for a very long period, and such small payments would not necessarily provide significant relief to the victim.  If the rate were increased to

$100 per week, the sum could be paid in under three years.   However, given Mr Martinson’s personal circumstances an increase to $100 per week would still be a highly unrealistic proposal and would result in undue financial hardship.  Mr Harvey submitted that the Judge should have called for a full reparation report, both to confirm the cost of repair and to determine Mr Martinson’s financial capacity and circumstances.  He argued that a lower sum in reparation should have been ordered.

[13]     On the second ground, Mr Harvey disputed the damage caused specifically to the trailer and the cost of repairing the trailer.  He pointed to the notes of evidence, in which Mr Baird describes the damage to the trailer as a “rub” rather than heavy impact.

Secondly he referred to an estimate by Wallace Heron that was before the Judge which quoted $11,549.60 to repair the trailer “to original condition”.  Mr Harvey submitted that the Judge accepted this estimate uncritically, when in fact it could be argued that the trailer is receiving betterment, namely being repaired above and beyond its pre- accident value. Mr Harvey submitted that some allowance is required for repair costs, taking into account fair wear and tear.

[14]     Mr Harvey submitted that the matter should be referred back to the District Court for re-assessment following the provision of a full reparation report, together with consideration of Mr Martinson’s ability to pay.

[15]     Mr Harvey attached two affidavits from Mr Martinson. In the first, he deposes that his weekly income from employment is $372, which (after outgoings) leaves him with only $2.10 per week. He also deposes that he currently owes debts of $17,293.02, excluding the $14,000 reparation order.   In the second affidavit, he attaches email correspondence with Wallace Heron about the repair quote, as well as the original quote.  Mr Harvey submitted that it is unclear whether the full repair quote, including the second page which contains further details, was provided to the District Court.

Respondent

[16]     On the first ground of appeal, Ms Tuialii for the Crown pointed out that the evidential onus is on Mr Martinson to demonstrate undue hardship in paying the sum in the reparation order. She submitted he has not done so. She contended that although the reparation order will take several years to discharge, it was a realistic order given Mr Martinson’s future earning capacity.  Regarding Mr Martinson’s present limited financial means, the Crown submits this may change in the future. As to Mr Martinson being a bonded debtor for a lengthy period, Ms Tuialii cited a number of cases in which sentences of reparation for longer periods have been upheld.

[17]     As to the second ground of appeal, namely quantum and betterment, Ms Tuialii submitted that there is no definitive evidence before the Court as to the state of the trailer before the accident. Accordingly the Court cannot properly assess the merit of this ground of appeal.   However, Ms Tuialii submitted that Judge Blackie, having

presided over the trial and heard all the evidence, was in a position to make a finding regarding the amount required to repair all damage.

[18]     Ms Tuialii acknowledged that no formal reparation report was provided in the present case, and that the Court may have been assisted by such a report.  She further acknowledged that it has previously been held that it is an error for the court not to order a reparation report before making a reparation order.

[19]     Despite no report being ordered, Ms Tuialii maintained that there was no error in imposing reparation at the quantum ordered.

Approach to appeal

[20]     Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal against sentence if satisfied that:

(a)       for any reason, there is an error in the sentence imposed on conviction;

and

(b)      a different sentence should be imposed.

[21]     In any other case, the Court must dismiss the appeal.5    It is well established that the High Court will not intervene where the sentence is within the range that can properly be  justified  by  accepted  sentencing  principles.   Whether  a  sentence  is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.6

Analysis

Relevant law

[22]     Section 12(1) of the Sentencing Act is the starting point for reparation orders:

12 Reparation

5      Criminal Procedure Act 2011, s 250(3).

6      Ripia v R [2011] NZCA 101 at [15].

(1) If a court is lawfully entitled under Part 2 to impose a sentence or order of reparation, it must impose it unless it is satisfied that the sentence or order would result in undue hardship for the offender or the dependants of the offender, or that any other special circumstances would make it inappropriate.

[23]     Section 32(1) (which is found in Part 2 of the Act) outlines when a Court may impose a sentence of reparation:

(1) A court may impose a sentence of reparation if an offender has, through or by means of an offence of which the offender is convicted, caused a person to suffer—

(a) loss of or damage to property; or

(b) emotional harm; or

(c) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property.

[24]     Mr Martinson’s offending caused loss or damage to Mr Baird’s property.  It follows that in the present case, the Judge was lawfully entitled and therefore obliged to impose a sentence of reparation unless doing so would result in undue hardship for Mr Martinson. There is an evidential onus on offenders who argue undue hardship to place before the Court evidence of their financial capacity.7   It has been held that:8

The word “undue” adds something more to the concept of hardship. It means an excessive hardship or a hardship greater than the circumstances warrant.

[25]     Even if “undue hardship” is not made out, s 35 gives the sentencing Judge “flexibility to tailor the sentence of reparation to meet the financial capacity of the offender”.9   It provides:

35 Taking into account financial capacity of offender

(1) If the offender has insufficient means to pay the total value of the loss, damage, or harm, the court may sentence the offender to make—

(a) reparation for any amount that is less than the value of the loss, damage, or harm; or

(b) payment by instalments in respect of the loss, damage, or harm; or

(c) both (a) and (b).

7      R v Thompson CA404/04, 19 October 2005 at [15].

8      Hunt v Police AP232/99, 29 September 1999.

9      R v Pender [2007] NZCA 465 at [15].

(2) Subsection (3) applies if the court is considering whether to impose—

(a) more than 1 sentence of reparation on an offender; or

(b) a sentence of reparation and a sentence of a fine on an offender; or

(c) a sentence of reparation on an offender who is subject to an earlier sentence or order of reparation or an earlier sentence of a fine, or a combination of any of those.

(3) The court must take into account that any payments received from the offender must be applied in the order of priority set out in sections 86E to

86G of the Summary Proceedings Act 1957.

[26]     The Court of Appeal has held that a reparation order must be set at a level which makes it realistic given the financial circumstances of the person against whom it was made.10  It is desirable that reparation orders do not bond debtors for many years to pay large sums by small weekly contributions.11  Where there is no realistic prospect of payment being made within “a very few years”, an order should not be made, at least not for the full amount sought.12     The courts have expressed the view that reparation orders requiring payment of instalments for longer than five years are inappropriate.13    On the other hand, as Ms Tuialii pointed out, the courts have on occasion approved reparation orders for periods of seven or eight years.14

[27]     Section 33 of the Sentencing Act allows a sentencing Judge to order the preparation of a reparation report to assist them in making a reparation order:

33 Court may order reparation report

(1) If the court considers that a sentence of reparation may be appropriate, the court may order a probation officer, or any other person designated by the court for the purpose, to prepare a reparation report for the court in accordance with section 34 on all or any of the following matters:

(a) in the case of loss of or damage to property, the value of that loss or damage and any consequential loss or damage:

10     R v Bailey CA306/03, 10 May 2004 at [25].

11     R v Morunga (2000) 17 CRNZ 396 (CA) at [12]; Guinness v Police [2015] NZHC 883 at [16].

12     Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA) at 157.

13     Guinness v Police [2015] NZHC 883 at [16]–[18], where Woodhouse J reviews the relevant authorities; cited with approval in Ebdale v Police [2015] NZHC 3154 at [6].

14     See R v Vallily CA251/04, 10 November 2004, where the Court of Appeal ordered reparation of

$40,000 at a rate of $5,000 per annum (eight years); Fannin v Police [2016] NZHC 168 where Hinton J ordered reparation of $36,400 by payments of $100 per week over a period of seven years.

(b) in the case of emotional harm, the nature of that harm and the value of any consequential loss or damage:

(c) in the case of any loss or damage consequential on physical harm —

(i)  the nature and value of the loss or damage; and

(ii) the amount or extent of compensation paid or payable under the Accident Compensation Act 2001 to the person who suffered the loss or damage in respect of that loss or damage:

(d) the financial capacity of the offender:

(e) the maximum amount that the offender is likely to be able to pay under a sentence of reparation:

(f)  the frequency and magnitude of any payments that should be required under a sentence of reparation, if provision for payment by instalments is thought desirable.

(2) The court may decline to seek a report under subsection (1) and impose a sentence of reparation without further inquiry if—

(a) the court is satisfied as to the amount of reparation that the offender should pay; or

(b) the type of information referred to in a reparation report is available through other means (including, without limitation, a declaration made following a direction under section 41); or

(c) in  all  the  circumstances  the  court  considers  that  a  report  is unnecessary.

(3) For the purposes of the preparation of a reparation report, a court may direct the offender to make a declaration as to his or her financial capacity in accordance with section 42.

[28]     The  wording  in  s  33(1)  indicates  that  seeking  a  reparation  report  is discretionary: it is not a mandatory pre-requisite for making a reparation order.15

However, s 33(2) gives specific guidance as to when it is appropriate to decline to seek a report. As the Crown acknowledges, in certain cases the sentencing Judge has been found to be in error for failing to seek a report before making a reparation order.  In Haa v Police,16  the District Court Judge had made a reparation order without first obtaining a report.  On appeal, Cooper J commented on the importance of the Court

being fully informed of the ability of an offender to pay reparation, especially where

15     R v Quayle CA39/03, 3 July 2003 at [20]; Haa v Police HC Rotorua CRI-2005-463-91, 22

November 2005 at [2].

16     Haa v Police, above n 15.

the sum is significant (as he considered it was in that case – $15,959).  He concluded that there was insufficient information before the Judge which could have enabled him properly to consider the question of undue hardship, or the offender’s ability to comply with a reparation order.

[29]     In Alexander v Police, issues arose as to the offender’s disposable income and ability to pay $5,000 in reparation.17   Heath J concluded that it was an error for the Judge not to order a reparation report because without that information, the Judge was not in a position to make a decision on the amount that should be ordered and how it should be paid.18    The Court of Appeal took a similar approach in R v Wonnacott, where a reparation report had been requested but had not been prepared in time for the sentencing:19

… the [reparation] orders were made without the Judge having the means to resolve the dispute over the value of the van or the detailed information about Ms Wonnacott's  personal and  financial  position  and her  ability to  make payments by instalments which a reparation report would have provided.

… Had the Judge obtained the report, he would have had sufficient information available to him to enable him to make an assessment of undue hardship under s 12 and of Ms Wonnacott’s means as required by s 35.

[30]     In Story v R, the Court of Appeal commented:20

We are satisfied that a total order of $10,000 is too high given these factors. The sentencing Judge did not have the assistance of a reparation report. While such a report might only have confirmed the obvious, we consider one should have been obtained before orders of this size were made. At the least the report may have served to focus everyone on what was achievable.

Present case

[31]     A reparation order of $14,000 is a significant sum.  The authorities indicate that where payment of a significant sum is ordered, it is best practice for the sentencing Judge to first seek a reparation report. Such a report will ensure the Judge is informed not only as to the nature and value of the loss or damage, but also as to the financial

capacity of the offender.  The Crown accepted that in the present case a report may

17     Alexander v Police [2015] NZHC 2730.

18 At [17].

19     R v Wonnacott [2009] NZCA 414 at [19]–[20].

20     Story v R [2012] NZCA 98 at [23].

well have been appropriate.   However, it contended that the sum ordered was nevertheless realistic.   Unfortunately it is difficult, if not impossible, to ascertain whether or not that is the case in the absence of a reparation report.

[32]     First, it appears that the Judge relied on a single quote from Wallace Heron as to repair of the van and trailer. As Mr Harvey submitted, it is not entirely clear to what standard the repair is being conducted: is the trailer being returned to an “as new” condition, or merely to a workable state? A reparation report, prepared by a probation officer in accordance with s 34 of the Sentencing Act, would have required a full inquiry into the value of the loss or damage caused, including an attempt to gain agreement between the offender and victim as to the value of the loss or damage.

[33]     Secondly, it is not clear what information the Judge had as to Mr Martinson’s financial means.  Counsel made oral submissions to Judge Blackie on this point, and no transcript has been made available to me. The Judge was aware that Mr Martinson was in receipt of an ACC benefit at the time of the hearing, but took into account his future earning capacity when he entered employment.  While the Judge was entitled to take this into account,21 it is not clear whether he was in a position to assess what kind of employment Mr Martinson would likely enter and how much he would likely be paid.   There is nothing to indicate that the Judge had before him information showing that Mr Martinson had good future prospects of earning a reasonable income. Mr Martinson’s affidavits filed on appeal indicate that while he is now in paid employment, he is paid only $372 per week, which I view to be a low income.  This leaves him with little remaining funds after paying outgoings.  Had the Judge been apprised of this information, he would have been better placed to decide whether to exercise his discretion under s 35 to reduce the reparation sum.  On the face of it, a period of 13.5 years to pay a reparation order – even allowing for a possible increase in the future if Mr Martinson’s earning capacity were to increase – is excessive.

[34]     In all the circumstances the Judge had insufficient information before him to enable him to assess the value of the loss or damage and Mr Martinson’s financial

means.  I consider that he should have obtained a reparation report.  I reiterate the views I expressed in Moshiem v Police:22

Whilst I agree with the respondent that a report will not always be needed, I consider that before deciding to dispense with a report, a sentencing judge should state in his or her sentencing notes:

a)    the reasons for dispensing with a report; and

b)    the information relied upon to support the amount and conditions of any reparation order that is made.

Unless reasons of this nature are given, it is not possible for an appellate court to know if there was a proper basis for dispensing with ordering a reparation report.

[35]     In the present case the Judge gave no reasons for dispensing with ordering a reparation report. Further, there is nothing in the information that was before the Judge that might explain why he dispensed with obtaining a reparation report.   Some explanation was called for.

Result

[36]     I accordingly allowed the appeal and set the reparation order aside. The matter was remitted to the District Court for reconsideration after a reparation report was obtained.

Duffy J