McFall v Police
[2016] NZHC 1989
•24 August 2016
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2016-425-15 [2016] NZHC 1989
BETWEEN BRANDON DAVID MCFALL
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 22 August 2016 Appearances:
J A T Ross for the Appellant
M G McClenaghan for the RespondentJudgment:
24 August 2016
JUDGMENT OF NICHOLAS DAVIDSON J (APPEAL AGAINST ORDER FOR REPARATION)
Background to Appeal
[1] Mr McFall appeals against an order for reparation in the sum of $281.75 after he had pleaded guilty to charges of burglary, breach of parole, threatening behaviour and unlawfully getting into a motor vehicle.
[2] The background to the offending involved Mr McFall and three others travelling in a vehicle which broke down in a rural area. Two of his associates went to a nearby property and stole a utility vehicle. Mr McFall got into that vehicle and they went back to Invercargill.
[3] He was part of a group that returned to tow the broken down vehicle back to
Invercargill. That group was stopped by the police. He at first denied any knowledge of the converted vehicle, but later admitted the facts.
MCFALL v NEW ZEALAND POLICE [2016] NZHC 1989 [24 August 2016]
[4] The vehicle was damaged after it was converted.
[5] On 23 May 2016 her Honour Judge Cook provided a sentence indication to Mr McFall.1 She indicated a sentence of nine months imprisonment. Mr McFall pleaded guilty. At sentencing Mr McFall’s willingness to attend restorative justice was brought to the Judge’s attention and a further half month deduction was made resulting in an end point of eight and a half months.2
[6] Judge Cook also ordered reparation. $1,127 worth of damage had been caused to the converted vehicle. Judge Cook split that four ways between Mr McFall and his three associates resulting in a reparation order of $281.75 against Mr McFall.
Jurisdiction
[7] Mr McFall is able to appeal the sentence as of right.3 The sentence will only be disturbed if the appellant can establish that there was an error in the sentence imposed and, importantly, that a different sentence should have been imposed.4
Despite the altered wording of appeal provisions under the Criminal Procedure Act 2011, the Court of Appeal has confirmed that the sentence appeal regime was not intended to signify a departure from the pre-Criminal Procedure Act regime.5
Submissions
For the appellant
[8] Mr McFall, through Mr Ross, takes issue with the order for reparation. He submits that he was not responsible for causing damage to the converted vehicle, and there was no sufficient connection between his crime of unlawfully getting into
the vehicle and the damage.
1 Police v McFall DC Invercargill CRI-2016-025-000088, 23 May 2016.
2 Police v McFall [2016] NZDC 11096.
3 Criminal Procedure Act 2011, s 244.
4 Section 250.
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
[9] He submits reparation should only be imposed where a person has suffered loss or damage through or by means of the offence committed. Damage to the vehicle was not an ingredient of his offence nor was he charged with wilful or criminal damage. The summary of facts did not state that the appellant caused any damage to the vehicle.
[10] On the facts, Mr Ross emphasised that the damage to the vehicle could not be attributed to the time when Mr McFall was in the vehicle. While a broad approach to reparation may be taken to those who joy-ride or use in converted vehicles, he submitted proof that Mr McFall was in the vehicle when this damage occurred was insufficient.
[11] Mr Ross agreed that an assessment of the likelihood of Mr McFall being in or associated with the vehicle at the time the damage occurred should be approached in a commonsense way. However, he said evidence must be to a sufficient standard, not beyond reasonable doubt, but compelling enough that he should bear responsibility as a participant in the use of a converted vehicle.
[12] Mr Ross submitted the reparation order should be set aside.
For the respondent
[13] The respondent through Mr McClenaghan submits that the purpose of reparation is to provide a simple and speedy means of compensating those who suffer loss from criminal activity. A broad and commonsense approach should be taken to reparation orders. Resort to refined causation arguments should not be encouraged.
[14] Mr McClenaghan accepts that it is not clear who caused the several elements of damage to the vehicle. However, it is clear that damage was caused to the vehicle between the time it was converted and located by the police the next day. From the appellant’s interview it appears he was in or involved with the converted vehicle the entire time between getting into it and it being parked up.
[15] Mr McClenaghan submits that there is a causal link between the appellant unlawfully getting into a vehicle and the damage caused to the vehicle and the damage was most likely caused when the appellant was in the vehicle, or associated with it.
[16] Mr McClenaghan says that the nature of the damage, which included damage to the handbrake, was consistent with the vehicle being used on the beach to do “wheelies” and the damage to the wing mirror was not something that was likely to have occurred in the time when the vehicle was first converted and driven to Invercargill, but in Invercargill. Mr McFall was not in the vehicle when it was first converted but was soon after. Hence, it was submitted the inference was well available that he was a sufficient participant in the conversion at the time the vehicle was damaged for a reparation order to be made against him.
Discussion
[17] The sentencing option of reparation is set out at s 32 of the Sentencing
Act 2002:
32. 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
...
[18] In Wilson v Police, Gallen J upheld a reparation order made against a passenger of a vehicle that had been unlawfully taken.6 The appellant had pleaded guilty to a charge of unlawfully taking a motor vehicle. A collision had occurred between the converted vehicle and a police car. It was argued that the damage occurred because the driver of the car panicked and that as the passenger the
appellant did not cause the damage. Although Gallen J did consider that some kind
6 Wilson v Police HC Napier AP60/94, 13 February 1995.
of causal connection is necessary, the damage does not need to be a direct result of the offending. The Judge stated:7
It seems to me that the section can reasonably be interpreted in a similar way to remoteness questions which arise in tort and that where it can be said a reasonable person could reasonably foresee the kind of damage which occurred as a result of the actions in which they participate, then the section applies.
In this case I think that a person who willingly takes part in the taking of a vehicle for the purposes of joyriding, can be reasonably expected to foresee that during the course of such behaviour, bearing in mind that it is being taken for the purposes of joyriding, that it is being taken without the consent of the owner and without the constraints that may apply in the case of a person who has some responsibility for the vehicle, may very well lead to the sort of consequence which occurred in this case.
[19] Tipping J in Wilmot v Police considered the situation where reparation had been ordered against the receiver of goods.8 He held that the then section dealing with reparation required a liberal interpretation within limits:9
There must… of course be limits. Nevertheless it can fairly be said that the policy of the reparation regime under the Criminal Justice Act 1985 must be regarded as justifying reparation when, by the offence in question, an offender has either caused the loss or damage or materially contributed thereto.
[20] The question which arises out of this case is whether Mr McFall contributed to the damage in a material way.
[21] The Court of Appeal thoroughly examined the proper interpretation of s 32 in R v Donaldson, citing both of the above cases.10 The Court considered that the retention of the words “through or by means of an offence” in the Sentencing Act 2002 was an endorsement by Parliament of the liberal and non-technical interpretation of the phrase under the predecessor sections.11 The Court noted that
the new s 32 uses the wording “caused a person to suffer” as opposed to “suffered
7 At 3.
8 Wilmot v Police HC Dunedin AP25/96, 15 July 1996.
9 At 3.
10 R v Donaldson CA 227/06, 2 October 2006.
through or by means of the offence” in the predecessor sections, although it did not consider that this dictated a change in approach.12
[22] The Court considered that the phrase “through or by means of an offence” is a wide expression without immediately obvious outer limits.13 For that reason help may be derived by resort to concepts of remoteness, materiality and intervening act, although a broad commonsense approach should always be taken and resort to refined causation arguments is best avoided.14
[23] Interpreting the section, the Court continued:
[37] The statutory phrase is in two disjunctive parts. The first is damage or harm caused “through” an offence. And the second is damage or harm caused “by means of” an offence. “Through” conveys a more direct connection between the offence and the damage or harm. In the present case, for example, damage to the premises in obtaining entry, or loss arising from the theft of items, would be caused through the offence itself.
[38] By contrast, the words “by means of” the offence contemplate a less direct association with the burglary. They capture damage or harm closely associated with the offence, although not necessarily arising from the very acts which constitute the definition of the offence. For example, a receiver who takes possession of a stolen car, and proceeds to dismantle it, causes damage or loss by means of the offence, albeit through actions committed when the offence was completed. Likewise in this case the fire damage was caused in close connection with the burglary and therefore, by means of it.
[24] Regard must be had to the offence that has been committed. Mr McFall was convicted of dishonestly and without claim of right getting into a vehicle. The offence is found in s 226(2) of the Crimes Act 1961:
226 Conversion of vehicle or other conveyance
…
(2) Every one is liable to imprisonment for a term not exceeding 2 years who attempts to commit the offence in subsection (1) or who, dishonestly and without claim of right, interferes with, or gets into or upon, any vehicle, ship, or aircraft.
[25] The offence contemplates unlawfully getting into a vehicle. “Dishonestly” is defined in s 217 of the Crimes Act as an act “done… without a belief that there was
12 At [32] and [33].
13 At [36].
express or implied consent to, or authority for, the act… from a person entitled to give such consent or authority”. That is, at the time of entering the vehicle it was known to be unlawful to do so.15
[26] The reasoning of Gallen J in Wilson v Police should then be applied here. Mr McFall knew that the vehicle had been unlawfully taken. He then chose to get into that vehicle. Where a person willingly participates in the dishonest use of a vehicle, he or she is part of an activity where it is reasonably foreseeable that damage may be done to that vehicle. The use of the vehicle is not that of the owner and the risk of damage must be recognised, and that is why reparation is appropriate for those who participate in the unlawful use of a vehicle.
[27] Mr Ross was right on point when he submitted that there must be evidence that the damage for which reparation is ordered is sufficiently associated with the use by the offender so that it can be attributed at least in part to that person. The proper inference available is that submitted by Mr McClenaghan and in the circumstances I am satisfied that the damage did occur to the vehicle while Mr McFall was in the vehicle unlawfully, or associated with its unlawful use, and he should bear part of the responsibility through the reparation order made.
Disposition
[28] The appeal is dismissed.
…………………………………………….
Nicholas Davidson J
Solicitors:
AWS Legal, Invercargill
Preston Russell Law (Crown Solicitor), Invercargill
15 Johnstone v Police [1962] NZLR 673 (SC) at 674.
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