O'Byrne v The King
[2025] NZHC 1471
•5 June 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-247
[2025] NZHC 1471
BETWEEN ROGER WILLIAM O’BYRNE
Appellant
AND
THE KING
Respondent
Hearing: 29 May 2025 Appearances:
H A Evans and V P Kenworthy for Appellant G J Barrett for the Crown
Judgment:
5 June 2025
JUDGMENT OF OSBORNE J
[on sentence appeal]
Introduction
[1] Roger O’Byrne (aged 73) was sentenced by Judge B P Callaghan on 11 September 2024 on a charge of wilful damage—1an offence2 of which he had been convicted following trial.3 The offending involved excavating a large trench across his victim’s driveway during heavy rain to enable flood water to flow off Mr O’Byrne’s land. The Judge imposed a sentence of “actual reparation” of $4,221.37 and emotional harm reparation of $1,000, together with court costs.
1 R v O’Byrne [2024] NZDC 32326.
2 Summary Offences Act 1981, s 11(1)(a)—maximum penalty: three months’ imprisonment or a fine not exceeding $2,000.
3 R v O’Byrne [2024] NZDC 5720.
O’BYRNE v R [2025] NZHC 1471 [5 June 2025]
[2] Mr O’Byrne, by his notice of appeal, appeals both the actual reparation and the emotional harm reparation orders. His grounds of appeal, however, focused on the actual reparation order, asserting:
(a)there was insufficient evidence to support a reparation figure of
$4,221.37;
(b)the complainant ought to have had adequate drainage on her property;
(c)the reparation order, in covering the cost of new drainage, involved an element of betterment that the appellant should not have been required to pay for.
Factual background
[3] Mr O’Byrne and the victim are neighbours in rural North Canterbury. On 13 February 2022, there was cyclonic rain causing substantial flooding through the district. Mr O’Byrne drove a digger through a gate adjoining the victim’s driveway and used it to dig a trench across the victim’s driveway. This was in an effort to alleviate what he said were flood waters on his property which were threatening a portion of his crops.
[4] The victim tried to stop Mr O’Byrne by standing in front of the approaching digger, but Mr O’Byrne continued to drive forwards onto the victim’s driveway. A confrontation between Mr O’Byrne and the victim ensued, which was filmed by Mr O’Byrne’s son.
[5] The digging of the trench left the victim’s driveway inoperable until urgent repairs were carried out the following day (resulting in an invoice of $1,127.29).
[6] Two weeks after the incident, Mr O’Byrne issued an invoice to the victim in which he purported to charge her $210 for two hours’ work with his digger.
[7] Subsequently, the victim had permanent repairs effected on the driveway (resulting in an invoice of $3,094.08).
Victim impact statement
[8] The victim (65 years of age) described her ongoing anxiety caused by the large digger being relentlessly driven towards her—Mr O’Byrne appeared to her as an implacable and hostile driver. The victim watched as Mr O’Byrne destroyed part of her driveway and swept away the fences on either side, whilst Mr O’Byrne’s son videoed her distress. The victim says the incident was “one of the most unnerving experiences of [her] life”.
[9] As observed by the District Court Judge, the victim was badly affected by Mr O’Byrne’s offending, as were her neighbours, all of whom were left with no established way out of their properties for the time being, with flooding all around.
District Court decision
[10]The Judge sentenced Mr O’Byrne to pay by way of “actual reparation”
$4,221.37. This sum had been claimed by the victim as the cost of the urgent repair to make the driveway accessible and then the permanent repair. The victim had provided as attachments to her victim impact statement, before Mr O’Byrne was sentenced, her two invoices described by her as necessary “to fix the drive to the standard it was before the damage”. As the detail of the invoices assumes significance in the context of Mr Evans’ submissions they are attached as Schedules 1 and 2 to this judgment.
[11] Mr Evans confirmed at this appeal hearing that it is this actual reparation order that is pursued on appeal. To the extent the grounds of appeal identified also the emotional harm reparation Mr Evans confirmed that aspect of the appeal was abandoned.
Principles on appeal
[12] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 As
4 Criminal Procedure Act 2011, ss 250(2) and 250(3).
the Court of Appeal stated in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.5 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.6
Proposed new evidence
[13] Mr Evans submits the reparation sum of $4,221.37 is unrelated to the simple task of refilling the trench. He notes the invoices indicate the contractor was involved in obtaining and installing new pipes, an expense Mr Evans submits involves betterment, not caused by Mr O’Byrne’s offending. Mr O’Byrne gave evidence at the trial that he had left the original pipes untouched—they were further along the driveway from the area excavated.
[14] Mr Evans had submitted a letter Mr O’Byrne obtained from “Nigel Winter Excavation” dated 6 May 2025 and addressed “To Whom it May Concern”. In the letter, Mr Winter stated he was asked by Mr O’Byrne to quote on a job on a neighbour’s driveway. He recorded he had been to the site and examined the driveway. He states that from his examination, the job would take “30 minutes at most”. With a charge-out rate of $150 per hour plus GST he states the cost of pushing about two cubic metres of fill back into the trench would be $86.25. Mr Winter made no reference to replacing shingle back over the driveway, a category of cost that accounts for more than half the victim’s $4,221.37 invoice. Mr Winter makes no reference to the significant time that he would have been entitled to account for in driving between his base in Sheffield to the Fernside address.
[15] Ms Barrett, for the respondent, opposed the court receiving Mr Winter’s letter. Ms Barrett noted the absence of an application to rely on fresh evidence. Should the court consider admitting the letter, Ms Barrett submitted it does not meet a reliability test, as it is unsupported by an affidavit and the instructions given to Mr Winter for the purposes of his “quote” are not disclosed.
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
6 Ripia v R [2011] NZCA 101 at [15].
[16] In preparation for the hearing I had carefully considered Mr Winter’s letter and provisionally viewed it as not meeting the threshold of credibility and cogency. It transpired that Mr Evans did not seek to adduce Mr Winter’s letter at the hearing. I consider that concession to have been entirely appropriate—I would not have received the letter. But I have set out observations above as to the letter as they point to the unrealistic expectation Mr O’Byrne has maintained as to the level of cost that his excavation of the driveway caused.7
[17] Mr Evans’ synopsis, filed in advance of the hearing, had raised a discrete argument, not identified by the grounds of appeal. This argument would have required the court to consider the Canterbury Regional Council Flood Protection and Drainage Bylaw 2013 (Bylaw), and in particular cl 5.2 relating to floodways. The submission made for Mr O’Byrne was that the driveway, as previously altered by the victim, was an illegal structure because the victim, in breach of cl 5.2, had altered a floodway, placed material that could impede or deflect flood or drainage flows, and had constructed a structure over the floodway.
[18] Mr Evans’ submitted Mr O’Byrne could not be expected to meet the entire cost of bringing the driveway into compliance with the Bylaw, which is, in his submission, what the $4,221.37 costs incurred by the victim involved. That, in Mr Evans’ submission, constituted betterment.
[19] At the hearing, Mr Evans abandoned reliance on this Bylaw argument. I consider that was appropriate—had it been pursued I would have found it did not assist, as the expert opinion evidence required to meaningfully assess whether the Bylaw was engaged had not been adduced.
The sentence of reparation
[20] Section 32(1) Sentencing Act 2002 (the Act) empowers the court to impose a sentence of reparation where a convicted offender has caused a person to suffer loss of or damage to property or (under subs (1)(c)) consequential loss or damage on either of those.
7 Mark v R [2019] NZCA 121 at [16].
Was the reparation order excessive and did it involve betterment?
[21] Mr Evans introduced his synopsis on the reparation ordered by reference to the decision of this Court in Robinson v R.8 There, the District Court imposed a reparation order of $7,757.90 based on a quotation obtained by the complainant’s insurer for remediation of a fence damaged by the defendant. Mr Robinson, for the purpose of the appeal, had obtained a builder’s quotation to reinstate the fence for the sum of
$1,759.28. Lang J, having regard to the provisions of s 32(3) of the Act (which requires the court to take into account any right available to the complainant to bring proceedings) set aside the reparation order and ordered instead payment and reparation to the complainant’s insurer in the sum identified in Mr Robinson’s quotation. The Judge observed the insurer would “have the ability to recover the cost of reinstating the fence if they wish to do so”.9
[22] Here, Mr Evans submitted the District Court reparation order involved compensation for betterment. Mr Evans referred to evidence Mr O’Byrne gave at his trial, in which he confirmed he left the original pipes untouched when he dug up the driveway. Mr Evans stated that Mr O’Byrne is aware the victim has installed new larger pipes in the driveway (in a different location from where Mr O’Byrne excavated the trench) and had done so in a manner that improved the driveway from its original condition, including the addition of a new top course (or shingle).
[23] Mr Evans at the hearing also took me to three passages in the evidence of the victim, which I fully quote having regard to the primary emphasis Mr Evans gave them:
(a)Passage 1
Q. How much did that cost?
A. It cost 1,200-odd dollars.
Q. Was that a temporary fix or a permanent fix?
A. Very temporary.
8 Robinson v R [2020] NZHC 1711.
9 At [20].
Q. And what did that involve?
A. It basically just involved buying a pipe, putting it in there and pushing the fill back over it.
(b)Passage 2:
Q. And so where the trench was dug was some piping that was draining the water, is that right?
A.No the trench was dug before where my pipes were draining the water and it was uphill a bit so it did drain the water at the time, ‘cos there was quite a lot of water, but when it had drain mainly it was my pipe, my original pipes that were still draining the water.
(c)Passage 3:
Q. Were they damaged, those pipes, by this?
A. Pardon, Sir?
Q. Were the pipes damaged, the ones you had in place?
A.No, no they weren’t. They were still there and draining, and the trench that was dug was above them. Though the exit point of both the pipes was in, just about the same, position. On the right-hand side of the driveway looking.
[24] Mr Evans submitted that the evidence of Mr O’Byrne and the victim, taken together, clearly establishes the victim’s installation of new culverts in her repair of the driveway was unnecessary in the sense her existing pipes had been at a different location, and therefore the additional culverts constituted betterment.
[25] Mr Evans, in anticipation Mr Winter’s letter would be received in evidence, had invited me to view Mr Winter’s “quote” of $86.25 as a more appropriate sum of reparation, based on the approach taken in Robinson.
[26] Once Mr Evans withdrew the request for the Court to receive Mr Winter’s letter, he was left with no additional information to assist the Court to identify what might be a sum that represented the repair cost excluding any element of betterment. When I pressed Mr Evans to assist the Court with what of the $4,221.37 the District Court should have awarded, he emphasised that his instructions were that there should have been no actual reparation order at all.
[27] I then took Mr Evans to the invoices (Schedules A and B to this judgment) to consider, as an example, the laying of shingle or course. It seems obvious that when a driveway has been excavated, and then fill has been placed back in, it will need compacting, followed by re-shingling, and then perhaps compacting again. I understood Mr Evans to accept, on that basis, at least some of the items in the invoices would be properly the subject of reparation.
[28] As Mr Evans, in the course of his submissions, did not recognise any scope for the District Court to include the acquisition and installation of culverts, I will discuss that aspect of the invoices in my analysis (below at [35] – [37]).
[29] I also asked Mr Evans to clarify whether Mr O’Byrne accepted, on the basis the first invoices represented urgent repairs the day after the storm, that the driveway was likely to require a permanent repair when all the consequences of the storm had passed. Mr Evans did not accept the cost of a later, permanent repair was reasonable.
[30] For the respondent, Ms Barrett noted the invoices provided by the victim at the time of sentencing were not disputed by Mr O’Byrne. Nor did Mr O’Byrne seek to have the court obtain a reparation report (as he could have under ss 33 and 34 of the Act). That would have provided for the investigation of damage and an attempt to reach agreement on the value of claimed damage. In the absence of such a response by Mr O’Byrne, Ms Barrett submitted the District Court was therefore entitled to proceed on the basis of the information provided by the victim, namely that the full
$4,221.37 had been outlaid initially to make the drive accessible and then to fix the drive to the standard it was before the damage.
Analysis
[31] This case does not have the overlay of the insurance cover issue that led to the allowing of the appeal in Robinson, and substitution of a lesser reparation order. I therefore do not find the decision in Robinson of assistance here.
[32] Counsel shortly before the hearing drew my attention to the judgment of Churchman J in Chapman v Police.10 In that case Mr Chapman had been ordered to pay $2,595.41 as reparation for wilful damage to a car, on the basis of the lower of two quotations obtained by the victim. Mr Chapman, at his District Court sentencing disputed the two quotes but did not provide any alternative evidence. For the purposes of an appeal out of time, he obtained two lower quotes. Churchman J was not satisfied Mr Chapman’s new evidence was fresh, but allowed the appeal to proceed in the interests of justice. He allowed the appeal, set aside the reparation order, directed the preparation of a reparation report, and remitted the sentence back to the District Court.
[33] Mr Evans submitted the approach in Chapman is the approach I should adopt in this case.
[34] I view the Chapman decision as turning on the peculiar facts of the case. The Judge referred to severe reservations expressed by a police officer before the District Court sentencing in relation to the victim’s quotations. He also identified that Mr Chapman was a man of low means, this being his first experience with the judicial system. He was self-represented both in the District Court and on appeal.
[35] Here, Mr O’Byrne was represented by the same counsel at both his trial and his sentencing some four months later. He must be taken to have appreciated reparation in the sum sought by the victim was being considered as at least one part of his sentence. Mr O’Byrne is entitled to refer to the evidence given at trial as to having not interfered with the original pipes under the driveway as information that was before the sentencing Judge. But, as against that, the Judge had the victim’s statement that the two sets of repairs were incurred first “to make the drive accessible again” and then “to fix the drive to the standard it was before the damage”. Furthermore, the Judge had no evidential basis to conclude the appropriate work to remedy Mr O’Byrne’s excavation did not involve the use of culverts, even if culverts had not previously been installed at that point of the driveway. Contrary to the impact of Mr Evans’ submissions, it does not necessarily follow that because one or more elements
10 Chapman v Police [2017] NZHC 2307.
of construction was not used in the original design of a driveway, that those elements are not required to repair it when it has been substantially damaged and altered.
[36] I do not consider Mr O’Byrne’s rejection of any liability in relation to the second account sustainable. The initial repair—carried out the day after the digging up of the driveway in the midst of very substantial flooding—was clearly an initial fix to restore access for the victim and neighbours. As the victim said in her evidence— “to make the driveway useable again”. And, as explained in the victim impact statement, prepared partly for her reparation claim, the second invoice then involved the work “to fix the drive to the standard it was before the change”. In other words, there were (as was predictable) two stages of repair—immediate, to restore accessibility; and later, to restore to original standard.
[37] The fact Mr O’Byrne did not interfere with the existing pipes does not of itself establish the remedial work required following the damage he had caused to the driveway did not reasonably call for the use of culverts at the area of repair. What Mr Evans has indicated to the Court as to Mr O’Byrne’s view as to the original condition of the driveway being improved is quite simply Mr O’Byrne’s stated opinion. He provided no admissible evidence to establish his betterment contention.
[38] Mr O'Byrne’s complaint raised for the first time on appeal fails at the fundamental level of the onus of proof. As explained in Civil Remedies in New Zealand under the heading “Betterment”.11
(3) Betterment
Once the plaintiff has discharged the onus of proving both the presence and quantum of loss resulting from the unexpected expenditure caused by the defendant, the onus shifts to the defendant to prove not only betterment, but also its quantum of value. In J & B Caldwell Ltd v Logan House Retirement Home Ltd Fisher J stated:
“[T]he defendant should have to prove that which if affirmatively asserts. It asserts not only that there is a reduction in, or set off against, the prima facie loss but also that the reduction of set-off should be afforded a stated value.”
(footnotes omitted)
11 Maree Chetwin “Contract” in Blanchard (ed) Civil Remedies in New Zealand (2nd ed, Thomson Reuters, Wellington, 2011) at [1.4.6(3)].
[39] The failure of Mr O’Byrne at the time of sentencing to seek a reparation report also counts against him. The very purpose of the report process is to allow those affected to achieve, at the time of sentencing, an efficient, cost-effective agreement or court decision on questions of cause and quantum. In a case such as Chapman, where a contrary assessment already existed at the time of sentencing, strong grounds of appeal may exist. But here, where Mr O’Byrne has essentially held over the detailed arguments as to the $4,221.37 claim he advances at a High Court hearing, this Court must guard against too readily critiquing the quality of information on which the District Court orders were made. The victim in this case has established in the District Court both the presence and quantum of her costs—Mr O'Byrne did not appropriately establish an element of betterment within that quantum.
Outcome
[40] Mr O’Byrne has not established the Judge erred in setting the amount of reparation in the sums ordered.
Result
[41]The appeal is dismissed.
Osborne J
Solicitors:
Crown Solicitor, Christchurch for Respondent
H A Evans/V P Kenworthy, Christchurch for Appellant
SCHEDULE A
SCHEDULE B
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