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R v Pender

R v Pender

Case [2007] NZCA 465 26 October 2007

Reparation

Undue Hardship

Special Circumstances

Statutory Interpretation

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA366/07
CA385/07
[2007] NZCA 465
THE QUEEN
v
DEAN CHRISTOPHER PENDER
BEN GEORGE ROBERTS
Hearing:18 October 2007

Court:O'Regan, Chisholm and Potter JJ
Counsel:J P McCarthy for Appellants

S B Edwards for Crown

Judgment:26 October 2007 at 11 am

JUDGMENT OF THE COURT

A        Extension of time to appeal is granted.
B        The appeals are dismissed.
REASONS OF THE COURT
(Given by Potter J)
Introduction
[1]       Mr Pender and Mr Roberts appeal against a judgment of Judge DLJ Saunders in the District Court at Christchurch dated 6 June 2007, which ordered that they each pay reparation of $10,615.30 by instalments. The judgment followed a reparation hearing before Judge Saunders. Mr Pender was ordered to pay the reparation by instalments of $45 per week and the Judge ordered a review to take place in six months. Mr Roberts was ordered to pay the reparation at the rate of $30 per week commencing from 8 June 2007, increasing to $100 per week from 1 October 2007.
[2]       The appellants seek extension of time to appeal, the appeals having been filed in late July. The Crown does not oppose the applications for extension of time, which are granted.
Issues
[3]       The appellants do not dispute that some reparation should have been ordered, but both appellants contend that the reparation ordered results in undue hardship for them. Mr Pender also contends that there are special circumstances which make the reparation ordered inappropriate in his case.
[4]       The Crown opposes the appeals. Ms Edwards submitted it was open to the Judge to accept that the appellants could pay reparation on the bases ordered, and indeed that the Judge took great care to tailor the orders to meet the respective circumstances of the appellants.
[5]       The issues on appeal are whether the amount of reparation and the amounts of the instalments ordered result in undue hardship for the appellants; in the case of Mr Pender, whether there are special circumstances which render the reparation ordered inappropriate.
Background
[6]       The appellants were jointly charged with two others – Gregory Hansen and Dean Louis – with the theft of a Nissan Skyline GTR motor vehicle on 28 February 2006. It had been dismantled and stripped of its parts. The vehicle, which was imported, had been extensively modified and was described as “unique”. The owners said it had been valued at $100,000.
[7]       Prior to the reparation hearing, the appellants had been sentenced by Judge Saunders following guilty pleas entered to a joint charge of theft of a motor vehicle. Mr Pender also pleaded guilty to a charge of wilfully attempting to pervert the course of justice.
[8]       On 15 March 2007 the appellants were sentenced as follows:
(a)Mr Pender: 12 months imprisonment with leave to apply for home detention and deferment of the sentence start date for the maximum period of two months.

(b) Mr Roberts: 250 hours community work.

[9] Those sentences are not appealed. The appeal is solely against…

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 R v Pender

Details

AGLC: R v Pender [2007] NZCA 465
Case: [2007] NZCA 465
Decision Date: 26 October 2007

CaseChat Overview and Summary

Dean Christopher Pender and Ben George Roberts appeal against the reparation orders made against them by Judge DLJ Saunders in the District Court at Christchurch on 6 June 2007. The appellants were sentenced for their involvement in the theft of a motor vehicle. The appeal concerns only the reparation orders. Both appellants contend that the reparation ordered results in undue hardship for them and Mr Pender argues that there are special circumstances which make the reparation ordered inappropriate in his case. The Crown opposes the appeals.

The issues on appeal are whether the amount of reparation and the amounts of the instalments ordered result in undue hardship for the appellants; in the case of Mr Pender, whether there are special circumstances which render the reparation ordered inappropriate.

In this case, the sentencing Judge considered all relevant factors in relation to the appellants and made orders that were both fair and appropriate for payment of reparation for their share of the cost of the damage caused by their offending. The appeals are dismissed.

Orders