R v Pender

[2007] NZCA 465

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 the reparation sentences.

[10]     The co-offenders, Mr Hansen and Mr Louis, were sentenced on 22 November 2006 having entered guilty pleas earlier than did the appellants.  Judge Abbott imposed on them sentences of community work and in the case of Mr Louis, also supervision.  He took the victims’ losses as quantified in the sum of $42,461.20 and sentenced Mr Hansen and Mr Louis to each pay reparation of one-quarter of that amount, namely $10,615.30.  Each had paid $5,000 towards reparation prior to sentencing and they were ordered to pay the balance in full within 28 days.

Reparation : statutory provisions

[11]     Section 12 of the Sentencing Act 2002 provides:

Reparation

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

(2)A sentence of reparation may be imposed, in relation to any particular offence, on its own or in addition to any other sentence.

(3)If a court does not impose a sentence of reparation in a case where it is lawfully entitled to do so, it must give reasons for not doing so.

[12]     Counsel for the Crown noted, and Mr McCarthy for the appellants agreed, that the presumption in favour of reparation has been strengthened in relation to the predecessor of s 12, s 11 of the Criminal Justice Act 1985.  Section 11 required reparation to be ordered unless the Court was satisfied that it would be “clearly inappropriate” to do so.  By s 12, there is now a presumption in favour of reparation unless the Court is satisfied that to order reparation would cause undue hardship for the offender or the offender’s dependants or there are any other special circumstances that would make it inappropriate.

[13]     In R v Creek CA199/06 17 August 2006 the Court said at [13]:

… cases decided before the Sentencing Act 2002 came into effect must now be read in light of the legislative direction provided for by s 12 which is in more imperative terms than the corresponding direction in the Criminal Justice Act 1985.

[14]     Section 35 of the Sentencing Act provides:

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).

(2)If the court imposes on an offender a sentence of reparation and a sentence of a fine, any payments received from the offender must be applied first in satisfaction of the amount due under the sentence of reparation.

[15]     Section 35 provides the sentencing Judge with flexibility to tailor the sentence of reparation to meet the financial capacity of the offender.  The sentencing Judge should have a realistic measure of confidence that the payment can be made: R v Creek; R v Donaldson CA227/06 2 October 2006; R v Bailey CA306/03 10 May 2004.

[16]     Section 36 of the Sentencing Act requires the Court to determine the conditions of the sentence of reparation in respect of:

(a)       The total amount of reparation to be paid;

(b)       Whether the sum is to be paid in one lump sum or in instalments;

(c)       When lump sum reparation is to be paid;

(d)The frequency and amounts of the instalments by which the reparation is to be paid.

[17]     The Sentencing Act does not specify any period or maximum period during which reparation is to be paid.  This will depend on the financial circumstances and capacity of the offender.  The Crown submitted that given the more imperative terms of s 12, longer periods are likely to be more common than in the past: Creek at [13]. The Crown noted that by s 145 of the Sentencing Act, “time to pay” arrangements and attachment orders for fines and reparation under ss 86 and 105 of the Summary Proceedings Act 1957, were extended from 18 months to five years, from which it can be inferred that the legislature did not consider unreasonable payments over a period of up to five years.

[18]     Section 145 of the Sentencing Act, which relates to the enforcement of payment of amounts under sentences of reparation, enables an application for relief to be made in a situation where it is not possible for the offender subject to the sentence of reparation to meet its terms.

Recent authorities

[19]     R v Creek:  The High Court had dismissed an appeal against an order for payment of reparation of $50,000 at the rate of $100 per week imposed in the District Court.  Mr Creek misappropriated a total of some $230,000 from his employer.  He was sentenced to two years and nine months imprisonment.  If payment started after his release from prison it would take about nine and a half years to pay the full amount of the reparation ordered.  This Court, while expressing some misgivings about the reparation sentence, held that it was open to the Judges in the District Court and the High Court to conclude that there was a sufficient likelihood of Mr Creek being able to pay the reparation ordered to warrant the making of the order, but noted that the period of time over which payments were to be made was longer than the norm.  This case was an application for leave for a second appeal which was declined as there was no arguable point of law.  This Court did note, however, that if it had been a general appeal, it would have had some prospect of success.

[20]     R v Donaldson:  Mr Donaldson and his co-offender were sentenced to 18 and 21 months imprisonment respectively having been convicted of a number of burglaries.  They were ordered to pay reparation in excess of $22,000 and $23,000 respectively.  They were aged 19 and 21.  Mr Donaldson was in variable employment.  Mr Chapman was caring for a dependant child and in receipt of a Domestic Purposes benefit.  This Court noted that if payment was to commence after the appellants’ release from prison at the rate of $50 per week it would take around nine years for reparation to be paid and considered that reparation at the level imposed could not be sustained.  The orders were reduced to $10,000 for Mr Donaldson and $6,000 for the co-offender. 

[21]     R v Bailey:  Mr Bailey was sentenced to 400 hours community work and ordered to pay reparation of $17,840 at the rate of $20 per week.  He pleaded guilty to a fraud charge arising from an inflated insurance claim he made following a burglary at his premises.  The 17 years required to achieve full repayment was considered by the Court of Appeal to be unrealistic given Mr Bailey’s poor financial circumstances.  An order for payment of $3,000 at $20 per week was substituted (which would take around three years to pay in full). 

Mr Pender

[22]     In his reparation judgment, the Judge referred to Mr Pender being on an invalid’s benefit of $245 per week which was the information in the Reparation Report dated 9 March 2007 from the Department of Corrections.  In fact, in a report from Work and Income New Zealand dated 1 June 2007, received after the reparation hearing, Mr Pender’s invalid’s benefit together with weekly supplements is advised as $368.12 net.  In an update on 10 September 2007, Work and Income New Zealand advised that his benefit plus an accommodation allowance and a disability allowance totals $340.48 per week (reduced from the June figure by $27.64, being Temporary Additional Support).  So Mr Pender’s current benefit is approximately $95 per week more than that relied on by the Judge in sentencing.  Deductions at source total $69.40 per week which includes $45 for reparation payments.  After those deductions, Mr Pender receives $271.08 per week in the hand.

[23]     The Judge made reference to Mr Pender’s medical condition, that his condition requires frequent attendance at Christchurch Hospital for dialysis treatment and that he did not expect to be able to work while on home detention because he was simply too debilitated.  He noted Mr Pender’s advice that he pays the sum of $200 each week to his father for board and that he had offered $45 per week for outstanding reparation in respect of earlier offences.  (This is recorded in a statement signed by Mr Pender on 7 March 2007.) 

[24]     The Judge assessed that if reparation at the current rate of $45 per week were to be applied to reparation in relation to this offending, it would take less than five years for Mr Pender to clear his obligation for reparation in the sum of $10,615.30.  The Judge said he did not accept there would be “undue hardship” if reparation were to be ordered at the rate of $45 per week, with a direction that the sum currently paid for reparation at that rate be paid in respect of the reparation for this offending.  He made an order accordingly, and directed a review at the end of six months when the home detention period was due to expire.  He stated that Mr Pender’s ability to increase any payments or to undertake community work in lieu of payment of fines outstanding, could then be assessed.  (Outstanding fines stand at about $4,400 according to a Fines Summary report as at 1 June 2007.)  Thus, rather than a review needing to be invoked under s 145, a review will be conducted pursuant to the Judge’s direction.

[25]     Mr McCarthy emphasised Mr Pender’s serious medical condition in relation to both limbs of s 12(1), undue hardship and special circumstances, though he accepted they were disjunctive.  Mr Pender has lupus disease, a very severe debilitating medical condition.  Mr McCarthy explained that because of recent kidney failure Mr Pender is required to attend hospital for dialysis on four days each week. 

[26]     Mr McCarthy suggested that a compassionate approach to take account of the s 12 factors of undue hardship and the special circumstances of Mr Pender’s medical condition, would be to reduce the amount of the reparation ordered to say $3,000 - $4,000 to be paid by instalments of say, $25 per week.  However, Mr McCarthy properly accepted that in the application of s 12 the Court is required to conduct a balancing exercise bearing in mind the mandatory requirement of s 12 to impose reparation (unless the Court was satisfied in terms of the section that it is inappropriate), and taking into account the financial loss suffered by the victims on the one hand and the circumstances of the offender on the other.

[27]     Mr Pender’s medical condition was a factor taken into account by the sentencing Judge when in imposing the sentence of twelve months imprisonment he granted leave to apply for home detention and deferred the commencement date of the term of imprisonment “on the basis of humanitarian circumstances” for the maximum of two months permitted by the Sentencing Act.  The Judge again took account of the limitations imposed by Mr Pender’s medical condition when considering the sentence of reparation and the manner in which it should be paid.

[28]     It will almost invariably be the case that there is some hardship for those ordered to pay reparation; as there is almost invariably hardship for those who are the victims of the offending that gives rise to the financial loss in respect of which reparation is required. 

[29]     The amount of reparation the Judge ordered, $10,615.30, was consistent with what the co-offenders were required to pay.  It was based on an amount of reparation agreed by counsel for the Crown and the defence at the reparation hearing, although a higher estimate of the cost of repairs to the vehicle had been obtained by the Crown.  In determining the manner in which the reparation should be paid, the Judge required of Mr Pender that he should pay no more than he had currently been paying on account of reparation and fines, an amount accepted by Mr Pender, namely $45 a week. 

[30]     We agree with the Judge’s assessment that the order could not impose undue hardship upon Mr Pender.  Further, as has become apparent from the information provided by Work and Income New Zealand subsequent to the reparation hearing and sentencing, Mr Pender’s invalid’s benefit with additional allowances is considerably more than the weekly sum of $245 upon which the Judge based his assessment.  Mr Pender will in fact be left with discretionary income of about $95 a week after payment of reparation and $200 per week for board.

[31]     Mr Pender’s very serious medical condition is indeed an unusual circumstance but it is one of which the Judge had notice and which he properly took into account in both the sentence he imposed and the reparation he ordered.  It is not, of itself, a special circumstance which makes the reparation order inappropriate.

Mr Roberts

[32]     Mr McCarthy properly accepted that he could not advance special circumstances in relation to Mr Roberts.  He is an able bodied person capable of earning a living who indeed was in employment until early October when, Mr McCarthy advised, he left for Australia for a period.  Information made available to Mr McCarthy from Reliance Recruitment Christchurch, shows that between January and October 2007 Mr Roberts’ earnings were about $400 net per week. 

[33]     The Judge took into account that Mr Roberts had a bank loan which he said he was paying at $280 per month.  On that basis the loan should have been repaid by the end of September 2007.  The Judge ordered that he pay $30 per week on account of reparation to be increased to $100 per week from 1 October 2007 when his liability to the bank should have been extinguished. 

[34]     Mr McCarthy said that Mr Roberts owes some $15,000 in fines which made him “insolvent”.  He accepted that the reparation is to be paid in priority to the fines.

[35]     Mr McCarthy submitted that reparation in the case of Mr Roberts should be reduced to say $5,000 - $6,000 which he suggested was equitable given that Mr Roberts’ situation could not command the compassion he considered Mr Pender’s medical condition called for.

[36]     We cannot accept there is any basis upon which the decision of the sentencing Judge was wrong in respect of the reparation ordered to be paid by Mr Roberts.  The amount of reparation is consistent with that required of all four co-offenders.  At the rate of $100 per week from 1 October 2007 the reparation should be paid in little over two years.  Mr Roberts is well able to work and to earn an income which should enable him without undue hardship to pay the reparation ordered.

Conclusion

[37]     In any given case the reparation a Court orders pursuant to the requirement of s 12, will depend on the facts and take account of the financial and other circumstances of the offender.  In this case the sentencing Judge considered all relevant factors in relation to Mr Pender and Mr Roberts 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.

[38]     The appeals are dismissed.

Solicitors:
Sumner Bay Law, Christchurch for Appellants
Crown Law Office, Wellington