R v Wonnacott

[2009] NZCA 414

IN THE COURT OF APPEAL OF NEW ZEALAND

CA425/2009
[2009] NZCA 414

THE QUEEN

v

KYLEE SHARIE WONNACOTT

Hearing:10 September 2009

Court:Chambers, Rodney Hansen and Fogarty JJ

Counsel:M J Dyhrberg for Appellant

B D Tantrum for Crown

Judgment:17 September 2009 at 2.30 pm

JUDGMENT OF THE COURT

AAn extension of time for appealing is granted.

BThe appeal is allowed.

C        The sentence of reparation is quashed. 

DThe issue is remitted to the District Court for reconsideration of whether a sentence of reparation should be imposed and, if so, the conditions of any order.

REASONS OF THE COURT

(Given by Rodney Hansen J)

Introduction

[1]       Ms Wonnacott pleaded guilty in the Invercargill District Court to two charges of arson.  She was sentenced by Judge Phillips to six months home detention and ordered to pay reparation totalling $27,142.96.  She appeals out of time against sentence on the grounds that the order for reparation was manifestly excessive.

[2]       Mr Tantrum initially opposed the grant of an extension of time for appealing on the ground that Ms Wonnacott had not explained the delay in appealing.  That oversight was rectified by a late filed affidavit providing an explanation which satisfies us that it is in the interests of justice to grant an extension of time.

Facts

[3]       At the time of the offending, Ms Wonnacott had recently ended a relationship.  She was angry with her former partner.  She cycled the short distance from her home to his home in Te Anau.  She carried three litres of petrol and a lighter.  She waited until she thought the occupants of the house had left before setting fire to a van parked near the house.  The van had been restored by the victim and equipped as living accommodation.

[4]       The van was engulfed in flames.  The fire spread to the exterior of the house.  The Fire Service were able to contain the damage to the house but the van was completely destroyed.  The victim, who was asleep inside the house at the time, was unharmed.  Ms Wonnacott told the police that her intention was only to set the van on fire as she knew it was the victim’s prized possession.  She believed he was away from the house at the time.

Sentence  

[5]       At sentence Judge Phillips had before him a pre-sentence report, victim impact reports, three psychiatric reports and a number of character references.  A reparation report had been requested to accompany the pre-sentence report.  The probation officer reported that it could not be completed in time and sentencing proceeded without it.

[6]       The reports disclosed that Ms Wonnacott was 34 years of age.  She had two daughters, then aged 16 and 10 years.  She had no previous convictions.  There was evidence of previous abusive relationships, recurrent episodes of depression and alcohol abuse.  However, there was no evidence that Ms Wonnacott suffered from any major psychiatric disorder.

[7]       The Judge determined a starting point for sentence of two years four months, which he reduced by eight months to take account of mitigating factors.  They included the pleas of guilty, Ms Wonnacott’s previous good character and what the Judge described as “a diminished intellectual capacity or understanding in relation to the whole matter”.  He concluded that Ms Wonnacott was a suitable candidate for home detention, subject to conditions which included assessment and counselling for alcohol abuse and mental health issues.  He also imposed a condition of judicial monitoring to ensure that Ms Wonnacott complied with the conditions of her sentence. 

[8]       The victim impact reports disclosed that the value of the campervan and its contents owned by Ms Wonnacott’s former partner was $24,650.  He was uninsured.  The damage to the house cost $2,492.96 to repair.  It was insured and the cost of repairs except the excess under the policy of $250 was met by the insurance company.

[9]       Judge Phillips made reparation orders as follows:

·$24,650 to be paid to Ms Wonnacott’s former partner.

·$2,242.96 to be paid to the house insurers.

·$250 to be paid to the house owners.

[10]     He ordered the $250 to be paid to the house owners no later than 30 September 2008 and the other orders to be paid by “such instalments of dollars per week as may be assessed and directed by Collections”.

[11]     Subsequently Ms Wonnacott offered to pay reparation by instalments of $10 per week.  After she provided detailed financial information, an order was made on 8 October 2008 by Judge David Mather that she pay reparation by instalments of $10 per week.

Appeal

[12]     Ms Dyhrberg advanced the appeal on the following grounds:

(a)Judge Phillips placed insufficient weight on Ms Wonnacott’s financial and personal circumstances and did not give proper consideration to whether the reparation ordered would result in undue hardship – s 12(1) Sentencing Act 2002 (the Act).

(b)The Judge failed to take into account information indicating that Ms Wonnacott was not in a position to pay any reparation.

(c)The Judge failed to properly assess Ms Wonnacott’s ability to pay reparation – s 35 of the Act.

(d)Judge Mather took no or insufficient account of the length of time it would take for Ms Wonnacott to satisfy the order.

[13]     It is unnecessary for us to fully consider all grounds of appeal.  We are satisfied the order cannot stand for reasons that can be stated quite shortly. 

[14]     The Court had jurisdiction to impose a sentence of reparation as, in terms of s 32(1)(c) of the Act, the offending had caused the victims to suffer loss of or damage to property.  By s 12(1) of the Act, where the Court is lawfully entitled 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.

[15]     The Judge’s sentencing remarks indicate that he gave no consideration to the effect a reparation order would have on Ms Wonnacott and her dependants.  They also suggest that he did not have regard to s 35(1) of the Act, which provides:

Taking into account financial capacity of offender

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).

[16]     The pre-sentence report recorded that Ms Wonnacott was experiencing financial hardship.  It noted that she was in receipt of a benefit and “struggling financially”.  Although the report referred to an initial offer by Ms Wonnacott to pay instalments of $20 per week, it quoted her as saying that “she would struggle to pay even this amount”.  The report also recorded that Ms Wonnacott disputed the value put on the vehicle which she claimed was not in good working order.

[17]     In the course of his sentencing remarks, the Judge acknowledged that the pre-sentence report stated Ms Wonnacott was depressed, in dire financial straits and had an inability to cope on her own.  However, he proceeded to make the reparation orders without reference to the difficulties he had earlier discussed.

[18]     As earlier mentioned, a reparation report had been ordered pursuant to s 33 of the Act but had not been prepared in time.  Section 33 reads:

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:

(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 extent to which the person who suffered the loss or damage is likely to be covered by entitlements under the Injury Prevention, Rehabilitation, and Compensation Act 2001:

(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.

[19]     Plainly, the Judge had taken the view that a report was necessary and that the conditions in s 33(2), which would have permitted him to decline to seek a report, did not apply.  Accordingly, the 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.

[20]     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.  He would also have been able to determine the conditions of an order for reparation under s 36(1) which provides:

Conditions of sentence of reparation

(1)If a court sentences an offender to make reparation, the court must determine the conditions of the sentence in respect of the following matters:

(a)       the total amount of reparation to be paid by the offender:

(b)whether the amount is to be paid in 1 lump sum or in instalments:

(c)if the amount is to be paid in 1 lump sum, whether it is to be paid immediately or at some specified future date:

(d)if the amount is to be paid in instalments, the frequency and amounts of the instalments.

[21]     By s 36(1)(d) it was for the Judge to determine the frequency and amount of instalments.  It was not open to him to leave that for others to decide.  Had he determined the frequency and amount of instalments on the information which formed the basis of Judge Mather’s later order, it would have been apparent that an order for reparation for the full amount was out of the question.  By Ms Dyhrberg’s calculations, it would take Ms Wonnacott 51 years 7 months to satisfy the order.

[22]     The process by which the reparation order was made was deeply flawed and its terms in breach of basic statutory requirements.  Mr Tantrum was obliged to accept this.

[23]     In the circumstances, we consider that the appropriate course is to quash the order and remit the case to the District Court, pursuant to s 385(3)(c) of the Crimes Act 1961, to reconsider whether a reparation order should be made and, if so, the conditions of any order.

Result

[24]     The appeal is allowed.  The sentence of reparation is quashed.  The matter is remitted to the District Court for reconsideration of whether a sentence of reparation should be imposed and, if so, the conditions of any order.  Obviously, the first step the District Court will have to take is re-ordering a reparation report under s 33 of the Act. 

Solicitors:
Crown Law Office, Wellington