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…

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 Wonnacott

Details

AGLC: R v Wonnacott [2009] NZCA 414
Case: [2009] NZCA 414
Decision Date: 17 September 2009

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of R v Wonnacott involved an appeal by the defendant, Ms. Wonnacott, against her sentence of six months home detention and a reparation order of $27,142.96. Ms. Wonnacott pleaded guilty to two charges of arson and appealed out of time on the grounds that the reparation order was manifestly excessive. The legal issues before the court were whether the trial judge had sufficiently considered Ms. Wonnacott's financial and personal circumstances, and if the reparation order would result in undue hardship as per the Sentencing Act 2002.

The court found that the trial judge did not properly consider Ms. Wonnacott's financial capacity or the potential undue hardship a reparation order may cause. The judge also failed to assess the defendant's ability to pay reparation in accordance with the Act. As a result, the reparation order was quashed, and the case was remitted to the District Court for reconsideration of whether a reparation order should be imposed and, if so, the conditions of any order. The court emphasised that the first step the District Court must take is re-ordering a reparation report under section 33 of the Act.

Orders