Robinson v The Queen

[2020] NZHC 1711

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2020-488-000025

[2020] NZHC 1711

BETWEEN

JOHN CLIFFORD WALTER ROBINSON

Appellant

AND

THE QUEEN

Respondent

Hearing:

15 July 2020

Appearances:

Appellant in person

G R Anson for Respondent

Judgment:

17 July 2020

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 17 July 2020 at 3.30 pm.

Registrar/Deputy Registrar Date……………

Solicitors:

Crown Law, Wellington Copy to: Appellant

ROBINSON v R [2020] NZHC 1711 [16 July 2020]

[1]                 Mr Robinson stood trial in the District Court on charges of trespass, causing intentional damage and assaulting a female. The jury found him guilty of trespass, but not guilty of the other two charges.

[2]                 On 6 May 2020, Judge K B de Ridder made an order under s 110 of the Sentencing Act 2002 (the Act) requiring Mr Robinson to come up for sentence if called upon to do so within six months.1 He also directed Mr Robinson to pay reparation to the complainants’ insurer in the sum of $7,757.90.

[3]Mr Robinson appeals against both aspects of the sentence.

Background

[4]                 The  charges  were  laid  as  a  result   of  a  longstanding  dispute  between Mr Robinson and his neighbours, Mr and Mrs Woest. The dispute appears to be wide ranging in scope but the charges arose from a dispute relating to Mr Robinson’s driveway, part of which encroached on Mr and Mrs Woest’s land. Some years ago Mr Robinson paved the driveway in concrete. One edge of the paving followed what Mr Robinson considered to be the boundary between his property and that belonging to Mr and Mrs Woest.

[5]                 Mr and Mrs Woest subsequently discovered the paved edge of the driveway encroached on their land. During a period when Mr Robinson was overseas they installed a fence along their side of the correct boundary. This reduced the width of Mr Robinson’s driveway considerably. He became concerned that the driveway was not sufficiently wide to enable an ambulance or other first responders to obtain access to his house should that be necessary. On 21 May 2018 Mr Robinson took matters into his own hands. He used a chainsaw to cut through the posts of the fence at ground level. He then used a small digger to push the fence off the driveway and further onto Mr and Mrs Woest’s property. This resulted in the charges of intentional damage and wilful trespass.

1      R v Robinson [2020] NZDC 10060.

[6]                 Mr Robinson defended the intentional damage charge on the basis that he believed he had the right to remove the fence from what he understood to be his property back onto Mr and Mrs Woest’s property. The jury’s verdict on that charge suggests they accepted Mr Robinson’s explanation or, alternatively, were left in a state of reasonable doubt by it. The verdict on the charge of wilful trespass confirms the jury considered Mr Robinson knew he was trespassing on Mr and Mrs Woest’s land when he used the digger and chainsaw to detach the fence from the driveway and move it off the driveway.

The deferred sentence

[7]Section 110 of the Act relevantly provides as follows:

110     Order to come up for sentence if called on

(1)If a person is convicted of an offence, a court before which the offender appears for sentence may, instead of imposing sentence, order the offender to appear for sentence if called on to do so within the period described in subsection (2).

(2)The period referred to in subsection (1) is a period, not exceeding 1 year commencing with the date of conviction, that the court may specify in the order.

(3)A court making an order under this section may—

(a)make an order for the payment of costs or for the restitution of any property; or

…

[8]  Mr Fairley, who appeared for Mr Robinson at trial, endeavoured to persuade the Judge he should convict and discharge Mr Robinson. The Judge disagreed for the following reasons:2

[5]        So in terms of assessing the seriousness of this trespass, I have to consider both the extent of the intrusion and also the intent. As to the extent, well, it is clear that that was not great and I accept that, but to my way of thinking, more importantly, is the intent in committing this trespass, that was to intentionally inflict damage on the fence, because the only way to move it involved damaging it significantly, and in doing so, of course, you affected the amenity value of the fence to the Woests, both practically and aesthetically and also, of course, emotionally, and I note that you did so deliberately flouting warnings given to you by the police and in the face of sustained

2      Robinson v R, above n 1.

protest by Mrs Woest on the day. So from my point of view, having regard to the intent, this was a reasonably serious trespass, taking into account those factors.

[6]        Having said that, I acknowledge that both the Crown and Mr Fairley for you both argue for a low-level penalty or sentence on the hierarchy of sentences, the Crown submitting that you should be subject to an order to come up for sentence if called upon within a year, effectively can be categorised as a good behaviour bond. For you, Mr Fairley submits that having regard to the history of this matter and time you have already spent in custody, that a sufficient penalty to mark your offending is simply to record a conviction and then discharge you.

[7]        I agree with counsel that a low-level sentence is appropriate, but given the blatant nature of the trespass and having regard to the purposes and principles of sentencing, in particular, in my view, deterrence and accountability coming to the fore, I am satisfied that a conviction and discharge would not be sufficient to mark the seriousness of your offending.

[8]        I note Mr Fairley’s submission that there has been no further suggestion of trespass since this incident and therefore there is no need for any higher sentence. That has to be tempered by the fact of course that you were well aware that you were still awaiting sentence, so that has to be factored into the equation.

[9]       Mr Robinson maintains that a conviction and discharge would have been the appropriate outcome. He points out that he has been subject to very restrictive bail conditions since the charges were laid. He also spent a period in custody after Mr and Mrs Woest claimed he had breached his bail conditions on three occasions. In addition, he was required to live away from his home at one stage as a condition of his bail before this was overturned following an appeal to this Court. Mr Robinson also relies on the fact that, when Judge de Ridder determined the alleged bail breaches on a defended basis, he found two of the three allegations not proved.3 Although he found the remaining breach had been proved, the Judge concluded Mr Woest had instigated the incident that led to the breach occurring.4 The Judge therefore found the breach to be “very minor”.5

[10]     Furthermore, Mr Robinson points out that he remains subject to a trespass notice prohibiting him from going onto Mr and Mrs Woest’s property. In addition, he still remains subject to bail conditions preventing him from having any form of contact with Mr and Mrs Woest in relation to charges that have yet to be the subject of a trial.

3      R v Robinson [2019] NZDC 8293 at [39] and [41].

4 At [44].

5 At [45].

Mr Robinson submits that, taken together, the trespass notice and the bail conditions are sufficient to ensure he does not allow himself to come into contact with Mr and Mrs Woest in the future.

[11]     I accept Mr Robinson’s submissions on this point. Although he may have been the author of his own misfortune to some extent, he has nevertheless been required to spend time in custody and he has also been subject to restrictive bail conditions for a lengthy period. He has also been required to expend considerable sums on legal costs relating to both bail issues and the trial. Furthermore, he knows the likely consequences that will follow if he attempts to make contact with Mr and Mrs Woest or to go onto their land.

[12]     A conviction and discharge and a deferred sentence sit together in terms of the hierarchy of sentences prescribed by the Act.6 I consider a conviction and discharge to be a sufficient notation on Mr Robinson’s criminal history to reflect the relatively low level of the offending and the context in which it occurred.

[13]     I therefore set aside the order requiring Mr Robinson to come up for sentence if called upon to do so within six months. In substitution I enter a conviction and discharge under s 108 of the Act.

The order for reparation

[14]     When a court convicts and discharges an offender it retains the power to require the offender to pay restitution or reparation.7 By the time Mr Robinson was sentenced Mr and Mrs Woest’s insurance company had already paid them the sum of $7,757.90 to enable them to reinstate the fence. This was based on an estimate the insurance company had obtained of the cost of the work necessary to reinstate the fence to its previous position on the driveway.

[15]     Having received those funds Mr and Mrs Woest did not reinstate the fence in that way. Instead, they removed concrete paving from the driveway back to the boundary of their property. They then re-erected the existing fence along the boundary

6      Sentencing Act 2002, s 10A(2)(a).

7      Section 108(2) and (2A).

using new posts. They have provided invoices showing they spent a total sum of

$8,300 in carrying out this work.

[16]     When Mr Robinson was sentenced, the focus was on whether reparation should be ordered as matter of principle given the fact that the jury had acquitted him on the charge of intentional damage. The Judge found that reparation could still be ordered under  the  principles  enunciated  by  the  Court  of  Appeal  in  R  v  Donaldson.8  Mr Robinson does not take issue with this conclusion on appeal. Instead, he contends the Judge should not have ordered him to pay reparation based on an estimate given to Mr and Mrs Woest’s  insurer.   Furthermore, Mr Robinson does not accept that   Mr and Mrs Woest have ever paid the sum referred to in the invoices they have produced.

[17]     Mr Robinson also contends he could have arranged for the work necessary to reinstate the fence to its former position to be carried out at a considerably reduced costs than the amount for which he was ordered to pay reparation. In November 2019 he obtained a quote from a builder to reinstate the fence for the sum of $1,759.28. He says this was a realistic estimate and he should not be required to pay reparation in excess of it.

[18]     This raises a difficult issue because, for  the  reason  I have  already given,  Mr Robinson did not challenge the quantum of reparation when he was sentenced. The position is complicated further by the fact that Mr and Mrs Woest elected not to reinstate the fence in its original form but to change the scope of the remedial work significantly.

[19]Section 32(3) of the Act provides:

32       Sentence of Reparation

…

(3) In determining whether a sentence of reparation is appropriate or the amount of reparation to be made for any consequential loss or damage described in sub-section (12)(c ), the court must take into account whether there is or may be, under the provisions of any enactment or

8      R v Donaldson CA 227/06, CA233/06, 2 October 2006.

rule of law, a right available to the person who suffered the loss or damage to bring proceedings or to make any application in relation to that loss or damage.

…

[20]     In the present case Mr and Mrs Woest’s insurer have the ability to recover the cost of reinstating the fence if they wish to do so. I therefore consider the appropriate course of action is to require Mr Robinson to pay reparation in the sum of $1,759.28 (being the sum he accepts to be appropriate) without prejudice to the right of the insurance company to take civil proceedings against him to recover the balance it has paid to Mr and Mrs Woest if it considers it wishes to take that step. Mr Robinson endeavoured to argue he should not be required to pay reparation in any amount until such time as the fence in its current form is shown to be code compliant, but I see no basis on which I could make such an order.

[21]     The appeal against the order of reparation is accordingly allowed and the order made by the Judge is set aside. In its place I make an order requiring Mr Robinson to pay reparation to Mr and Mrs Woest’s insurer in the sum of $1,759.28.

Lang J