S v Police HC Timaru Cri-2008-476-15

[2008] NZHC 1437

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2008-476-000015

S

Appellant

v

POLICE

Respondent

Hearing:         10 September 2008

Appearances: Appellant in Person

C A O'Connor for Crown

Judgment:      11 September 2008

RESERVED JUDGMENT OF HON. JUSTICE FRENCH

[1]      This is an appeal against a sentence of reparation.

[2]      On 18 June 2008, the appellant was convicted in the District Court of theft of a motor vehicle following a defended hearing.  He was fined $300, ordered to pay court costs of $130 and reparation of $1100.

[3]      The circumstances surrounding the offence were that the complainant had been driving her Subaru motor vehicle when it broke down on State Highway 1

north of Hampden.  She reversed it into a shingle driveway and left it there to await

S V POLICE HC TIM CRI-2008-476-000015  11 September 2008

retrieval by a salvage firm.   However, before the firm arrived, the appellant had stolen the vehicle and sold it for $200 to a wreckers yard.  The engine had seized .

[4]      Although it is not entirely clear, it appears the Judge arrived at the reparation figure of $1100 by adding the approximate cost of the wasted salvage fee incurred by the complainant ($350) to the price she had paid for the car, namely $800.   The complainant had purchased the car only three weeks before it was stolen.

[5]      In appealing that decision, the appellant contends that if the victim were to receive reparation in the sum of the purchase price, that would result in betterment. When last in the possession of the complainant, the vehicle had broken down and was inoperable.  The engine had seized and that was the reason why the vehicle was only able to be sold as scrap.

[6]      In support of this argument, the appellant produced written confirmation from the local Subaru service agents stating:

… that a 1991 Subaru Legacy with a mileage in excess of 250000 KS driven tills [sic] the engine seized would be of absolute [sic] no value and would cost to have it removed from the side of the road.  It would in no way be worth repairing.

[7]      The appellant therefore argues that a more appropriate basis for reparation would have been the sum of $550, comprising the wasted salvage fee and the money he received from the wreckers yard, being the sale value of the motor.

[8]      In  response,  Mr  O’Connor  advised  the  Court  that  the  police  had  made inquiries of the Motor Vehicle Dealers Institute and were told the vehicle’s value “may still be worth as  much  as  $1000”.    However,  there  was  no  documentary evidence to support this and it is of course contradicted by the advice from the Subaru agents.  Mr O’Connor acknowledged the difficulties but was unable to take the matter any further, because unfortunately the officer in charge of the case is on extended sick leave.

[9]      Mr O’Connor also accepted that at the District Court hearing the appellant had not been consulted about the amount of the reparation, or the basis on which it was being calculated.

[10]     In all the circumstances, I accept the appellant’s submissions and consider the reparation order should be set aside and substituted with an order for reparation in the sum of $550.

[11]     The appeal is therefore allowed.

Solicitors:

Berry & Co, Oamaru Crown Solicitor, Timaru Copy to Appellant