S v Police HC Whangarei Cri-2008-488-21

[2008] NZHC 2446

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2008-488-000021

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 July 2008

Appearances: Ms M Scally for Appellant

Ms A L Hyndman for Respondent

Judgment:      30 July 2008

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

Solicitors:

Thomson Wilson, Whangarei

Crown Solicitor, Whangarei

S V NZ POLICE HC WHA CRI-2008-488-000021  30 July 2008

[1]      On 25 March 2007 Mr S   was arrested on a charge of intentionally damaging a mini-power plant and other facilities being the property of Pananawe Marae.

[2]      When he appeared in the District Court he initially pleaded not guilty, but on

1 August 2007 he changed his plea to one of guilty.    He was then remanded until

6 December 2007 to enable him to pay reparation in the sum of $526.20 to the Marae and to carry out 40 hours community work for the Marae.   I have no doubt that the Court at that time was of the view that that would be a sufficient penalty to reflect the gravity of the offending.

[3]      By 6 December 2007, however, Mr S   had not started paying reparation or undertaking the community work.   He was then given a further chance to begin attending to these matters by 12 December 2007 but did not do so.    He was given yet another chance to complete the work and the payments by 20 March 2008. When he appeared before His Honour Judge Harvey on that date, however, he was unable to provide the Judge with proof that he had either paid the reparation or had carried out the community work.   As a result, the Judge sentenced him to 40 hours community work and ordered him to pay reparation to the Marae in the sum of

$526.20.

[4]      It now transpires that Mr S   had in fact paid the sum of $360.00 towards the reparation by 20 March 2008.   He had also completed 40 hours community work for the Marae.

[5]      In those circumstances, although it is absolutely no fault of the Judge in the District Court, the Judge sentenced Mr S   on a factual basis that was incorrect. I have no doubt that, if the Judge had been aware of the true factual position, he would not have imposed the sentence of community work.    He would, however, have ordered Mr S   to pay $166.20 being the outstanding balance of the reparation.

[6]      I am now advised that Mr S   finally paid off the reparation on 13 May

2008.   As a result, it would serve no purpose to alter that order.   I gather that it is

open to Mr S   and his counsel to satisfy the Collections Department that he has paid the reparation in full.   That will then bring that matter to an end.

[7]      I therefore quash the sentence of community work.   As a result Mr S   is convicted and discharged subject only to the order for reparation in the sum of

$526.20.

Lang J