Taylor v Police

[2020] NZHC 1344

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2020-443-9

[2020] NZHC 1344

BETWEEN

MONIQUE ANNE TAYLOR

Appellant

AND

THE NEW ZEALAND POLICE

Respondent

Hearing:	3 June 2020
Counsel:	Ms Taylor in person G N Milne
Judgment:	16 June 2020

JUDGMENT OF CULL J

[1]    Ms Taylor appeals a reparation order made in the District Court in 2019, when she was discharged without conviction for two charges of wilful damage.1 She was ordered to pay $4,850.13 for damage to her former partner’s car, $400 excess for damage to the former partner’s father’s car and court costs of $130 on each charge.

[2]    Ms Taylor appeals, out of time, the reparation order of $4,850.13, on the grounds that it is causing her undue hardship and/or her circumstances are exceptional, such that the order should not have been made.2 Ms Taylor accepts the $400 excess payment and the court costs. In addition, Ms Taylor seeks cancellation of the sentence of reparation under s 38A(1) of the Sentencing Act 2002 (the Act).

1      New Zealand Police v Taylor [2019] NZDC 4125.

2      Sentencing Act 2002, s 12.

TAYLOR v THE NEW ZEALAND POLICE [2020] NZHC 1344 [16 June 2020]

[3]    This judgment deals first with whether reparation in the circumstances was appropriate and secondly, the application under s 38A of the Act seeking cancellation of the reparation order.

Background

[4]    Ms Taylor had been in a relationship her former partner for about 12 years, which ended nearly a year before the events occurred. There have been three reported previous family harm incidents between Ms Taylor and her former partner. Ms Taylor has been diagnosed with post-traumatic stress disorder (PTSD) stemming from an alleged assault by her former partner. Ms Taylor entered guilty pleas on the following fact summary and has no relevant previous convictions.

[5]    On Monday 26 November 2018, Ms Taylor was at the address of her former partner and his parents. She had texted him during the day and when the messages went unanswered she sent a slew of further messages over several hours, the contents of which were negative towards him but not threatening. When he did not respond, she began calling his family and left abusive voice messages. Her former partner went to his parents’ address to make sure they were safe after Ms Taylor had called them. She arrived there shortly after. The summary of facts describes her as agitated and that she screamed for him to come out of the house. She approached the front door and started banging on it and tried to open it. When she could not get in, she moved around the exterior of the house.

[6]    A neighbour tried to intervene but this enraged Ms Taylor further and she kicked a car parked in the driveway (her former partner’s father’s car), damaging the panels. This resulted in the first charge of wilful damage.3 Another neighbour arrived and was able to move Ms Taylor away from the car, but she went to another car on the roadside and started kicking it. This car belonged to her former partner. She kicked most of the panels of this car, damaging them. This resulted in the second wilful damage charge.

3      Summary Offences Act 1981, s 11(1)(a); maximum penalty three months’ imprisonment or a

$2,000 fine.

[7]    Due to the nature of Ms Taylor’s behaviour leading up to the incident, the police requested a protection order be served on her under s 123B of the Act.

Sentencing

[8]    Ms Taylor pleaded guilty to both charges of wilful damage. At sentencing on 31 January 2019, after referring to a report from a registered clinical psychologist with whom Ms Taylor had been working over the past year, the Judge granted Ms Taylor a discharge without conviction on both charges under s 106 of the Act.4 The Judge then imposed reparation orders in respect of both cars, together with court costs.5 On the first charge, reparation for the excess on the damage to the car of $400 and court costs of $130 were imposed, payable to her former partner’s father at $20 a week. On the second charge, reparation for the car of her former partner of $4,850.13 and court costs of $130 were imposed, payable to her former partner at $20 a week.6

Approach on appeal

[9]    This appeal is brought under s 311 of the Criminal Procedure Act 2011, which provides that appeals against s 106(3) of the Act proceed as if they were an appeal against sentence under s 250 of the Criminal Procedure Act. A notice of appeal or leave to apply for an appeal must be filed within 20 working days after the date of the sentence appealed against,7 unless the Court has extended the time allowed for filing.8 An appeal against sentence is an appeal against a discretion. An appeal against sentence must be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.9

[10]   On 3 March 2020, Ms Taylor filed a notice of appeal, over a year out of time, against the 31 January 2019 District Court ruling that she pay the reparation of

$4,850.13 to her former partner. She seeks an extension of time on the grounds that

4      New Zealand Police v Taylor [2019] NZDC 4125 at [2].

5      At [3]-[4].

6      The Judge also granted a protection order, which was quashed on appeal on jurisdictional grounds:

Taylor v New Zealand Police [2019] NZHC 874 at [3].

7      Criminal Procedure Act 2011, s 248(2).

8      Section 248(3).

9      Section 250(2); and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

she has only just discovered the amount of reparation can be appealed. Ms Taylor is self-represented.

[11]   Ms Taylor accepts the $400 payable to her former partner’s father and the two court-imposed fines of $130 each. Her appeal against the reparation order of

$4,850.13, payable to the victim at $20 a week, is on the grounds of s 12 of the Sentencing Act. That section provides:

(1)If a court is lawfully entitled under Part 2 to impose a sentence or order of reparation, it must impose it unless it is satisfied that the sentence or order would result in undue hardship for the offender or the dependants of the offender, or that any other special circumstances would make it inappropriate.

[12]   Ms Taylor gave evidence that due to her former partner’s alleged abusive actions during their relationship and her diagnosis of PTSD, she has been certified unfit to work and is therefore unable to make money. She says these background facts should enable her to qualify for the “undue hardship” or “special circumstances” exceptions in s 12 of the Act, particularly because the order currently requires her to give to her former partner a portion of her weekly Work and Income benefit. She also says the amount of reparation of $4,850.13 is excessive, as the damaged vehicle is only valued at about $1,500.  Ms Taylor  seeks the cancellation of reparation under   s 38A of the Act.

[13]   The police oppose the appeal on the basis that the hardship experienced by Ms Taylor as a result of the reparation order does not reach the level of “undue hardship” nor are her circumstances “special”.

Decision

[14]   There has been no opposition to Ms Taylor’s application for leave to appeal out of time, and I accordingly grant the extension. I will deal with the two issues on this appeal:

(a)Was the sentence of reparation appropriate in the circumstances?

(b)In which court should a s 38A cancellation of reparation application be brought?

Was the sentence of reparation appropriate in the circumstances?

[15]   Section 106 of the Act enables a sentencing Judge to grant a discharge without conviction and allows the Judge to make an order for payment of any sum due to loss or damage of property through the offence. Section 106(3)(b)(i) provides:

(3)A court discharging an offender under this section may –

(a)…

(b)make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered –

(i)      loss of, or damage to, property; …

[16]   Section 12 of the Act enables a sentencing Judge to impose “reparation” as part of a sentence:

12       Reparation

(1)If a court is lawfully entitled under Part 2 to impose a sentence or order of reparation, it must impose it unless it is satisfied that the sentence or order would result in undue hardship for the offender or the dependants of the offender, or that any other special circumstances would make it inappropriate.

…

(2)A sentence of reparation may be imposed, in relation to any particular offence, on its own or in addition to any other sentence.

(3)If a court does not impose a sentence or order of reparation in a case where it is lawfully entitled to do so, it must give reasons for not doing so.

(4)In this section, order of reparation means an order under section 106(3)(b), 108(2)(b), or 110(3)(b).

[17]   I note that s 12(4) provides that an order under s 106(3)(b) is an order of reparation under s 12.

[18]   Ms Milne submits for the Crown that the order for reparation was appropriate, and that the undue hardship or special circumstances exceptions are not met in this case.10 The approach of the Court in considering an appeal against an order of reparation was canvassed by this Court in Hickman v R, as follows:11

(a)Section 12(1) requires the Court to impose an order of reparation if lawfully entitled, unless satisfied that the order would result in undue hardship for the offender or that any other special circumstances would make it inappropriate.

(b)“Undue” hardship indicates something more than the ordinary concept of hardship is intended, such as excessive hardship or hardship greater than the particular circumstances warrant.

(c)Under s 33, the Court may ask that a reparation report be prepared to address the value of loss or damage to property as a result of the offending, the financial capacity of the offender, the maximum amount the offender is likely to be able to pay and the frequency and magnitude of any payments.

(d)A Court may decline to seek such a report and impose a sentence of reparation without further inquiry if it is satisfied as to the amount of reparation the offender should pay, or the type of information in a reparation report is available through other means, or in all the circumstances the Court considers that a report is unnecessary.

(e)Under s 35(1), if an offender has insufficient means to pay the total value of the loss, the Court may impose a sentence involving a lower amount of reparation or order payment by instalments.

10     Hickman v R [2019] NZHC 3251; R v Thompson CA404/04, 19 October 2005; and Hunt v Police

HC Wellington AP232/99, 29 September 1999.

11     At [14]-[18].

[19]   As Woolford J observed in reference to a number of reparation sentences, appeals against a sentence of reparation imposed in the absence of a reparation report are sometimes allowed where the amount of the order is significant, and the financial position of the defendant was not established.12 In R v Bailey the Court of Appeal held that a reparation order must be set at a level which makes it realistic given the financial circumstances of the person against whom it was made.13 As Woolford J said further, courts have often held that a reparation order requiring payment by instalments continuing for more than five years is not appropriate.14 It is desirable that reparation orders do not bond debtors for many years to pay large sums by small weekly contributions.

[20]   In R v Thompson, the Court of Appeal accepted that although there is no burden of proof on the offender to establish hardship, there is an evidential onus to place before the Court evidence of their financial capacity if they are to avail themselves of the “undue hardship” exception.15 Undue hardship is to be assessed objectively.16

[21]   Ms Taylor was represented by Counsel on sentencing and, as the Crown notes, Ms Taylor accepted the summary of facts at the time she entered guilty pleas and a quote dated 28 November 2018 from a panel beater noting that the total cost to repair the damage to her former partner’s vehicle was $4850.13. It appears no issue was taken with that quote at the time of Ms Taylor’s sentencing and nor were her financial circumstances before the Court. The Judge did not order a reparation report as it appears that the Court was satisfied as to the amount of reparation that the offender should pay and did not consider that a report was necessary.17 I note that under s 35(1), if an offender has insufficient means to pay the total value of the loss, the Court may impose a sentence involving reparation for an amount less than the value of the loss or order payment by instalments.

[22]   The District Court Judge imposed a sentence for the full value of the quote and directed that Ms Taylor pay it by instalments of $20 per week. For reasons which I

12 At [19].

13     R v Bailey CA 306/03, 10 May 2004 at [25], cited in Hickman v R, above n 10, at [19].

14     At [19], citing Guinness v Police.

15     R v Thompson, above n 10, at [15].

16     Hunt v Police, above n 10, at 9.

17     Sentencing Act 2002, s 33(2).

explore below, it appears that payment of $20 per week would take just over five years to complete.

[23]   It appears that no case was made for Ms Taylor at the time of sentencing that such a reparation order would result in undue hardship for Ms Taylor or that other special circumstances should be taken into account to avoid the mandatory requirement under s 12(1) of the Act that the Court must impose a sentence of reparation.

[24]   In making the reparation order, the District Court Judge accepted the quote dated 28 November 2018 of $4,850.13 for the repair of Ms Taylor’s former partner’s vehicle. Ms Taylor in her submissions has expressed her concern as to the reliability of this quote. She says it was obtained from a family friend of her former partner’s family. Ms Taylor advised the Court that she had asked the police to obtain two other quotes when she faced her criminal charges, but this did not occur. She says that the vehicle has not been repaired, despite her payments of approximately $1,000 to date. Ms Taylor has also provided the Court with her research into the “car/jam” report on her former partner’s car and compared it with the make, model and similar mileage of a similar car on Trade Me. She says this revealed that the vehicle is worth approximately $1,500 - $2,000 in value.

[25]   To these submissions, Ms Milne reminds the Court that s 106 of the Act provides, that a Court, in discharging an offender without conviction, may make an order for the payment of a sum money to compensate a person who has suffered loss or damage to property. On that basis, the Crown contend that the value of the property, such as the car, is irrelevant.

[26]   I find that a reparation order was appropriate in these circumstances. In absence of any evidence before the District Court of Ms Taylor’s financial position or any alternative quotes, the Judge was required by s 12 to impose an order of reparation and did so on the evidence before the Court. Section 106 of the Act, as Ms Milne correctly points out, provides for an order for a compensatory payment but it must be a sum that the Court thinks fair and reasonable to compensate any person for their loss.

[27]   While the District Court Judge had no other measure of damage other than the quote of 28 November 2018, I express some reservation about the amount quoted if it has been sourced from a family friend of Ms Taylor’s former partner. However, without further comparative quotes, I am unable to find that it is inappropriate in the circumstances. I therefore set to one side Ms Taylor’s submissions on the car value and the unfairness of the quote.

[28]   I add that the Judge was fully aware of the circumstances surrounding the relationship between Ms Taylor and her former partner so any special circumstances that arise in relation to the background of the offending was known to the Judge. I agree with the Judge’s assessment that these circumstances do not make an order of reparation inappropriate in itself. It appears there has been a change of circumstances but this Court does not have the relevant information on which to find undue hardship.

[29]   I dismiss this ground of appeal. The order for reparation in the circumstances was appropriate.

In which court should a s 38A cancellation of reparation application be brought?

[30]   In addition to the above ground, Ms Taylor seeks an order under s 38A of the Act cancelling the sentence of reparation to her former partner.  For this hearing,   Ms Taylor filed submissions on 3 March 2020, in which she set out her reasons for appeal and the significant financial hardship the reparation orders were causing her. At the time of filing these submissions, Ms Taylor had been certified by her doctor for part-time work and her only income at the time was $215 per week. She had been undertaking two and a half hours of work a day in return for accommodation in Northland. She was able to rent her home, which enabled her to meet mortgage expenses. However, Ms Taylor’s circumstances changed on the cessation of the seasonal work in Northland and the lockdown measures under level four of the COVID-19 response.

[31]   Ms Taylor returned to her home, where she stayed during lockdown. She now receives $465 per week from WINZ which meets her expenses, including mortgage repayments, broadband, power and gas, insurance, petrol, food and rates as well as

payments for reparation. As a result of a recent accident, she has had a recurrence of her PTSD and has been certified as unable to work.

[32]   The weekly budget of Ms Taylor’s income and outgoings had not been updated for this Court hearing. On an approximation of the figures supplied on 3 March 2020, her outgoings, if they are still the same, greatly exceed her increased WINZ payment of $465 per week. Without an updated weekly budget however, the figures were not able to be clarified precisely.

[33]   Given Ms Taylor’s change of circumstances, a s 38A application is the more appropriate avenue to seek either cancellation or a variation. However, s 38A prescribes the jurisdiction for such applications to be made. Section 38A provides:

38A     Cancellation of sentence of reparation

(1)A court may, on an application under subsection (2) or (3) or on its own initiative,—

(a)cancel a sentence of reparation; or

(b)cancel a sentence of reparation and substitute any other sentence (including another sentence of reparation) that could have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence was imposed.

(2)An offender who is subject to a sentence of reparation or a Registrar may apply in accordance with section 72 for an order under subsection (1) on the ground that the reparation is unaffordable because the offender's financial position has changed significantly since the sentence was imposed.

(3)A Registrar may apply in accordance with section 72 for an order under subsection (1) on the ground that the Registrar reasonably believes that the sentence is unenforceable because the offender provided false or misleading information about the offender's financial position that the court relied on in imposing the sentence or because of any other reason.

(4)The court may make an order under subsection (1) (whether on application or on its own initiative) only if—

(a)the person to whom the offender is required to pay the reparation—

(i)has been informed and has been given the opportunity to be heard about the matter; or

(ii)is unable to be found despite reasonable efforts made by the Registrar; and

(b)the court is satisfied that—

(i)the ground in subsection (2) or (3) has been established; and

(ii)enforcement of the original sentence of reparation under Part 3 of the Summary Proceedings Act 1957 (or, if applicable, under section 19 of the Crimes Act 1961) is unlikely to be effective.

(5)If the court is considering a substitute sentence,—

(a)the court must take the following matters into account:

(i)the amount of the original sentence of reparation that has been paid and the amount outstanding:

(ii)any other sentences or orders imposed on the offender for the offending for which the original reparation was imposed and the extent to which the reparation was taken into account in imposing those sentences or orders; and

(b)if the offender provided false or misleading information about the offender's financial position, the court may take the following matters into account:

(i)the extent to which the information was false or misleading:

(ii)the offender's culpability in providing the information, including whether, in the court's opinion, the offender intended to mislead the court.

(6)If the court cancels a sentence of reparation, the amount of reparation outstanding is deemed to be remitted from the date the order is made or any other date that the court may specify.

[34]   Under s 38A(2) an application for cancellation must be made under s 72 of the Act. In accordance with s 72(1)(d), where a District Court Judge has passed sentence, the application must be made to that Court. In this case therefore, an application for cancellation of a reparation order must be made to the District Court where sentencing occurred.

[35]   As I read the section therefore, Ms Taylor’s application for cancellation of the reparation order should be made either by herself or through the Registrar to the District Court at New Plymouth.  In this way,  the Court can then be appraised of   Ms Taylor’s change of circumstances with all of the relevant financial details. Further, Ms Taylor’s former partner must be informed and given an opportunity to be heard about the matter under s 38A(4)(a)(i). The Court can then take into account the matters that are prescribed under s 38A subss (4) and (5). I am therefore directing that Ms Taylor’s s 38A application to this Court is referred to the District Court accordingly.

[36]   There is one further matter that deserves mention. The order from  the District Court for reparation was at $20 per week. Ms Taylor informed the Court that when she arranged the automatic payment through the Ministry of Justice, she was informed by a Ministry Official that she would have to pay $21.85 a week because there was a five-year limitation period on reparation payments and her payment would have to be increased accordingly. This came as a surprise to Ms Milne, who quite properly acknowledged the irregularity of this arrangement and she too was unaware that this practice was occurring.

[37]   I must register my concern that a Ministry Official has unilaterally varied a Court Order for reparation at a different amount, apparently without the Court’s sanction or approval. Ms Taylor informed the Court that she had been paying $21.85 per week for a year and if the District Court cancels this sentence of reparation or substitutes it, such amounts of reparation paid will need to be taken into account. For future purposes however, this unilateral variation practice of court orders by the Ministry, if it is continuing, needs to be curtailed.

Result

[38]The application for leave to appeal out of time is granted.

[39]The appeal is dismissed.

[40]   Ms Taylor’s s 38A application for cancellation of the reparation order is referred to the District Court for determination.

Cull J

Solicitor:
Crown Solicitor, New Plymouth