The Queen v Creek

[2006] NZCA 219

IN THE COURT OF APPEAL OF NEW ZEALAND

CA199/06

THE QUEEN

v

STEPHEN MICHAEL CREEK

Hearing:7 August 2006

Court:William Young  P, Robertson and Arnold JJ

Counsel:J B McCarthy and M B Chilton for Appellant

A M Powell for Crown

Judgment:17 August 2006 at 11am  at 11am

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

REASONS OF THE COURT

(Given by William Young P)

[1]       This is an application for leave to appeal against a judgment delivered by Fogarty J in the High Court at Christchurch on 7 April 2006 in which he dismissed an appeal against a reparation order imposed in the District Court.

[2]       The appellant came before the District Court because he had misappropriated $231,399.12 from his employer.

[3]       The appellant is now in his late 40s.  He has been employed throughout his adult life although he does have an injury which limits his ability to do manual work.  He was employed as a salesman at the time of his offending.  After he was dismissed from his employment following the discovery of his offending he was able to obtain other employment, also as a salesman, but he lost this job before sentencing.  He and his wife live in a home which is owned by a family trust of which he is a discretionary beneficiary.

[4]       Section 12(1) of the Sentencing 2002 Act provides:

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

[5]       When the appellant appeared for sentence he offered reparation for the full amount of his defalcations, although on the material we have it may be that he did not envisage an order in the vicinity of $231,000.

[6]       The District Court Judge who sentenced the appellant imposed a prison sentence of two years nine months imprisonment.  He also ordered him to pay reparation of $50,000 by way of an immediate payment of $300 with the balance to be paid at $100 per week following his release from prison.  At this rate, the appellant will take some 9½ years to pay the sum ordered.  When making this order, the sentencing Judge said:

[37]     I have to deal with reparation.  I think it is important that there is an indication to the community that even those who take significant amounts with no real hope of it ever being repaid or repaid within a relatively manageable time there should be some reparation paid.

[38]     The higher courts have said that reparation is not to be a total millstone around a person’s neck forever.  You have offered to pay the full reparation figure and that is an indication of acceptance of your offending.  But I think that that is unrealistic over time and do not intend to impose it.  What I intend to impose is a more realistic figure that can be of assistance to the company over time but also not be the total millstone around your neck.

[7]       We note in passing that although the reparation report which the Judge had was not accurate in its assessment of the appellant’s financial circumstances (as it ignored the family trust and assumed that he was still employed and thus over-stated his ability to pay), the Judge was well aware that the family trust owned the house and obviously proceeded on the basis that the sentence of imprisonment imposed would be inconsistent with the appellant being employed.

[8]       An appeal against the reparation order was dismissed by Fogarty J:

[10]     On the facts of this case I do not consider 9½ years to be excessive.  It certainly was not considered excessive by the appellant at the time he made the proposition because indeed he made the proposition for $100 per week for full reparation.  The Judge cut that back to $50,000.  I am not satisfied that there is any error of law on the part of the judge in setting payments per week which have a term of 9½ years.

[11]     Turning to whether or not the order can be challenged on the basis that there is doubt as to whether the appellant could obtain employment and therefore a risk that he becomes an offender, there are two answers.  First, on the facts before the Judge, there was every prospect that the appellant would be able to obtain employment upon release.  They remain the facts.

[12]     Second, if the appellant is not able to obtain employment and cannot pay the $100 per week after release, he can obtain relief via s 145 of the Sentencing Act:

145     Enforcement of payment of amounts under sentence of reparation, reparation orders, etc

(1)      This section applies to—

(a)       any amount that is required to be paid under a sentence of reparation; or

(b)      any amount that is required to be paid under any order made under section 106, section 108, or section 110.

(2)      Part 3 of the Summary Proceedings Act 1957 or (as the case may require) sections 19 to 19F of the Crimes Act 1961 apply with all necessary modifications as if the amount to be paid were a fine.

(3)      The remission of the whole or any part of the amount required to be paid under a sentence of reparation does not affect the right of the person who suffered the harm, loss, or damage to bring civil proceedings, or make claims under any accident compensation legislation applicable at the time of the offending, to recover the amount so remitted.

…

[14]     There always must be a degree of uncertainty as to whether offenders on release will obtain employment and be able to make reparation.  I cannot conceive that Parliament envisaged that reparation orders by way of payments per week can only be made when there is a high degree of certainty that an offender will obtain employment upon release.

[9]       The basis of the proposed appeal is that it was an error of law for the District Court and High Court not to conclude that the order in question would cause undue hardship.  The particular complaint is that that Fogarty J assumed without evidence that the appellant would be likely to be able to meet the payments.  Associated with this argument is a complaint as to the period of time over which payments are to be made, which is said to be very much more than the norm.

[10]     The Crown did not oppose the application with any enthusiasm.

[11]     We have given the case anxious consideration.  A defendant who is appearing for sentence and facing imprisonment has every motive to make an unrealistic reparation offer.  Common sense suggests that such offers (and the associated implied assertions as to the practicality of meeting orders made as a result) should be taken with a grain of salt.  Further, at least by the standards which obtained prior to the Sentencing Act 2002, the length of time over which reparation must be paid is atypically long.  So if this were a general appeal against the judgment of Fogarty J, it would have some prospect of success.  However our jurisdiction over the judgment of Fogarty J is not by way of general appeal but, under s 144 of the Summary Proceedings Act 1957, is limited to issues of law.  The scheme of the statute is not to provide in effect a second review in this Court of sentences imposed in the District Court.

[12]     It cannot be the case that a reparation order is not available in relation to offenders who are imprisoned.  As well the jurisdiction may obviously be exercised even if it is uncertain whether the offender will have the means to meet the order on release from prison. Should it transpire that an offender is not able to meet the terms of an order, a mechanism for relief (in the form of s 145) will be available, as Fogarty J pointed out.  We are not suggesting that the availability of this mechanism (which we accept does not necessarily provide a complete let out for impecunious offenders) means that Judges should impose reparation orders without having a reasonable measure of confidence that they can be met.  But here given that the appellant was prepared to offer reparation for far more than the amount fixed and, more significantly, the appellant’s work history, it was open to the Judges in the District Court and High Court to conclude that there was a sufficient likelihood of the appellant being able to pay to warrant the making of the order.

[13]     There is no doubt that the period of time over which the payments are to be made is longer than the norm.  This, however, is not by the quite the margin suggested by the appellant, see for instance R v Neketai CA58/05 8 December 2005 (reparations to be paid over five years) and R v Vallily CA251/04 10 November 2004 (reparations to be paid over eight years).  Further, cases decided before the Sentencing Act 2002 came into effect must now be read in light of the legislative direction provided for by s 12 which is in more imperative terms than the corresponding direction in the Criminal Justice Act 1985.

[14]     In those circumstances we can discern no arguable point of law and the application for leave to appeal is dismissed.

Solicitors:
Jonathan McCarthy Lawyer, Christchurch for Appellant
Crown Law Office, Wellington.