The Queen v Donaldson; The Queen v Chapman

[2006] NZCA 279

IN THE COURT OF APPEAL OF NEW ZEALAND

CA227/06
CA233/06

THE QUEEN

v

JORDAN PATRICK DONALDSON
SCOTT DAVID CHAPMAN

Hearing:30 August 2006

Court:William Young P, Panckhurst and Ronald Young JJ

Appearances:  G M Lynch for Mr Donaldson

M J Callaghan for Mr Chapman
P J Shamy and A R McRae for Crown

Judgment:2 October 2006 at 2.15pm

JUDGMENT OF THE COURT

AThe appeals against sentences of 15 months imprisonment (Mr Donaldson) and 18 months imprisonment (Mr Chapman) are dismissed.

BThe appeals against reparation orders of $21,508.99 (Mr Donaldson) and $22,694.26 (Mr Chapman) are allowed.  Orders in the amounts of $10,000 and $6,000, respectively, are substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Panckhurst J)

A spate of burglaries

[1]       A group of young men were responsible for a spate of burglaries committed in Rolleston.  Their ages at the time ranged from 16 years to 20 years.  There were four offenders in all, although not all four were involved in every offence.

[2]       The offending occurred in February and March 2005 at a local school, the rugby clubrooms, the community centre and three commercial premises.  Typically little property was taken, but some degree of damage was caused to the premises which had been entered.

[3]       However, in the course of the burglary of the Rolleston Rugby Clubrooms a fire was started which destroyed the interior contents, and extensively damaged the building itself.  The extent of the loss was quantified at $59,982.75.  By contrast, the total loss caused in the other five burglaries was of the order of $8,000.

[4]       For his involvement in four of the six burglaries Mr Donaldson was sentenced to 15 months imprisonment, with leave granted to apply for release on home detention.  Mr Chapman’s involvement in all six burglaries saw him receive a sentence of 18 months imprisonment, also with leave.  The appellants were ordered to pay reparation in the sums of $21,508.99 and $22,694.26, respectively.  Of these amounts, $19,994.18 was on account of the damage to the rugby clubrooms.  There were four offenders involved in this crime.  Reparation was calculated on the basis of quarter shares.

The three appeal issues

[5]       The appellants challenge both the duration of their prison sentences and the reparation orders, at least in relation to the component of $19,994.18 payable on account of the rugby clubroom loss.  The underlying basis to their challenge is that, although the appellants were involved in the burglary, they were not implicated in lighting the fire and hence they should not share any responsibility for the loss which resulted. 

[6]       The appellants defended two of the burglary charges, including that of the rugby clubrooms.  In the indictment they were also charged with arson of the clubrooms, along with a third offender.  In relation to this count Judge Erber granted a discharge pursuant to s 347 of the Crimes Act 1961 in the course of trial.  The Judge held that because recklessness was an element of the offence, it was incumbent upon the Crown to “exclude the reasonable possibility of unintended and unanticipated consequences …”.  On the available admissible evidence he was not satisfied that recklessness could be established.  He said:

I have no doubt that the accused caused the fire but there is no admissible evidence of the criminal mens rea required whether directly or by inference beyond reasonable doubt.  For this reason the jury will be unable to determine guilt beyond reasonable doubt and the motions are allowed.

[7]       Building on the s 347 ruling counsel advanced two grounds of appeal:

(a)that the sentences of imprisonment (15 months and 18 months, respectively) were clearly excessive, in that they were in part based upon the Judge bringing to account as an aggravating feature the destruction by fire of the clubrooms,  and

(b)that the reparation orders, in so far as they were based upon the fire damage, were inappropriate and wrong in principle.

Depending on the outcome in relation to issue (b) a third issue may arise.  This is whether the reparation orders are appropriate and realistic having regard to the appellants’ means and the likely duration of any repayment regime.

Was the fire damage an aggravating feature of the burglary?

The Judge’s sentencing remarks

[8]       The reasons which prompted the Judge to impose the sentences of imprisonment are captured in the following extract from his sentencing remarks:

[26]     In my view the aggravating features are the number of offences and their persistence;  the considerable damage and loss, particularly to the rugby club;  the distress to the victims which may be viewed, in my view, as an attack on local institutions such as the community rugby club, the community centre and the primary school and, lastly, the gratuitous insult in urinating in the Leftfield property.

[27]     For practical purposes each of you is a first offender.  The case law makes it clear that first time burglars who are also first time offenders may not rest assured that imprisonment will not be visited on them, particularly where the offending is, as it is here, serious and sustained.  The most serious burglary, obviously, is that of the clubrooms where those who went to trial on the arson charge were acquitted for want of admissible evidence of necessary criminal intent.  Nevertheless it is a serious burglary because, at the very least, the behaviour of you two and Mr Neru caused the fire.  If you had not broken into the building it would not have been burned down.  The Bells Packhouse burglary and that of the Community Centre were also serious.

[28]     Drink, drugs, boredom and an anti-social attitude lay behind this offending.  It has caused offence to the whole of the Rolleston community.

[Emphasis added]

What is an aggravating fact?

[9]       Section 24 of the Sentencing Act 2002 governs the proof of facts relevant to sentence, whether aggravating or mitigating facts.  If an aggravating fact is disputed, the Crown must prove that fact beyond reasonable doubt: s 24(2)(c).  Here, counsel did not dispute that the fire was lit in the course of the burglary and by one of the burglars.  Rather, they argued that since the appellants had been discharged in relation to the count of arson, it was not open for the Judge to treat the fire damage as an aggravating circumstance of the burglary.

[10]     Section 24 is relevant, in particular subsection:

(3)For the purposes of this section, - 

aggravating fact means any fact that –

(a)   the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and

(b)   the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case

But this definition is not greatly helpful in the present context.  As the Law Commission Report Proof of Disputed Facts on Sentence (NZLC R76 2001) demonstrates, the definition was designed to draw a distinction between aggravating and mitigating facts.  Hence an aggravating fact is defined by reference to its potential to increase the sentence.  The definition does not purport to confront where the outer limits of aggravation lie. 

[11]     Examples of aggravating facts are, however, found in s 9(1) of the Act including, unsurprisingly:

(c)   The extent of any loss, damage or harm resulting from the offence.

But whether the loss resulted from the offence of burglary is the issue.  That question, we think, can only be answered by a careful evaluative assessment of the facts of this particular case.

[12]     It is clear from Judge Erber’s sentencing remarks this was offending born of what he termed “drink, drugs, boredom and an anti-social attitude …” on the part of the offenders.  These were not burglaries committed with a single focused intention to steal property for gain.  Some property was taken in some of the burglaries.  But equally it is evident that gratuitous damage to the entered premises was a feature of the offending.  In these circumstances we agree with the Judge that the fire was part and parcel of the burglary, and an aggravating feature of it.

[13]     We do not overlook that the appellants were discharged during trial in relation to the arson count.  Proof of a substantive charge, where there must be evidence to establish the bare elements of the crime, is one thing.  Proof of facts or circumstances associated with, or which accompanied a related offence, are another.Here, the Judge held, the Crown could not establish the mental element of arson, because there was no admissible evidence to establish which offender actually lit the fire and there was a consequent difficulty in proving wilfulness, or at least recklessness.  But the fact that the fire was lit by one of the burglars, and in the course of the burglary, was established to the criminal standard.  That, in our view, was sufficient in the circumstances of this case to make the fire an aggravating fact, regardless that the crime of arson could not be sheeted home against any of the offenders.

Were the sentences clearly excessive?

[14]     Realistically in our view Mr Lynch and Mr Callaghan acknowledged that if the fire was an available aggravating fact, the respective sentences of 15 and 18 months were not susceptible to challenge.  We agree.  It follows that the appeals against sentence must fail.

Was reparation properly payable for the fire damage?

The statutory provision

[15]     The conclusion in relation to the first ground of appeal suggests an affirmative answer to this question.  However, the obligation to pay reparation is separately defined.  The relevant provision of the Sentencing Act is:

32Sentence of reparation

(1)A court may impose a sentence of reparation if an offender has, through or by means of an offence of which the offender is convicted, caused a person to suffer -

(a)loss of or damage to property; or

(b)   emotional harm; or

(c) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property.

[Emphasis added]

The approach at sentencing

[16]     At sentencing counsel for the prisoners argued that in terms of s 32 it was not competent of the Judge to order reparation with reference to the loss occasioned by the fire.  The Judge did not accept this to be the case.  Judge Erber said:

[24]     … ‘Consequential’ loss or damage to property means ‘following from’ such loss or damage.  Consequential is an ordinary word which does not require shading or glossing by resort to considerations of whether the consequence was unintended or unexpected.  It is the ‘but for’ argument accepted by parliament – but for the smashing of the door in the burglary, the fire would not have happened because the defendants would not have been able to get in.  It may be that as among the offenders there are differences that would limit the liability of one or more inter se if that is so civil action may be taken to resolve individual liability inter se.  This is not to say that remoteness may not avail in some circumstances; for example deliberately lighting a fire with the consequence that the fire brigade is called and the fire engine on the way collides with a car causing damage.  That sort of consequential damage would be far too remote.

Consequential loss?

[17]     In this Court counsel argued that the Judge was wrong to view the fire damage as consequential loss.  They submitted that the scheme of s 32 is clear, in that subs (1)(c) is intended to cover consequential loss or damage flowing from either loss of or damage to property, or emotional harm, already made out in terms of subs (1)(a) or (b).  Counsel gave the example of intentional damage to a taxi.  The cost of physical repairs would be within part (a) of the definition.  If the taxi operator also suffered a loss of income, that would be consequential loss in terms of part (c) arising from the physical property damage.

[18]     We agree.  Section 32(1)(c) was intended to extend the reparation regime to consequential losses.  Historically, neither the Crimes Act 1961 nor the Criminal Justice Act 1985 permitted the making of reparation orders to cover consequential loss.  As to this see the decision of this Court in R v Gill (1992) 10 CRNZ 632 which contains reference to the previous statutory provisions and the previous policy to limit reparation to direct losses.

[19]     Here the fire damage occasioned a direct loss.  It was a “loss of or damage to property” in terms of para (a).  Consequential loss would be, for example, the loss of income from bar takings if the fire was in season and occasioned a loss of income from that source.  Hence, we do not accept the basis upon which the Judge made the reparation order.

But could an order be made in terms of s 32(1)(a)?

[20]     The fact that there was loss of or damage to property is beyond dispute.  The issue is whether that loss or damage was “caused” to the rugby club “through or by means of an offence of which the offender [was] convicted”.  That is, was the loss or damage caused through or by means of the burglary? 

[21]     Counsel advanced submissions directed to previous decisions in which reparation orders had been challenged in the High Court and referred as well to cases concerning causation at common law.  The former we find instructive, the latter generally less so. 

Decisions made under the Criminal Justice Act 1985

[22]     We note that the phrase “through or by means of an offence” is of long standing.  It was used in s 449 of the Crimes Act 1908 and in s 403 of the 1961 Act, under which an accused person could be ordered to pay compensation for any loss of property suffered through or by means of the crime.  When, in 1985, reparation became subject to the Criminal Justice Act the formula initially used was that where:

any act or commission that constituted the offence caused any loss or damage to any property of another  [emphasis added]

reparation may be ordered.

[23]     But this formulation occasioned difficulty.  For example in Police v Newham & Cairns (1986) 3 DCR 204 a Judge ordered reparation only for the damage caused in gaining entry to premises through burglary, holding that the theft of cash and stock which followed required the existence of a charge of theft before reparation could be ordered.  We refrain from comment.  Parliament moved promptly.

[24]     In November 1986 s 22 was amended.  The new formulation became satisfaction:

that any other person suffered a loss of or damage to property through or by means of the offence …

[25]     Section 22 as amended was considered by this Court in R v O’Rourke [1990] 1 NZLR 155. A receiver challenged a reparation order which represented the full value of the vehicle which he had received and commenced to dismantle. The gist of the complaint was that the thief caused the loss, or at least a part of it. Casey J in dismissing the appeal on behalf of the Court said this at 158:

The provisions are obviously meant to be used.  We deprecate any approach which tends to relegate them to the sidelines, as an inferior alternative to civil remedies, or which confines their application to only clear and simple cases.  That was the view taken under the former s 403 of the Crimes Act 1961, which enabled the Court to award compensation.  However, that section has been replaced by the far more detailed provisions of the present ss 22 and 23, and under their regime there can be no justification for continuing to support that former view.  On the contrary, we think the Court is now obliged, as part of the sentencing process, to consider reparation and to go into the questions of the amount and the offender’s ability to pay as fully as it can, in terms of ss 22 and 23.

[26]     In Wilson v Police HC NAP AP60/94 13 February 1995 Gallen J upheld a reparation order made against the passenger in a vehicle which had been unlawfully taken.  The passenger protested that the damage to the vehicle was caused not by the unlawful taking of it, but rather by subsequent irresponsible driving on the part of a co-offender.  The argument continued that there was no causal connection between the offence and the property damage, which occurred later and in the course of a joyride.  Gallen J rejected a “but for” approach to the interpretation of s 22, and said:

It seems to me that the section can reasonably be interpreted in a similar way to remoteness questions which arise in tort and that where it can be said a reasonable person could reasonably foresee the kind of damage which occurred as a result of the actions in which they participate, then the section applies.

The Judge was satisfied that an offender who participated in an unlawful taking for the purposes of a joyride was caught by s 22, upon an application of the remoteness test he postulated.

[27]     In Wilmot v Police HC DUN AP25/96 15 July 1996 Tipping J upheld a reparation order made against a receiver.  The appellant received stolen goods from the thief.  They were on-sold.  Full reparation was ordered, which elicited the complaint that it was the thief, through or by means of the offence of theft, who caused the loss.  Accepting that the then s 22 should be given a liberal interpretation, Tipping J observed, after reference to common law causation principles, that it was not necessary for the offender’s contribution to be the sole cause of the loss.  It was sufficient if his conduct materially contributed to that loss. 

[28]     The Judge continued:

I have to this point analysed the matter on what one might call conventional causation principles.  It must not, however, be overlooked that s22 does not speak of the offender causing the damage or loss.  Parliament has chosen a potentially wider expression than that.  The loss or damage must occur through or by means of the offence for which the offender appears for sentence.  In my judgment both the letter and the spirit of s22 are satisfied in the present case.  Bearing in mind the purpose of and policy behind a sentence of reparation it can fairly be said in the present case that the complainants suffered loss of their property through or by means of the Appellant’s offence of receiving.

[29]     In similar vein the courts in England have advocated a broad and non-technical approach to reparation provisions.  For example in Bond v Chief Constable of Kent [1983] 1 All ER 456 McCullough J said at 459:

In R v Thomson Holidays Ltd [1974] 1 All ER 823 at 829, [1974] QB 592 at 599 Lawton LJ said:

‘Parliament, we are sure, never intended to introduce into the criminal law the concepts of causation which apply to the assessment of damages under the law of contract and tort.’

In my judgment, the sense of that observation is this:  that in assessing whether compensation should be awarded under s 35 of the Powers of Criminal Courts Act 1973 the court should approach the matter in a broad commonsense way and should not allow itself to become enmeshed in the refined questions of causation which can sometimes arise in claims for damages under the law of contract or tort.  The court simply has to ask itself whether the loss or damage can fairly be said to have resulted from the offence.

While we agree with this description of the policy to be adopted in interpreting a reparation provision, the fact remains that a workable test, based on the words of the section, must be fashioned.

The proper interpretation of s 32

[30]     The statutory scheme of the Sentencing Act is informative.  A purpose of the Act is “to provide for the interests of victims of crime”: s 3(d).  Hence, one of the defined purposes of sentencing is “to provide reparation for harm done by the offending”: s 7(1)(d).

[31]     Section 12 provides:

Reparation

(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.

(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 of reparation in a case where it is lawfully entitled to do so, it must give reasons for not doing so.

Consistent with the presumption in favour of reparation, s 14(2) provides that where an offender has the means to pay a fine or reparation, but not both, the Court must order reparation at the expense of imposing a fine.

[32]     Against this background s 32(1) (see [15]) is to be construed.  We note two points in relation to the wording of the section.  First, it is significant that when the Sentencing Act was passed in 2002 Parliament retained the formula “through or by means of an offence of which the offender is convicted”.  This must be seen as an endorsement of the liberal and non-technical interpretation of this phrase under the predecessor sections.  Second, we note, however, the use in s 32 of the word “caused” in the phrase “caused a person to suffer”.  Previously s 22(1) spoke of emotional harm, or property damage, which was “suffered through or by means of the offence”.  This, we think, was a better formula, avoiding as it does reference to the concept of causation, with its echoes in relation to other areas of the law.

[33]     For all that we do not see the use of “caused” in s 32 as dictating a change in approach.  The words “through or by means of an offence” remain and provide the controlling concept. 

[34]     In terms of the approach to this concept it is important to recognise the nature of a reparation order, as compared to a fine, and the interrelationship of the two.  A fine is punitive.  It is a pecuniary penalty imposed by and payable to the state.  By contrast, an order for reparation is compensatory in nature.  Reparation is intended, wherever possible, to restore the victim’s position in relation to property loss or damage, emotional harm, or consequential losses.

[35]     Nonetheless, reparation is effected by a sentence of the Court: s 32(1).  And, there are limits upon the sentence.  For example, s 32(6) requires that a determination of the amount of reparation must take into account any amends to be made in terms of s 10;  while subs (7) restricts reparation to pecuniary payments as opposed to performance of work or services.  Section 30 requires that details of any reparation order are to be provided to the person who suffered harm, loss or damage, and any reparation received is to be paid to that person, or at his direction, to his insurer: s 38(1).  Importantly, s 38(2) provides that the person who suffered harm, loss or damage may “recover by civil proceedings any damages in excess of the amount recovered under the sentence”.

[36]     These provisions reinforce that a sentence of reparation is compensatory in nature.  This in turn suggests that it may be appropriate to have regard to common law principles of causation.  The statutory phrase, “through or by means of an offence”, is of wide expression and its outer limits are not immediately obvious.  It may, therefore, prove helpful to have resort to the concepts of remoteness, materiality and intervening act (novus actus interveniens), at least in analysing more difficult factual situations.  However, we endorse the viewpoint that reparation is to be approached in a broad commonsense way, and resort to refined causation arguments is not to be encouraged.

[37]     The statutory phrase is in two disjunctive parts.  The first is damage or harm caused “through” an offence.  And the second is damage or harm caused “by means of” an offence.  “Through” conveys a more direct connection between the offence and the damage or harm.  In the present case, for example, damage to the premises in obtaining entry, or loss arising from the theft of items, would be caused through the offence itself. 

[38]     By contrast, the words “by means of” the offence contemplate a less direct association with the burglary.  They capture damage or harm closely associated with the offence, although not necessarily arising from the very acts which constitute the definition of the offence.  For example, a receiver who takes possession of a stolen car, and proceeds to dismantle it, causes damage or loss by means of the offence, albeit through actions committed when the offence was completed.  Likewise in this case the fire damage was caused in close connection with the burglary and therefore, by means of it.

[39]     For these reasons we are satisfied that reparation for the fire damage was payable in this case, although of course pursuant to s 32(1)(a).

Were reparation orders appropriate having regard to the financial capacity of the appellants?

Relevant section

[40]     The Sentencing Act provides

35Taking into account financial capacity of offender

(1)If the offender has insufficient means to pay the total value of the loss, damage, or harm, the court may sentence the offender to make -

(a)reparation for any amount that is less than the value of the loss, damage or harm; or

(b)   payment by instalments in respect of the loss, damage, or harm; or

(c)   both (a) and (b).

Subsection (2) provides that where an offender is both fined and ordered to pay reparation, any payments received are to be applied first to satisfaction of the reparation order.

The sentencing decision

[41]     The Judge in the course of his sentencing remarks made no express reference to the appellants’ means.  A reparation report had been provided.  It was comprehensive in relation to the losses sustained by the various victims, but with reference to the means of the three offenders who remained to be sentenced it said:

The ability of Chapman, Donaldson and Te Tau to pay reparation has not been able to be ascertained … .  Counsel may be able to advise the Court about their clients’ ability to make amends when making their sentencing submissions.

What, if anything, counsel said in submissions is not recorded, but, more importantly, the sentencing remarks are silent on the issue.

[42]     Mr Donaldson, who is aged 19 years, was described in the pre-sentence report as having a variable employment history.  At the time of sentencing he expressed himself confident of obtaining work with a chicken processor, before seeking to join the army in a few years time.  Mr Chapman is aged 21 years and at the date of sentencing was caring for his two year old daughter and in receipt of a domestic purposes benefit.

Appropriateness of the orders

[43]     We do not consider that the present orders can be sustained.  Payment of the reparation sums, $21,508.99 (Mr Donaldson) and $22,694.26 (Mr Chapman) was in each case suspended “until release”.  If at that stage payment was to commence at say $50 per week it would take approximately nine years for full reparation to be paid.  It remains a requirement that reparation orders be set at a level which makes it realistic for the offender to meet the order, given his or her financial circumstances: R v Bailey CA306/03 10 May 2004.

[44]     Accordingly, we reduce the orders to $10,000 (Mr Donaldson) and to $6,000 (Mr Chapman), in light of their respective financial situations.  Payments received shall be applied pro rata to meeting the different amounts respectively due to the complainants.

Solicitors:
Crown Law Office, Wellington