The Queen v Ebdell

[2009] NZCA 536

IN THE COURT OF APPEAL OF NEW ZEALAND

CA568/2009
[2009] NZCA 536

THE QUEEN

v

LEIGH MICHAEL EBDELL

Hearing:3 November 2009

Court:William Young  P, Chisholm and Priestley JJ

Counsel:S-L Litt for Applicant

K A L Bicknell for Crown

Judgment:13 November 2009 at 2.30 pm

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

___________________________________________________________________

REASONS OF THE COURT

(Given by William Young P)

[1]        The appellant, while employed by New Zealand Post as a sorter, stole 1,500 items of mail, including packages.  He pleaded guilty to representative charges of theft and using a document dishonestly.  Judge Erber sentenced him to nine months imprisonment and ordered him to pay reparation of $4,000 (to New Zealand Post) and $1,065 to identified victims.  On appeal French J varied the reparation orders to permit payments by instalments but otherwise upheld the sentence imposed.  She later dismissed an application for leave to appeal to this Court.

[2]        The appellant now seeks special leave from this Court to appeal against the reparation order in favour of New Zealand Post.

[3]        The reparation order was based on the costs to New Zealand Post associated with the restoration (as far as possible) of stolen items to their rightful owners.  New Zealand Post claimed that its associated losses were a little over $12,000.  As noted, Judge Erber ordered reparation of $4,000 (or approximately one-third of what was sought).  It seems that no issue over reparation was taken in the District Court.  In particular there appears to have been no challenge to either the reality of the losses suffered by New Zealand Post or the jurisdiction to order reparation.

[4]        In the High Court, where the reparation component of the section came under closer scrutiny,  French J held that jurisdiction to order reparation arose under s 32(1)(c) of the Sentencing Act 2002 which provides:

(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 -

...

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

[5]        In this Court, Ms Litt for the appellant claimed that there were three points on which leave to appeal might be appropriate.  Two of these can be disposed of simply.  The first is a complaint that the order for reparation was inappropriate given the appellant’s means.  This just raises a point as to the way in which the sentencing discretion was exercised and does not warrant a grant of leave to appeal.  The second is that the losses claimed by New Zealand Post may simply have been part of its general overhead structure.  This gives rise an issue of fact which, if was to be relied on, should have been the subject of argument in the District Court.  It does not provide an appropriate basis for a second appeal.

[6]        The third point does raise a question of law, namely whether s 32(1)(c) permits reparation in favour of someone other than the owner of the property which has been lost or damaged.  In this case, the property which was stolen was that of the intended recipients of the mail whereas the relevant loss was suffered by New Zealand Post.

[7]        We consider that the approach of the Judge on this issue was plainly right.  A similar approach was taken by Tipping J in Lovatt v Police HC CHCH AP 156/91 2 August 1991 in relation to the rather more narrowly expressed equivalent provision in the Criminal Justice Act 1985.  French J’s conclusion is consistent with the wording of the current section.  The introductory words to s 32(1), that reparation may be ordered where an offender has, “through or by means of an offence... , caused a person to suffer...”, does not limit the order of reparation to the owner of the property but instead uses the more general expression, “person”.  If s 32(1)(c) had been intended to only cover property owners, it would have been easy enough to say so.  This is because the expression “victim” is defined in s 2 so as not to encompass those who merely suffer consequential loss.  Section 32(2) specifically limits awards of reparation for emotional harm to those who are “victims”.  The absence of a similar limitation in respect of s 32(1)(c) is striking.  As well, we note that there is no indication in s 7(1)(d) that reparation for harm done by offending can only be ordered in favour of victims.  Finally the language of s 38(1) which requires payment to be made to the person who has suffered the loss or damage and the specific provision for payment to an insurer is inconsistent with the appellant’s proposed interpretation.

[8]        The view that there is not a jurisdictional limitation in cases of this sort is consistent with the “liberal and non-technical” approach to s 32(1) that this Court endorsed in R v Donaldson and Chapman CA227/06 2 October 2006 at [32]. 

[9]        We emphasise that we are not seeking to define when reparation ought to be ordered nor are we saying that costs of the type incurred by New Zealand Post will invariably lead to a reparation order.  Instead we are merely saying that there was no jurisdictional bar to an award of reparation in this case.  The decision to order reparation thus involved the exercise of a sentencing discretion which is not appropriately reviewable in this Court on a second appeal.

[10]      The application for special leave is dismissed.

Solicitors:

Crown Law Office, Wellington