The Queen v Sheehy

[2007] NZCA 519

IN THE COURT OF APPEAL OF NEW ZEALAND

CA349/07
[2007] NZCA 519

THE QUEEN

v

CLINTON JOHN SHEEHY

Hearing:7 November 2007

Court:Wilson, Ronald Young and Venning JJ

Counsel:S L Baigent for Appellant

M F Laracy for Crown

Judgment:20 November 2007 at 11.30am

JUDGMENT OF THE COURT

A        The appeal against sentence is allowed in part.

BThe appeal against the sentence of three and a half years’ imprisonment is dismissed.

CThe appeal is allowed to the extent the order for reparation is reduced from $2,000 to $25.

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REASONS OF THE COURT

(Given by Venning J)

Introduction

[1]       In the early hours of the morning of 7 September 2006, the appellant and an associate attacked and robbed a man in Bath Street, Dunedin.  The victim was punched to the head several times, head butted and had his thumb bent backwards so that the ligaments were broken.  When the victim attempted to run away he was caught, had his foot stamped on and was kicked in a martial art style to the head. 

[2]       As a result the victim required surgery and physiotherapy in an attempt to regain the use of his thumb, which was essential for his employment as a chef.  He suffered dislocated bones in his left foot, loose teeth, bleeding gums and severe bruising to his head and throat area. 

[3]       The appellant and his associate stole $120 and also took the victim’s jacket.  Judge O’Driscoll sentenced the appellant and his associate to three and a half years’ imprisonment.  In addition he ordered the appellant to pay reparation of $2,000 and the associate reparation of $360.

The appeal

[4]       The appellant appeals on the ground that when taken with the order for reparation of $2,000 the sentence of three and a half years was manifestly excessive. 

[5]       Counsel for the appellant accepted that the starting point adopted by the Judge of five years was open to him but submitted that the reduction of 18 months to take account of the guilty plea and other mitigating factors, particularly the order for reparation, was insufficient. 

The issues

[6]       The issues are:

·     whether the order for reparation was appropriate;  and

·     whether the term of imprisonment was manifestly excessive.

Was the order for reparation appropriate?

[7]       We consider the Judge should not have made an order for reparation in the sum of $2,000 in this case.  The pre-sentence report disclosed that the appellant was on an invalid’s benefit and had not been in formal employment for approximately eight years.  He had outstanding fines of $230.  The pre-sentence report also noted that reparation was not sought. 

[8]       However, at sentencing counsel was apparently instructed to offer reparation in the sum of $2,000.  Counsel who appeared for the appellant at sentence has confirmed to Ms Baigent that the appellant had paid $25 into Court prior to sentence, but expected to pay the balance of the $2,000 offered by weekly instalments of $10 upon his release from prison.

[9]       In our view, the offer by the appellant to pay $2,000 was more in the nature of an offer to make amends under s 10 of the Sentencing Act 2002, than an offer of reparation.  The victim had lost goods, including his jacket, to a value of $360.  The co-accused was directed to pay reparation in that sum.  But the basis of the offer of $2,000 was not identified or explained in the Judge’s sentencing notes.

[10]     While the Court is directed by s 10 of the Act to take into account any offer of amends or measures proposed to be taken by the offender to make compensation to a victim, s 10(2) provides that in deciding whether and to what extent such offers are to be taken into account the Court must take into account whether the offer was capable of fulfilment.  On the information available from the pre-sentence report the Judge could not have been satisfied that the offer made by the appellant was capable of fulfilment.

[11]     Even if the Judge was to treat the offer of $2,000 as an offer of reparation, it could only have been reparation under s 32(1)(b) or (c) of the Act for emotional harm or loss or damage consequential on any emotional or physical harm.  If the Judge was to impose reparation of $2,000 under either of those heads, then he should have required a reparation report to be prepared in accordance with s 33 of the Act, particularly as any order would have had to be paid over time.

[12]     Further, the Judge did not comply with s 36 of the Act.  In addition to fixing the total amount of reparation, s 36 requires the Court to determine whether the amount is to be paid in one lump sum or instalments.  If the amount is to be paid by instalments the Court is required to determine the frequency and the amounts of the instalments.  That was not done.

[13]     In this case the only way the $2,000 could have been paid would have been on completion of the sentence of imprisonment, and then by minimal instalments of $10 per week, most likely by deduction from the appellant’s benefit.  Such an arrangement following a lengthy term of imprisonment will generally be undesirable, both for the offender’s prospects of rehabilitation and also for the victim.  The victim of an offence such as this should not be required to have an ongoing involvement with the offence and the offender.

[14]     This Court has previously questioned whether it is appropriate to order reparation following a significant sentence of imprisonment.  In R v Munro CA132/02 24 July 2002 the appellant was sentenced to three and a half years’ imprisonment and ordered to pay reparation of $2,500 at the rate of $30 per week, the first payment due six weeks after release.  This Court held:

[18]     … we are satisfied that it was inappropriate to order reparation to follow such a significant sentence of imprisonment.  In this regard we note the comments in the pre-sentence report that the appellant since leaving school has seldom been in employment and has received a sickness benefit, and that he suffers from chronic depression.  Despite his offer to pay reparation at the ordered weekly rate, we consider that there is no realistic indication of his ability to do so.

[15]     In the cases of R v Vallily CA251/04 10 November 2004;  R v Creek CA199/06 17 August 2006 and R v Neketai CA58/05 8 December 2005 this Court did uphold orders for reparation where the reparation was to be paid upon release from prison.  But in each of those cases, the reparation related to direct economic damage or loss sustained by the victims.  In all three cases the offender had taken money from the victims, and in two, the sums were substantial.  The reparation was directed at recompensing the victims for that.  But even in those cases, this Court observed the difficulty with reparation over time, and the need for the sentencing judge to be cautious before accepting an unrealistic offer of reparation.  In Vallily the Court observed:

[73]     In our view the reparation order made by the Judge was inappropriate because the period over which payments were required was too long.  Equally, the periodic payments ordered were relatively small.  They are unlikely to provide any significant benefit to those defrauded by Mr Vallily.

And in Creek:

[11]     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. 

[16]     While each case must turn on its own facts, the situation in the present case is more aligned to that in Munro than the cases of Vallily, Creek and Neketai where reparation orders were imposed.  We consider there is no realistic prospect of this appellant paying reparation of $2,000 after his release from prison.  The reparation order should be quashed, save for the minimal amount already paid.

Was the term of imprisonment manifestly excessive?

[17]     Given the level of violence directed at the victim, we are satisfied the Judge was entitled to adopt a start point of five years in this case.  The deduction of 18 months for all mitigating factors was sufficient, particularly given that we propose to quash the order for reparation.  Ms Baigent did not seek to argue otherwise, if the reparation order was quashed.

Result

[18]     The appeal against the imposition of a sentence of three and a half years is dismissed but the order for reparation of $2,000 is quashed and replaced by an order the appellant pay reparation of $25 being the sum he has already paid into Court.

Addendum

[19]     After the hearing Ms Laracy filed further submissions for the Crown.  Leave should have been sought before the submissions were filed.  But in any event, we have not found it necessary to seek any response from Ms Baigent.

Solicitors:

Crown Law Office, Wellington