Thomson v The Queen
[2020] NZHC 901
•5 May 2020
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2020-425-5
[2020] NZHC 901
BETWEEN ANDREW W C TONKS THOMSON
Appellant
AND
THE QUEEN
Respondent
Hearing: 4 May 2020
(by way of Virtual Meeting Room)
Appearances:
K McHugh for Appellant
R Donnelly for Respondent
Judgment:
5 May 2020
JUDGMENT OF MANDER J
This judgment was delivered by me on 5 May 2020 at 4 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: .
THOMSON v R [2020] NZHC 901 [5 May 2020]
[1] Andrew Thomson was sentenced on various charges of fraudulent conduct to 28 months’ imprisonment and ordered to pay reparation in the amount of $71,800.1 Mr Thomson appeals the amount of the reparation order.
Background
[2] As a result of a personal relationship that Mr Thomson developed with his victim, he obtained $300,000 from her to invest in a bogus property development. He forged documents and made false representations to obtain the funds. Other frauds were committed on other businesspeople at around the same time, but they were fortunately able to cancel agreements and avoid loss upon discovering Mr Thomson’s true identity and his past fraudulent offending.
[3] Mr Thomson has some seven previous convictions for stealing in Australia. When he came to New Zealand he stole from his employer and deceived a finance company into lending him money by creating fictitious and altered documents. As a result of those frauds he was disqualified from holding office as a company director and imprisoned. A little after a year from being released from prison he changed his name and began his relationship with his present victim. The loss to her from Mr Thomson’s fraudulent offending has been calculated by police to amount to
$88,000.
District Court sentencing
[4] Judge Brandts-Giesen, in arriving at an effective sentence of 28 months’ imprisonment, dismissed Mr Thomson’s claims of remorse. The Judge noted his convictions for similar offending in Australia and his fraudulent conduct that commenced shortly after he arrived in New Zealand. As the Judge put it, Mr Thomson’s latest offending “was more of the same but on a greater scale”.
1 Theft by a person in a special relationship (s 220(1)(b) of the Crimes Act 1961, maximum penalty of seven years’ imprisonment); two charges of using a forged document to obtain a benefit (s 257(1)(a) of the Crimes Act 1961, maximum penalty of 10 years’ imprisonment); using a document to claim property (s 228(1)(b) of the Crimes Act 1961, maximum penalty of seven years’ imprisonment); two charges of managing a company whilst prohibited (s 382(1) of Companies Act 1993, maximum penalty of five years’ imprisonment/$200,000 fine); making a false statement (s 377(1) of the Companies Act 1993, maximum penalty of five years’ imprisonment/$200,000 fine).
[5] Previous reparation for the earlier offending in the sum of some $18,000 remains unpaid. Judge Brandts-Giesen shared the view of the pre-sentence report writer that Mr Thomson’s risk of reoffending is very high.
[6] After addressing the question of what Mr Thomson could pay by way of reparation, the Judge settled on the sum of $63,800 in response to the monetary loss suffered by the victim. The Judge also imposed an emotional harm payment of $8,000. In doing so, the Judge noted the emotional betrayal of the victim who had entered into a personal relationship with Mr Thomson and the obvious breach of trust.
The appeal
[7] The appeal lies only against the total reparation ordered of $71,800. It is submitted the amount is excessive and should be replaced with an emotional harm reparation order for the reduced sum of $5,000 to be paid at $100 per week.
[8] Based on the applicable provisions of the Sentencing Act 2002 and the guiding case law, the Crown acknowledges that the current reparation order made in response to the victim’s loss has to be reduced and replaced with a more modest sum.
The relevant principles
[9] Section 12 of the Sentencing Act requires a sentencing judge to order reparation unless satisfied that such an order would result in undue hardship for the offender. If the person has insufficient means to pay the total value of the victim’s loss, the Court may order reparation for a lesser amount, order payment by instalments, or both.2
[10]The Court of Appeal in R v Pender observed that:3
Section 35 provides the sentencing Judge with flexibility to tailor the sentence of reparation to meet the financial capacity of the offender. The sentencing Judge should have a realistic measure of confidence that the payment can be made ...
2 Sentencing Act 2002, s 35.
3 R v Pender [2007] NZCA 465 at [15].
[11] “Undue hardship” is something more than mere hardship. It requires the hardship, when objectively assessed, to be excessive or greater than the circumstances warrant.4 There is no statutory guidance as to the period over which a reparation order should be completed. However, the courts have been clear that orders to pay large sums over extended periods are inappropriate and are to be avoided.5 Periods of repayment which extend significantly beyond five years are generally regarded as excessive.6
Discussion
[12] Mr Thomson’s appeal is brought on the basis that the sentencing Judge failed to take his financial and personal circumstances into account when making the order and that it was plain that the sum imposed would result in undue hardship to him. The Crown accepts that the quantum of the reparation is not sustainable. While acknowledging that reparation was a live issue for Judge Brandts-Giesen to consider, it notes that it was regrettable that the appropriate legal principles governing the setting of a suitable amount of reparation were not canvassed with the sentencing Judge.
[13] As at the day of his sentencing, Mr Thomson was reported as advising that he had no means to pay any of the $88,000 owed to the victim. He already had $17,310 in outstanding reparation and $439.60 for enforcement fees as a result of his earlier convictions. Mr Thomson was unemployed, of no fixed abode, and has no family in New Zealand. His parents reside in Australia, and while they confirm their intention to provide financial support for him to return home, as the Judge observed, there was no suggestion of them financing their son to assist him to make reparation.
[14] Mr Thomson’s immigration status after serving his term of imprisonment was not initially clear. He believed he would be deported, but inquiries of the New Zealand Immigration Service have confirmed that he is not liable for deportation. The report writer also received advice from the Ministry of Justice that should Mr Thomson plan to return to Australia a warrant for his arrest would be issued to prevent him from
4 Hunt v Police HC Wellington AP232/99, 29 September 1999 at [7].
5 Fannin v Police [2016] NZHC 168 at [23]; R v Bailey CA306/03, 10 May 2004 at [25]; R v Pender, above n 3; Scanlon v R [2013] NZCA 502.
6 Lawrence v Police [2019] NZHC 916 at [15], citing as an example Guinness v Police [2015] NZHC 883.
leaving the jurisdiction because of his outstanding reparations and fines. Mr Thomson reported that if he was permitted or required to stay in New Zealand and could obtain employment he would be able to pay reparation.
[15] In summary, the pre-sentence report writer observed that Mr Thomson had not significantly contributed to the payment of his outstanding reparation prior to his present offending, and that the addition of a further amount in the sum of $88,800 “is also not going to receive his attention as a priority despite his intention to make it so”.
[16] In speaking with the pre-sentence report writer, Mr Thomson optimistically estimated that he would be in a position at some future time to earn an income that would allow him to commence weekly repayments to the victim of between $400-
$500. However, given Mr Thomson’s circumstances and his background of fraudulent offending, that does not appear to be a realistic assessment even should he gain employment. Proceeding on a figure that he would be able to afford $50 per week in repayments following his release in October 2021 and, leaving to one side his present reparation debt, if he commenced payments in January 2022 it would take him some 27 years to pay the sum ordered of $71,800.
[17] As observed by the Court of Appeal in Pender, a sentencing Judge should have “a realistic measure of confidence” that payment can be made and that the arrangements for doing so are realistic when considered against the financial circumstances of the offender.7 I accept, as acknowledged by the Crown, that the sentencing Judge could not have had any such confidence that the reparation payments could be made. Moreover, that such a sum could be paid within a reasonable period.
[18] The situation is akin to that in Scanlon v R.8 In that case the appellant was sentenced to two years and three months’ imprisonment and ordered to pay reparation in the amount of $138,172.77 at $50 per week from her release. It would take 53 years to pay such a sum at the rate required. The Court of Appeal accepted that the sentencing Judge could not have had “a realistic measure of confidence” that the
7 R v Pender, above n 3, at 15.
8 Scanlon v R, above n 5.
reparation payments could be made, and a reduced amount of $13,000 was substituted at $50 per week.9
[19] Similarly, in Lawrence v Police, Moore J dealt with an appeal from a reparation order in the sum of some $94,000.10 At $50 per week it would take the offender 36 years to repay the full amount ordered. After noting that the sentencing Court had not addressed the appellant’s financial capacity to meet a reparation order nor how long such an order would have to endure, Moore J accepted that requiring payments over such an extended period of time readily equated to undue hardship and was manifestly excessive in the circumstances.11 The same conclusion is unavoidable in the circumstances of the present case.
Disposition
[20] At sentencing, Mr Thomson accepted the Court was able to direct the payment of some reparation and offered to make a payment for emotional harm in the sum of
$5,000 to be paid by way of instalments. On the appeal it is submitted that this should be the extent of the reparation that he is required to pay, and that he can do so at $100 per week, commencing from January 2022. It is submitted the balance of the order should be quashed.
[21] The Crown submitted that an appropriate reparation sum would be $13,000, made up of the $8,000 emotional harm payment and the balance of $5,000 to mark the victim’s monetary loss. If ordered to be paid at the rate of $50 per week following Mr Thomson’s release from prison, the payment period would not exceed some five years. This would accord with the approach taken in other cases involving similar levels of loss.12
[22] Whether such an order should be made in the terms suggested by the Crown remains to be considered on the basis of whether the imposition of such a sum would
9 At [10] and [15].
10 Lawrence v Police, above n 6.
11 At [27].
12 Scanlon v R, above n 5; Lawrence v Police, above n 6.
result in undue hardship for Mr Thomson. In that regard, the remarks of the Court of Appeal in Pender are to be borne in mind:13
It will almost invariably be the case that there is some hardship for those ordered to pay reparation; as there is almost invariably hardship for those who are the victims of the offending that gives rise to the financial loss in respect of which reparation is required.
[23] There is an element of speculation in assessing Mr Thomson’s future capacity to earn an honest income after he has served his prison sentence. Because of his record of dishonesty, his prospects would appear limited, but it is by no means clear that he would not be able to obtain employment. He himself claimed to be hopeful of doing so, particularly if he has the opportunity to return to his home in Australia, although he would then be beyond the jurisdiction of this country to enforce the order.
[24] A reparation order in the sum of $13,000 is likely to cause Mr Thomson hardship, but I do not consider such hardship could be described as “undue”. Because of the imponderables that bear on any prediction of Mr Thomson’s future position, the figure is somewhat arbitrary, but such a reduced sum could not be described as unreasonable. In the circumstances, and bearing in mind the hardship suffered by Mr Thomson’s victim, I do not consider such a modified order would result in undue hardship to him so as to preclude such an order being made.
[25] As already noted, it was suggested on behalf of Mr Thomson that he pay reparation for emotional harm at $100 per week on the basis of a lesser reparation sum of $5,000. However, that proposed instalment figure does not appear to take into account his existing reparation obligations relating to his earlier offending that he must also address. On balance, I consider the appropriate course, and one that will not give rise to undue hardship, is to require Mr Thomson to pay the sum of $13,000 in reparation at $50 per week.
Result
[26]The appeal is allowed.
13 R v Pender, above n 3, at [28].
[27] The sum of $71,800, comprising a payment of $8,000 for emotional harm and reparation for loss in the sum of $63,800, is quashed. In substitution, I order reparation to be paid in the sum of $13,000. This will comprise the sum originally contemplated of $8,000 for emotional harm and the reduced amount of $5,000 for the victim’s monetary loss. The sum of $13,000 is to be paid at the rate of $50 per week commencing from 12 January 2022.
Solicitors:
McHugh Law, Invercargill Crown Solicitor, Invercargill
0
4
0