W v Police HC Invercargill Cri-2007-425-43
[2008] NZHC 59
•5 February 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2007-425-000043
W
Appellant
v
POLICE
Respondent
Hearing: 5 February 2008
Appearances: ASP Tobeck for Appellant
M Morris for Crown
Judgment: 5 February 2008
ORAL JUDGMENT OF HON. JUSTICE JOHN HANSEN
The appeal is dismissed.
REASONS
[1] The appellant, Mr W , was before the Court on two charges of intentional damage. On 16 April 2006 he was responsible, clearly with others, when they had been drinking too much, for overturning two vehicles. In the event, Mr W was the only person charged. He pleaded guilty. The Judge dealt with the matter by way of community work, but ordered that the full amount of reparation in
the sum of $3461.25 should be paid by Mr W .
W V POLICE HC INV CRI-2007-425-000043 5 February 2008
[2] Mr W appeals against the reparation order. The basis of that appeal is that clearly others were involved; he co-operated with the police; he gave the names of those other persons to the police, but for whatever reason the police have determined not to prosecute those other individuals. It is said that there were seven others involved and he should only pay his share, being one-eighth of the total damage. There is, as counsel have indicated, no direct authority on a point such as this.
[3] Section 32 of the Sentencing Act 2002 allows for the Court to impose a sentence of reparation where there is loss or damage to property. Under s12, if the Court is lawfully entitled to impose a sentence of reparation – and I note in passing there is no issue taken with the imposition of the reparation, just the quantum – then the Court must impose it unless it is satisfied the sentence would result in undue hardship for the offender, dependence of the offender, or that there are other special circumstances that would make it inappropriate. Clearly there is no suggestion of any undue hardship in this case: although on ACC at the relevant time, he is a man who has been in full employment. The real submission must be that there are special circumstances, those being that there were other persons involved who have not been prosecuted by the police.
[4] There is reference to the decision of the Court of Appeal in R v Lewis CA7/98, 17 June 1998, which is prayed in aid by the appellant. There is also reference to a passage in Adams responsibly brought to my attention by Mr Tobeck, because it does not assist him. There, the learned authors at 32.11, state:
Where there are co-offenders, it will normally be the case that the full quantum of reparation will be apportioned between them according to their degree of culpability. However if one co-offender is unable to make reparation because of insufficient means, or has not been convicted, the Court may look to the remaining offender or offenders to meet the total loss, damage or harm.
[5] In my view Lewis is to a similar effect and meaning. In that case one of the co-offenders was able to meet reparation, the other was not. In that case the Court of Appeal stated:
The basis of reparation is not intended to be punitive but restorative and accordingly degrees of culpability may be a relevant consideration only
when reparation may be practically apportioned amongst known offenders on their being sentenced. The fact that Mr Chadwick cannot practically make reparation is not Mr Lewis' loss but the complainant's.
[6] This is exactly the case here. The other people allegedly involved have not been convicted. There is no practical way that the reparation can be apportioned amongst them. That, as has been noted, is not Mr Watter’s loss but the complainant’s. It would be quite wrong as a matter of principle to effectively apportion reparation against those who had not been brought before the Court and convicted. The appeal is dismissed.
Solicitors:
Eagles Eagles & Redpath, Invercargill
Preston Russell Law, Invercargill
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