Williamson aka Palmer v Police
[2021] NZHC 999
•6 May 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-409-000033
CRI-2021-409-000034 [2021] NZHC 999
BETWEEN STEVEN JOHN WILLIAMSON (AKA) BRIAN MAX PALMER
AppellantAND
NEW ZEALAND POLICE
Respondent
Hearing: 28 April 2021 Appearances:
Appellant in person
J E Lancaster for the Respondent
Judgment:
6 May 2021
JUDGMENT OF NATION J
Introduction
[1] The appellant, Steven Williamson, was convicted and sentenced in 2015 and 2018 for a number of dishonesty offences. In sentencing Mr Williamson, the District Court ordered him to pay reparation of $10,970.
[2]He appeals on the basis the reparation orders are causing him undue hardship.
Leave to appeal
[3] Mr Williamson appeals out of time. The respondent did not object to leave being granted but noted there is an issue over the proposed appeal of the 2015
WILLIAMSON v POLICE [2021] NZHC 999 [6 May 2021]
reparation orders, because there has already been an appeal to the High Court against that sentence.1
[4] I grant leave to appeal the reparation order made in 2018 but discuss reparation issues relating to both sentences.
Background
[5] On 12 February 2015, Mr Williamson was sentenced by Judge Couch to two years and seven months’ imprisonment on five charges of obtaining or attempting to obtain by deception.2 In respect of reparation, the Judge said:3
You will also be ordered to pay reparation on charging document ended 5131 of $3895.00, on charging document ended 5130 reparation of $2495.00 and on charging document ended 5133 reparation of $2500.00.
[6]Mr Williamson appealed that sentence. In the judgment of the High Court of
23 March 2016, that sentence was reduced to two years and three months’ imprisonment.4 There had been no challenge to the order for reparation. The High Court ordered that the orders for reparation in the District Court were to remain in effect. Accordingly, the orders for reparation made in the District Court in 2015 have already been the subject of an appeal.
[7] On 31 May 2018, Mr Williamson was sentenced by Judge Orchard to 13 months’ and two weeks’ imprisonment on three charges of using a document for pecuniary advantage.5 The offending occurred after Mr Williamson had been released from prison for the 2015 convictions. Her Honour said:6
While I am going to make reparation orders in relation to the losses, the complainants are going to be waiting a long time, if indeed not forever, before they are going to be repaid… you also have other fines and reparation to pay.
[8]The Judge imposed reparation in the sum of $2,080 in respect of three charges.
1 Williamson v Police [2016] NZHC 520.
2 Police v Williamson [2015] NZDC 2348.
3 At [8].
4 Williamson v Police, above n 1.
5 Police v Williamson [2018] NZDC 11269.
6 At [7].
Submissions
Appellant’s submissions
[9] Mr Williamson asks the Court to give him a “clean slate” and quash the reparation orders. He says he has outstanding reparation of approximately $11,000 with no prospect of repaying these funds. He says he has ongoing health issues which restrict his ability to obtain long term work.
[10] Mr Williamson explained to the Court that he had been deported to New Zealand from Australia in 1998 and, once back in New Zealand, he had been regularly involved in dishonesty offending. He accepted this offending would have caused harm to the various businesses he had defrauded. He expressed remorse and shame for his offending. His acknowledgements were consistent with Judge Orchard’s description of him in 2018 as having, since 1987, been an incorrigible, dishonest offender.
[11] Mr Williamson must have been released from the 2018 sentence of imprisonment at some point in 2019. To his credit, he has not been charged with further offending. He is now aged 61. Mr Williamson says he has finally turned away from his dishonest offending and leads a simple but law-abiding life but struggles to make ends meet. He has not been able to obtain employment, has various medical problems and survives on a benefit. He has no assets.
Respondent’s submissions
[12] The respondent accepts, on the basis of the evidence filed by Mr Williamson, the reparation orders appear to be causing him undue hardship. However, it is submitted this Court does not have sufficient information about Mr Williamson’s financial position and the amount of reparation already paid (if any), to determine if any lesser quantum would be appropriate. Accordingly, the respondent submits this Court may allow the appeal and quash the reparation order, then remit the matter back to the District Court for reconsideration. The respondent notes an alternative avenue for Mr Williamson is to apply for an order for cancellation under s 38A of the Sentencing Act 2002.
Appeal principles
[13] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.8 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.9
Discussion
Relevant law
[14] Section 12(1) of the Sentencing Act provides a court must impose a sentence of reparation if it is lawfully entitled to do so:
… unless it is satisfied that the sentence… would result in undue hardship for the offender… or that any other special circumstances would make it inappropriate.
[15] If an offender has insufficient means to pay reparation the court may order reparation for an amount that is less than the value of the loss, damage or harm.10 If the court considers a sentence of reparation may be appropriate, it may order that a reparation report be prepared.11 The report may enable the court to make an assessment of undue hardship under s 12, assess the offender’s financial capacity under s 35, and determine any conditions which ought to be imposed under s 36(1).12
7 Criminal Procedure Act 2011, ss 250(2) and 250(3).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Ripia v R [2011] NZCA 101 at [15].
10 Sentencing Act, s 35(1)(a).
11 Section 33(1).
12 R v Wonnacott [2009] NZCA 414 at [20]; cited in Stewart v R [2018] NZCA 375 at [13].
[16] A reparation report is not a mandatory requirement. The court may decline to seek a reparation report and impose a sentence of reparation without further enquiry if it is satisfied:13
(a) as to the amount of reparation the offender should pay; or
(b) the information referred to in the report is available through other means; or
(c) in all the circumstances, the court considers a report is unnecessary.
[17] The reparation to be paid should be realistic, taking into account the financial resources of the offender.14 While the Sentencing Act does not specify the maximum period over which reparation is to be paid, the general principle is a court “should not involve bonding the offender for very long periods”.15
The reparation orders
[18]The 2015 pre-sentence report prepared for the District Court stated:
… Mr Williamson accepted the reparation sought by the victims of his offending, a total of $8,890 … He is willing to pay reparation but stated that he is not in a position to do so at this stage. If he is able to secure employment in the future he stated a commitment to paying reparation then. Mr Williamson is without income or savings. He reports a debt of around $15,000 to
$20,000… Mr Williamson has no realisable assets.
[19] In respect of the 2015 convictions, reparation in the sum of $8,890 was imposed by Judge Couch.16 It does not appear that a reparation report was ordered. Nor is there mention of the conditions of repayment. The extract above from the pre- sentence report indicates Mr Williamson may not have had the financial capacity to pay reparation at that time. Mr Williamson may however have indicated he anticipated in the future having the means to pay reparation. He did not oppose the making of a reparation order at the time and in fact sought credit for the fact he would be paying reparation.
13 Sentencing Act, s 33(2).
14 R v Bailey CA306/03, 10 May 2004 at [25].
15 Crosland v Police [2012] NZHC 1929 at [8].
16 Police v Williamson, above n 5, at [8].
[20]The 2018 pre-sentence report stated:
He went on to say that he could not see a way out of his debt as he was only in receipt of a benefit, and after paying his rent and weekly expenses he had no [disposable] income.
[21] Reparation in the sum of $2,080 was imposed by Judge Orchard for the 2018 convictions.17 There, her Honour ordered the payments to be by way of instalment upon release from prison. She then said if “you are unable to make those payments when you are released from prison… you can see the registrar to make arrangements.”18
[22] It does not appear, in either of these sentencing decisions, there were details of Mr Williamson’s financial position before the Court. Nor does it appear reparation reports were prepared.
[23] The current evidence before this Court suggests Mr Williamson is struggling financially. Mr Williamson provides evidence that he is receiving Work and Income payments of $326.69. After deductions are made, including Ministry of Justice fines, Mr Williamson receives a total payment of $272.19. He pays $270 per week as a contribution towards rent and for basic living expenses.
[24] He is currently paying an account for medical expenses in instalments, on occasions for as little as $1 but on a few occasions around $19. He was declared bankrupt in July 2019.
[25] Attached to Mr Williamson’s notice of appeal was a fines summary dated 15 February 2021, recording that Mr Williamson’s outstanding fines are $10,100. This amount is supported by a memorandum by a CM O’Brien prepared for a fines hearing on 10 March 2021. It states Mr Williamson “keeps ringing the call centre to try to lower his payments without providing the necessary information as requested.”
[26] I consider there is evidence the reparation is causing Mr Williamson undue hardship. I also consider the reparation order made in 2018 was made without
17 Police v Williamson, above n 5, at [13].
18 At [14].
adequate information that Mr Williamson would be able to pay the reparation ordered within a realistic timeframe.
[27] I consider, in the particular circumstances of Mr Williamson’s case, there was an error in the Court not obtaining a reparation report in 2018.
Conclusion
[28] I allow the appeal and quash the order for reparation made in 2018 but, in substitution, vary the order that was made to reduce it to the amount that has been paid on account of such reparation up to the date of this judgment. Mr Williamson accordingly does not have to pay any further reparation on account of the order made in 2018.
[29] Leave to appeal the 2015 order for reparation is declined because there has already been an appeal to the High Court against that sentence.
[30] Mr Williamson can however apply to the District Court under s 38A of the Sentencing Act for an order that the order for reparation made in 2015, and confirmed by the High Court in 2016, be cancelled. That application could be made on the basis that he has been unable to obtain employment, is bankrupt and does not have the income and assets to pay the outstanding reparation. It will be for the District Court to consider such an application in light of all the information available to it.
Solicitors:
Raymond Donnelly & Co., Christchurch.
Copy to:
S J Williamson, Appellant.
0
6
0