Butt v Police

[2021] NZHC 179

IN THE HIGH COURT OF NEW ZEALAND

Round th REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000171

[2021] NZHC 179

BETWEEN

CARL ANDREW BUTT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

On the papers

Appearances:

J A A North for Appellant

J H Whitcombe for Respondent

Judgment:

16 February 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 16 February 2021 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Introduction

[1]        The appellant, Mr Butt, pleaded guilty to unlawfully taking a motor vehicle. He was sentenced to 140 hours’ community work and ordered to pay reparation of

$11,000.1 He now appeals his sentence on the basis the amount of reparation imposed

was excessive.

1      Police v Butt [2020] NZDC 23874.

BUTT v NEW ZEALAND POLICE [2021] NZHC 179 [16 February 2021]

Background

[2]        When Mr Butt pleaded guilty to the charge, he disputed the value of the vehicle, which was put at $11,475. While this was set down for a disputed facts hearing, the appellant did not attend that hearing and Mr Butt accepts that he has “foregone his chance to argue its legitimacy”.

[3]However, he says the amount ordered, being $11,000 paid at the current rate of

$20 per week, would take 550 weeks to pay, or approximately 10 and a half years, and this was not taken into account when the reparation amount and the overall repayment schedule was fixed. On behalf of Mr Butt, it is submitted that a 10 and a half year repayment schedule is excessive and is contrary to the principle that an order for reparation should not be made if the amount ordered cannot be paid within a reasonable timeframe.2 In that regard he says that the Court usually takes the approach of capping reparation at a five year limit to avoid an excessive repayment period.

[4]        Counsel for Mr Butt also submits that, while the Court retains a discretion as to whether or not a reparation report should be directed before making an order for reparation, appellate Courts have found error when a sentencing judge has failed to direct preparation of a report before making a significant order for reparation.3 Furthermore, as Duffy J stated in Moshiem v Police, if a sentencing judge decides not to obtain a report they should state in their sentencing notes:4

(a)the reasons for dispensing with a report; and

(b)the information relied upon to support the amount and conditions of any reparation order that is made.

[5]        Unless reasons of this nature are given, it is not possible for an appellate court to know if there was a proper basis for dispensing with ordering the reparation report.

2      R v Pender [2007] NZCA 465 at [15]; R v Bailey CA306/03, 10 May 2004 at [25].

3      Haa v Police HC Rotorua CRI-2005-463-91, 22 November 2005 at [13].

4      Moshiem v Police HC Auckland CRI-2010-404-160, 30 July 2010 at [34].

Discussion

[6]        The ability to impose an order of reparation is provided for in the Sentencing Act 2002 (the Act). Section 12(1) of the Act provides:

If a court is lawfully entitled … to impose a sentence or order of reparation, it must impose it unless it is satisfied that the sentence or order would result in undue hardship for the offender or the dependants of the offender, or that any other special circumstance would make it inappropriate.

[7]Section 32 of the Act provides:

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 –

(a)loss of or damage to property; or

(b)emotional harm; or

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

[8]An order for reparation may be combined with any other sentence.5

[9]        If a sentencing judge considers that an order for reparation may be appropriate, the judge may ask for a reparation report.6 However, this is not a mandatory requirement and the judge need not seek such a report if the judge is satisfied that one of the following conditions of s 33(2) of the Act are met:

(a)the court is satisfied as to the amount of reparation that the offender should pay; or

(b)the type of information referred to in a reparation report is available through other means (including, without limitation, a declaration made following a direction under section 41); or

(c)in all the circumstances the court considers that a report is unnecessary.

[10]Section 35 of the Act provides:

(1)If the offender has insufficient means to pay the total value of the loss, damage, or harm, the court may sentence the offender to make –

5      Sentencing Act 2002, s 12(2).

6      Section 33(1).

(a)reparation for any amount that is less than the value of the loss, damage, or harm; or

(b)payment by instalments in respect of the loss, damage or harm; or

(c)both (a) and (b).

[11]      In the present case, without information about the appellant and his financial circumstances, I am unable to determine what level of payment, or size of payment instalments, would be appropriate. I accept though, that a reparation order which will take 10 and a half years to repay appears, on its face, manifestly excessive, and likely to cause undue hardship in terms of s 12(1).

Outcome

[12]Accordingly, the appeal is allowed.

[13]The sentence of reparation is quashed.

[14]      The matter is remitted back to the District Court for the issue of reparation to be reconsidered. I also order that a reparation report under s 33 of the Act is to be prepared for the purpose of sentencing in the District Court.

Solicitors:

Raymond Donnelly & Co., Christchurch

Copy To:
J A A North, Barrister, Christchurch