HUNN v POLICE [2019] NZHC 1975

HUNN v POLICE [2019] NZHC 1975 [13 August 2019]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2019-488-000017[2019] NZHC 1975IN THE MATTER OF an appeal against order to pay reparationBETWEEN CHRISTINE MAUREEN HUNNAppellantAND NEW ZEALAND POLICERespondentHearing: 12 August 2019Appearances: C M Hunn (Self-represented Appellant) in PersonC S Taylor for the RespondentJudgment: 13 August 2019JUDGMENT OF EDWARDS JThis judgment was delivered by me on 13 August 2019 at 4.30 pm.Registrar/Deputy RegistrarSolicitors: Marsden Woods Inskip Smith (Office of the Crown Solicitor), WhangareiCopy To: C M Hunn, Hikurangi[1] Ms Hunn was convicted on one charge of wilful damage following a judge-alone trial by Judge Spear in the Whangarei District Court.1 Ms Hunn kicked herformer partner's car, a 1993 maroon Jaguar Sovereign, several times. Judge Spearsentenced her to nine months' supervision and ordered her to pay reparation of$4,256.15. Ms Hunn now appeals that sentence.The offending[2] The charges arise out of events on the morning of 2 January 2019. Ms Hunnwent to the home of her ex-partner's new partner and had a discussion with her thatmorning. Ms Hunn asked to see her former partner, and some sort of argument ensued.[3] Ms Hunn retreated down the steps of the house to where her former partner'scar was parked. She yelled abuse at her former partner, who had by this time appearedin the doorway, and kicked his car a number of times. She caused two large dents, andpossibly some smaller ones.District Court sentence[4] Ms Hunn pleaded not guilty but admitted to kicking the car. The Judge foundthat Ms Hunn had the required intent to cause the damage and convicted her on thecharge in an oral judgment delivered the same day.[5] The Judge proceeded to sentencing immediately after entering conviction.There is no written sentencing judgment, but there is a transcript of the sentencingdiscussion. There was no reparation report before the Judge, and the Judge did notadjourn the sentencing to order one. However, he did make enquiries of Ms Hunn'scounsel as to her ability to pay before making the reparation order.[6] The Judge then sentenced Ms Hunn to nine months' supervision and orderedher to pay reparation in the sum of $4,256.15 at a rate to be fixed by Collections. Thereparation sum was based on a quote dated 7 January 2019 from a panel beater. Thatinvoice was attached to a reparation schedule provided by the police.1 New Zealand Police v Hunn [2019] NZDC 11768.[7] Ms Hunn says that she did not receive a copy of this quote until after thesentencing hearing. She did not, therefore, have an opportunity to dispute the quantumof the cost of repairs. She has since obtained another quote dated 6 August 2019,which estimates the cost of repairs at $2,274.13. That quote was attached to anaffidavit filed shortly before the appeal hearing.[8] Although the reparation schedule was clearly before the District Court,Mr Taylor (counsel for the respondent) accepts that he cannot show that the originalquote was in fact sent to Ms Hunn prior to the hearing. There is no objection to thesecond quote being received in evidence, and Ms Hunn's affidavit for the appeal isadmitted accordingly.Analysis[9] Section 33 of the Sentencing Act governs reparation reports. Under s 33(2) acourt may decline to seek such a report without further inquiry if:(a) the court is satisfied as to the amount of reparation that the offendershould pay; or(b) the type of information referred to in a reparation report is availablethrough other means (including, without limitation, a declarationmade following a direction under section 41); or(c) in all the circumstances the court considers that a report isunnecessary.[10] The Judge clearly considered he had all the necessary information before himto make a reparation order. However, the new invoice obtained by Ms Hunn suggeststhat the information he was relying on in the absence of a reparation report may havebeen flawed. There is accordingly a real risk that the quantum of reparation wasmanifestly excessive.[11] In the circumstances, I consider the sentence of reparation ought to be quashed,and the matter referred back to the District Court for re-sentencing with the benefit ofa reparation report under s 33 of the Sentencing Act. That report may address the valueof the loss or damage to the car (s 33(1)(a)) in light of the different quotes, andMs Hunn's financial capacity to make reparation (s 33(1)(d)–(f)).[12] That just leaves the question of the nine months' supervision order imposed bythe Judge. Although the notice of appeal only focused on the quantum of reparation,Ms Hunn sought to challenge the supervision component of her sentence in her oralsubmissions on appeal. She considered such a sentence to be unduly harsh given thenature of the offending and her personal circumstances.[13] An offer to make reparation can reflect an offender's remorse and anacceptance of responsibility for their criminal conduct. Those factors are relevant tothe nature and length of the other components of a sentence. It is not clear from thematerial before the Court whether Ms Hunn had previously offered to pay for thedamage she caused to the car. I cannot, therefore, discount the possibility that re-assessment of the reparation order may have some impact on the nine months'supervision sentence imposed by the Judge.[14] In all the circumstances, I consider it preferable that the entire sentence beconsidered afresh, with the benefit of a reparation report and any other reports theDistrict Court Judge considers necessary to tailor the sentence to Ms Hunn's particularcircumstances.Result[15] Accordingly, I quash the sentence and remit it back to the District Court forreconsideration in light of a reparation report, and any other reports that the Judge mayconsider necessary.___________________Edwards J