KEMPSON v NZ POLICE [2021] NZHC 716

KEMPSON v NZ POLICE [2021] NZHC 716 [23 March 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2021-481-11[2021] NZHC 716BETWEEN DAMIAN KLAUD DOUGLAS BENNETKEMPSONAppellantAND NEW ZEALAND POLICERespondentHearing: 23 March 2021Counsel: E Smith and Z S Meehan for AppellantN Azam for CrownJudgment: 23 March 2021ORAL JUDGMENT OF GRICE J[1] This is an appeal against a sentence for reparation of $25,000. The appeal isbased on the grounds that it is manifestly excessive.[2] Mr Kempson pleaded guilty to driving while suspended and careless driving.He was driving while on a learner's licence with passengers in the car at a time whenhe was suspended from driving for three months due to excessive demerit points.[3] According to the summary of facts, Mr Kempson turned a hairpin corner atexcessive speed and crashed into a train control unit. Mr Kempson said that a carcrossed the centre of the line leaving him with no choice but to crash. No one wasinjured. I take the basis of the facts as those set out in the summary of facts and putto one side Mr Kempson's explanation which appears to go more to a defence ratherthan to a reparation issue.[4] According to KiwiRail, the damage caused to the unit amounted to$151,479.30. The police sought this amount in reparation at the District Court.[5] The appellant was discharged without conviction. The Judge disqualified himfrom holding or obtaining a driver's licence for six months and ordered him to payreparation. It is common ground that the reparations were ordered to be paid at $20per week although that was not captured in the Judge's note of his decision on thecourt file.[6] The appellant appeals only in relation to the reparation order and as I havenoted, the sentencing notes were brief, they ran to three lines. The law in relation toappeals indicates that an appeal against sentence is an appeal against the exercise of adiscretion. Under s 250 of the Criminal Procedure Act the Court must allow an appealif for any reason there is an error in the sentence imposed on conviction and a differentsentence should be imposed. Although that section does not refer to manifestlyexcessive, that is the longstanding basis for the Court to interfere on an appeal. Theappellate court should not tinker with an end sentence if it is within range, and I referto Tutakangahau v R1 as well as Ripia v R2 in support of that proposition.[7] Under s 251 of the Act, if the Court allows an appeal it must:(a) set aside the sentence and impose another sentence whether more orless severe that it considers appropriate; or(b) vary the sentence or any part of it or any condition; or(c) remit the sentence to the court that imposed it and direct that court takeany action described in the above paragraph (a) or (b) as specified bythe first appeal court.[8] The focus in any appeal is on the sentence imposed and not the process adoptedto reach that end sentence.31 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].2 Ripia v R [2011] NZCA 101, at [15].3 Tutakangahau v R, above n 1, at [36].Reparation[9] Reparation is recognised as a purpose of sentencing.4 As in the situation here,when an offender is discharged without conviction, the Court is still entitled to orderpayment of any sum that it thinks is fair and reasonable to compensate the person whothrough by means of the offence has suffered loss or damage to property.5[10] It provides a simple and speedy means of compensating those who suffer lossfrom criminal activities.6 The financial capacity of the offender will be relevant ands 35 of the Sentencing Act states:7(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–(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] The amount of a reparation order must therefore factor in the financial meansof the offender. The judge must have a realistic measure of confidence that paymentor reparation is able to be made.8 Future earning capacity can also be taken intoaccount.9 Although the Sentencing Act does not specify a maximum period forpayment of instalments of reparation, the Courts have made it clear that large sumsover long periods of time are simply not appropriate.104 Sentencing Act 2002, s 7(1)(d).5 Sentencing Act 2002, s 106(3)(b).6 R v O'Rourke [1990] 1 NZLR 155 (CA).7 See Sentencing Act 2002, s 106(3A).8 Fannin v R [2016] NZHC 168; citing R v Pender [2007] NZCA 465 at [15].9 Fannin v R [2016] NZHC 168 at [21].10 Taua v Police HC New Plymouth CRI-2009-043-22, 22 September 2009, at [7], citing R v Rollo[1981] 2 NZLR 667 and R v Belmont CA345/96, 20 February 1997.[12] Sums paid over a period in excess of five years are generally regarded asexcessive,11 although there have been instances of sums being paid over longer periodswhich have been upheld.12[13] The Crown has responsibly acknowledged that the reparation here is excessive.Both parties have agreed on the principles in relation to reparation. The appellant hasalso referred to a number of other decisions Lawrence v Police,13 R v Bailey14 and R vDonaldson15 as examples where large amounts of reparations were reduced for beingmanifestly excessive and it was unrealistic to expect the defendant to pay.16 TheCrown also referred to the Court of Appeal recent decision in R v Wonnacott.17 In thatcase, the Court of Appeal quashed the reparation and remitted the matter back to theDistrict Court for a report. The circumstances of that decision were that the judge hadlittle information, including not reliable information, on the valuation of the propertyinvolved. In a further decision referred to by counsel of Story v R,18 while the DistrictCourt Judge had not had a report on reparation, he had ordered payment of $5,000 toeach of the victims. The Court of Appeal had no difficulty in view of Mr Story'scontinued desire to make payments in quashing the amounts of reparation ordered inthe District Court and reducing the amount to $500 in relation to each victim withpayments at the rate of $10 per week.[14] In this case, Ms Smith submitted that the Court of Appeal decision in R vWonnacott could be distinguished because in that case there was insufficientinformation before the Court of Appeal. Whereas, in this case, there is no contestabout the value of the property and the District Court appears to have accepted the factthat Mr Kempson could only pay $20 per week. While there was only an unswornaffidavit before the Court, Ms Smith has submitted that she had gone through theaffidavit with Mr Kempson before the hearing and it was only unsworn because there11 R v Bailey CA306/03, 10 May 2004.12 In R v Vallily CA251/04, 10 November 2004 and R v Creek CA199/06, 7 August 2006, thereparation payments would take eight years and nine and a half years to pay off, respectively.13 Lawrence v Police [2019] NZHC 916.14 R v Bailey, above n 11.15 R v Donaldson CA227/06 2 October 2006.16 The appellate courts reduced the reparation orders, respectively, from $94,145.67 to $13,000 at$50 per week; from $17,840 to $3,000 at $20 per week; and from $21,508.99 and $22,694.26 to$10,000 and $6,000 at $50 per week for co-defendants.17 R v Wonnacott [2009] NZCA 414.18 Story v R [2012] NZCA 98 at [23]. In that cased, the total award for reparations was $10,000.was insufficient time to have the affidavit sworn before it was dealt with by the Judge.In addition, Ms Smith noted that Mr Kempson is presently in receipt of legal aid.[15] At the time of the hearing, Mr Kempson was in receipt of a Jobseeker SupportBenefit. He has now moved home to live with his parents in Otago. Ms Smith updatedMr Smith's present circumstances. It appears that he is in a stand-down period for thebenefit but has reapplied for it. At present he is listed as a temp with an agency buthas not obtained any employment and is waiting for his benefit to be restarted. He is19 years of age and he is engaged with an organisation called Youth Inspire which isassisting him to find employment. He has also sat and gained his restricted drivinglicence according to his unsworn affidavit. Counsel submits that he should payapproximately $20 per week in the District Court. Ms Smith had made the submissionin the District Court that the reparation should be in the vicinity of $5,000 howevershe has modified that submission in this court to suggest that reparation should bearound $2000-$3000 with $5,000 being at the upper end. Depending on the figure,that range indicates two to five years to pay off the reparation.[16] Mr Azam for the Crown agrees that the reparation order was manifestlyexcessive. The point of difference he has with Mr Kempson is that Mr Azam says thematter should be remitted to the District Court for reconsideration following areparation report. He submits that there is inadequate information before the Court toestablish the appellant's financial capabilities and points to the unsworn affidavit. Inaddition, there are some inconsistencies in relation to the affidavit as that says he canpay $10 per week although the submissions had been that he could realistically pay$20 a week.[17] In essence, the Crown's position is that in the absence of any information areparation report should be ordered under s 34 of the Sentencing Act. In support ofthat submission he referred to the comments in Story v R in which the Court of Appealsaid:"While such a report might only have confirmed the obvious, we consider oneshould have been obtained before orders of this size were made. At the leastthe report may have served to focus everyone on what was achievable."[18] As I have noted, in that decision the Court of Appeal in fact quashed and resetthe reparation amount.[19] In my view, the order for $25,000 to be paid in $20 instalments was manifestlyexcessive and would cause undue hardship. It would take over 24 years to pay it off.The appellant is only 19 years of age and the nature of the offending is relevant, it wasdriving. It was not any type of fraud or other financial misdemeanour which mightattract a greater reparation amount. I take into account that Mr Kempson has not foundwork at present but is looking, and that nevertheless he is willing to pay reparation at$20 per week. He will be soon entitled to a benefit in which case as I understand itfrom Ms Smith, the reparation will be taken direct from the benefit.[20] I accept Mr Azam's submission that the precise circumstances of the financialposition of Mr Kempson are not clear. It would have been better if the affidavit hadbeen sworn. The Judge did apparently rely on the unsworn affidavit, Mr Kempsonwas also present in the District Court so if the Judge had had any concerns about theinformation no doubt he would have addressed them to Mr Kempson. Ms Smith hasalso given the Court an update on Mr Kempson's present circumstances which do notappear to have changed significantly. I consider that there is sufficient informationupon which I can rely on today in order to make any further reparation order.[21] In the circumstances I consider that the present reparation order should be setaside and substituted with a reparation award of $3,000 to be paid in weeklyinstalments of $20 per week. This takes into account Mr Kempson's presentcircumstances and the fact he is currently looking for work but will be in receipt of abenefit. It gives the Court some confidence that this will be paid off in three years.[22] In view of those circumstances, I quash the reparation order made by theDistrict Court and I make an order for reparation of $3,000 to be paid in weeklyinstalments of $20 per week. I do this despite the Crown's submission the mattershould be referred back for a consideration report. I consider I have sufficientinformation to rely on to make the order and that it is a much more efficient use of theCourt's and the parties' time and resources for that to be dealt with now rather thanremitting it back to the District Court.[23] The appeal is allowed and the order for reparation of $25,000 is quashed. Anorder is made instead of reparation of $3,000 to be paid in weekly instalments of $20per week._________________________Grice JSolicitors:Luke Cunningham Clere, Wellington, for AppellantPublic Defence Service, Wellington, for Respondent