BOAG v NEW ZEALAND POLICE [2019] NZHC 3097

BOAG v NEW ZEALAND POLICE [2019] NZHC 3097 [26 November 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-0362[2019] NZHC 3097BETWEEN DION WARRICK BOAGAppellantAND NEW ZEALAND POLICERespondentDate of hearing: 26 November 2019Appearances: J F Mather for the appellantA G Wiltshire for the respondentDate of judgment: 26 November 2019JUDGMENT OF JAGOSE JThe judgment was delivered by me on 26 November2019 at 4.00pm.Registrar/Deputy RegistrarSolicitors/Counsel:John Mather Barrister, AucklandMeredith Connell, Auckland[1] Dion Boag was sentenced to five months' home detention and reparationpayments of $2000 and $37,650 by Judge S J Maude in the District Court at NorthShore on 8 May 2019,1 after pleading guilty to being a person in charge of a motorvehicle causing bodily injury while driving with excess breath alcohol.2 Mr Boag'sappeal is brought on the sole ground the latter reparation order is manifestly excessive.Application out of time[2] Mr Boag requires an extension of time to appeal,3 as his appeal was not filedwithin 20 working days of sentence.4 Mr Boag's appeal was filed on 12 August 2019,over three months after his 8 May 2019 sentencing. Extensions of time are granted inthe interests of justice.5 Such applications "routinely reduce to two heads": first, whywas the appeal filed late; and second, what (if any) merit may the appeal have?6[3] Mr Boag explains he was unaware at sentencing the larger reparation order wasmade, as it was contained in an addendum to the notes of the Judge's sentencingremarks, only obtained on 12 August 2019. The notice of appeal was filed that day.The delay is short and explained.7 Police take no issue with the appeal being filed outof time. The contested reparation payment offers grounds for challenge. I will grantthe extension of time.Background—offending[4] On 23 March 2018 at approximately 11.50 pm, Mr Boag was driving north onMatakana Valley Road with the victim, who owned a construction company. The roadhas a speed limit of 100 kilometres per hour and was wet at the time. Mr Boag entereda left-hand corner at speed, causing him to lose control. The car ran into a dirtembankment, overturning before landing back on its wheels.1 Police v Boag [2019] NZDC 8645.2 Land Transport Act 1998, s 61(1)(b). Maximum penalty is five years' imprisonment or a fine notexceeding $20,000.3 Criminal Procedure Act 2011, s 248(4).4 Section 248(2).5 Mikus v R [2011] NZCA 298 at [26], citing R v Knight [1998] 1 NZLR 583 (CA) at 587.6 R v Slavich [2008] NZCA 116 at [14]; see also Mikus v R, above n 5, at [26].7 See R v Lee [2006] 3 NZLR 42 (CA) at [115].[5] The victim was not wearing a seatbelt. He was flung from the vehicle when itoverturned. Mr Boag was trapped in the driver's seat until emergency services arrived.Both were airlifted to Auckland Hospital. Mr Boag's blood alcohol level was 151milligrams of alcohol per 100 millilitres of blood.8[6] The victim suffered a deep laceration to the right side of his scalp, resulting insubstantial blood loss and a linear fracture to the right side of his skull. He has ongoingpain management issues and loss of memory. He is lucky to have survived at all; hewent into cardiac arrest ten times, and lacked any pulse for nearly a quarter-hour.—District Court decision[7] The Judge adopted a starting point of 18 months' imprisonment. There wereno aggravating factors, Mr Boag's blood alcohol level being implicit in the chargeitself. The Judge declined to uplift for Mr Boag's two previous convictions, given theywere historical. He gave discounts of one month for remorse, two months forMr Boag's rehabilitative efforts, and a 25 per cent discount for Mr Boag's early guiltyplea. This resulted in a sentence of ten and a half months' imprisonment. The Judgeconsidered home detention to be the most appropriate sentence. An end sentence offive months' home detention was imposed. Mr Boag was disqualified from driving for20 months.[8] With Mr Boag's agreement, the Judge ordered Mr Boag to pay $2000 by wayof emotional harm reparation. However, in the addendum to the notes of his sentencingremarks, the Judge recorded he had omitted to order Mr Boag pay expenses related tothe blood alcohol testing (these totalled $211.99). More significantly, the Judge alsothought it appropriate he order reparation for the victim's loss of income, as calculatedin a police reparation schedule (which is not before me).[9] Ultimately, the Judge considered it was "a matter for Mr Boag, in consultationwith the registry, to negotiate how [the reparation] is to be paid and the registry are to8 The legal limit is 50 milligrams of alcohol per 100 millilitres of blood; Land Transport Act 1998,s 11(b).take into account his circumstances".9 The Judge recognised the reparation sum waslarge, and may be "paid incredibly slowly".10Approach to appeals against sentence[10] I must allow the appeal only if satisfied there is an error in the sentence, and adifferent sentence should be imposed.11 In any other case, I must dismiss the appeal.12The approach previously taken by courts on sentencing appeals continues to apply,13so that the measure of error is the sentence be "manifestly excessive" – a principle"well-engrained" in this Court's approach to sentence appeals.14 I will not intervenewhere the sentence is within the range that can properly be justified by acceptedsentencing principles. Whether 'manifestly excessive' is to be assessed in terms of thesentence given, rather than the process by which it is reached.15Issue on appeal[11] Mr Boag appeals the imposition of the loss of income reparation order on thebasis it is manifestly excessive. Specifically, his counsel, John Mather, says the Judgeerred in failing to order a reparation report, failing to consider Mr Boag's financialcapacity, concluding the victim suffered a loss of $37,650.24, and failing to givereasons for the imposition of both emotional harm and loss of income reparationorders. He proposes a reparation report be ordered, and the matter be remitted to theDistrict Court for sentence. Alternatively, I may determine the issue of reparation.Discussion[12] Reparation orders, where available, must be imposed unless the sentencingcourt is satisfied the order would "result in undue hardship for the offender or thedependants of the offender, or that any other special circumstances would make it9 Police v Boag, above n 1, at [33].10 At [33].11 Criminal Procedure Act 2011, s 250(2).12 Section 250(3).13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].14 At [33] and [35].15 Ripia v R [2011] NZCA 101 at [15].inappropriate".16 If appropriate, the court may order a reparation report be preparedto address the value of loss or damage and the offender's capacity to pay.17 The courtalso may decline to seek a report if it otherwise can determine the amount to be paid.18[13] Reparation reports obviously are useful.19 The limited circumstances in whicha court may decline to seek a report suggests they otherwise should be ordered bydefault where the sentence may be appropriate. Appeals against a sentence ofreparation imposed in the absence of a reparation report often are allowed where theamount of the order is significant, and insufficient details of the offender's financialposition were before the court.20 Where there is evidence the offender may lack meansto make payment, it is unwise to order reparation without first obtaining a reparationreport.21[14] Little information about Mr Boag's financial circumstances was before theJudge. The Judge was aware Mr Boag was unemployed but plainly contemplated, asthe probation officer would allow, he may be able to find employment while subjectto his sentence of home detention. But Mr Boag says he still is incapable ofemployment given his medical situation (although the pre-sentence report stated hehad medical clearance to work some very limited hours). He was adjudicated bankruptat the time of sentencing. He says he has debts owing to Work and Income NewZealand, Legal Aid, and to his mother. He appears to have little financial capacity topay reparation in the amount ordered. The Judge also was aware Mr Boag may havedifficulties in meeting the reparation payments. He considered that could be workedout with the registry. But it was for the Judge to determine that.22 It is not clear whatbasis the Judge could have had to decline to order a reparation report.16 Sentencing Act 2002, s 12(1). 'Undue' requires something "more than the ordinary concept ofhardship such as excessive hardship or hardship greater than the particular circumstanceswarrant"; see Stewart v R [2018] NZCA 375 at [11], citing Hunt v Police HC WellingtonAP232/99, 29 September 1999 at 7.17 Sentencing Act 2002, s 33(1).18 Section 33(2). See also R v Quayle CA39/03, 3 July 2003 at [22].19 R v Wonnacott [2009] NZCA 414 at [20]; and Stewart v R, above n 16, at [13].20 See R v Wonnacott, above n 19; Stewart v R, above n 16; Story v R [2012] NZCA 98; Hunn vPolice [2019] NZHC 1975; Martinson v Police [2017] NZHC 2830; and Alexander v Police[2015] NZHC 2730.21 R v Quayle, above n 18, at [22].22 R v Wonnacott, above n 19, at [21].[15] Absent a reparation report, even with Mr Boag's own assessment of hisfinancial circumstances, I cannot substitute for the Judge's order. I have no evidenceof qualifying loss or damage beyond the victim's estimate of "costs & loss of incometo be over $100,000.00". And a reparation report would offer an independentassessment of Mr Boag's financial means; his affidavit alone is insufficient.[16] The proper course is to allow the appeal, remit the matter back to the DistrictCourt, and order a reparation report.23 The reparation report will allow that Court toassess if a reparation order for loss of income would result in undue hardship onMr Boag, determine his financial means, and assess the appropriate conditions forreparation (such as ordering the payments be made in instalments).24Result[17] Time to appeal is extended to 12 August 2019.[18] The appeal is allowed. The sentence of reparation is quashed.[19] The issue is remitted to the District Court for reconsideration if a sentence ofreparation should be imposed and, if so, the conditions of any order.[20] I order a reparation report under s 33 of the Sentencing Act 2002 be preparedfor the purpose of sentencing in the District Court.—Jagose J23 Following Stewart v R, above n 16.24 Sentencing Act 2002, s 35(1).