TAYLOR v THE NEW ZEALAND POLICE [2020] NZHC 1344

TAYLOR v THE NEW ZEALAND POLICE [2020] NZHC 1344 [16 June 2020]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2020-443-9[2020] NZHC 1344BETWEEN MONIQUE ANNE TAYLORAppellantAND THE NEW ZEALAND POLICERespondentHearing: 3 June 2020Counsel: Ms Taylor in personG N MilneJudgment: 16 June 2020JUDGMENT OF CULL J[1] Ms Taylor appeals a reparation order made in the District Court in 2019, whenshe was discharged without conviction for two charges of wilful damage.1 She wasordered to pay $4,850.13 for damage to her former partner's car, $400 excess fordamage to the former partner's father's car and court costs of $130 on each charge.[2] Ms Taylor appeals, out of time, the reparation order of $4,850.13, on thegrounds that it is causing her undue hardship and/or her circumstances are exceptional,such that the order should not have been made.2 Ms Taylor accepts the $400 excesspayment and the court costs. In addition, Ms Taylor seeks cancellation of the sentenceof reparation under s 38A(1) of the Sentencing Act 2002 (the Act).1 New Zealand Police v Taylor [2019] NZDC 4125.2 Sentencing Act 2002, s 12.[3] This judgment deals first with whether reparation in the circumstances wasappropriate and secondly, the application under s 38A of the Act seeking cancellationof the reparation order.Background[4] Ms Taylor had been in a relationship her former partner for about 12 years,which ended nearly a year before the events occurred. There have been three reportedprevious family harm incidents between Ms Taylor and her former partner. Ms Taylorhas been diagnosed with post-traumatic stress disorder (PTSD) stemming from analleged assault by her former partner. Ms Taylor entered guilty pleas on the followingfact summary and has no relevant previous convictions.[5] On Monday 26 November 2018, Ms Taylor was at the address of her formerpartner and his parents. She had texted him during the day and when the messageswent unanswered she sent a slew of further messages over several hours, the contentsof which were negative towards him but not threatening. When he did not respond,she began calling his family and left abusive voice messages. Her former partner wentto his parents' address to make sure they were safe after Ms Taylor had called them.She arrived there shortly after. The summary of facts describes her as agitated andthat she screamed for him to come out of the house. She approached the front doorand started banging on it and tried to open it. When she could not get in, she movedaround the exterior of the house.[6] A neighbour tried to intervene but this enraged Ms Taylor further and shekicked a car parked in the driveway (her former partner's father's car), damaging thepanels. This resulted in the first charge of wilful damage.3 Another neighbour arrivedand was able to move Ms Taylor away from the car, but she went to another car on theroadside and started kicking it. This car belonged to her former partner. She kickedmost of the panels of this car, damaging them. This resulted in the second wilfuldamage charge.3 Summary Offences Act 1981, s 11(1)(a); maximum penalty three months' imprisonment or a$2,000 fine.[7] Due to the nature of Ms Taylor's behaviour leading up to the incident, thepolice requested a protection order be served on her under s 123B of the Act.Sentencing[8] Ms Taylor pleaded guilty to both charges of wilful damage. At sentencing on31 January 2019, after referring to a report from a registered clinical psychologist withwhom Ms Taylor had been working over the past year, the Judge granted Ms Taylor adischarge without conviction on both charges under s 106 of the Act.4 The Judge thenimposed reparation orders in respect of both cars, together with court costs.5 On thefirst charge, reparation for the excess on the damage to the car of $400 and court costsof $130 were imposed, payable to her former partner's father at $20 a week. On thesecond charge, reparation for the car of her former partner of $4,850.13 and court costsof $130 were imposed, payable to her former partner at $20 a week.6Approach on appeal[9] This appeal is brought under s 311 of the Criminal Procedure Act 2011, whichprovides that appeals against s 106(3) of the Act proceed as if they were an appealagainst sentence under s 250 of the Criminal Procedure Act. A notice of appeal orleave to apply for an appeal must be filed within 20 working days after the date of thesentence appealed against,7 unless the Court has extended the time allowed for filing.8An appeal against sentence is an appeal against a discretion. An appeal againstsentence must be allowed if the Court is satisfied that, for any reason, there is an errorin the sentence imposed and a different sentence should be imposed.9[10] On 3 March 2020, Ms Taylor filed a notice of appeal, over a year out of time,against the 31 January 2019 District Court ruling that she pay the reparation of$4,850.13 to her former partner. She seeks an extension of time on the grounds that4 New Zealand Police v Taylor [2019] NZDC 4125 at [2].5 At [3]-[4].6 The Judge also granted a protection order, which was quashed on appeal on jurisdictional grounds:Taylor v New Zealand Police [2019] NZHC 874 at [3].7 Criminal Procedure Act 2011, s 248(2).8 Section 248(3).9 Section 250(2); and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.she has only just discovered the amount of reparation can be appealed. Ms Taylor isself-represented.[11] Ms Taylor accepts the $400 payable to her former partner's father and the twocourt-imposed fines of $130 each. Her appeal against the reparation order of$4,850.13, payable to the victim at $20 a week, is on the grounds of s 12 of theSentencing Act. That section provides:(1) If a court is lawfully entitled under Part 2 to impose a sentence ororder of reparation, it must impose it unless it is satisfied that thesentence or order would result in undue hardship for the offender orthe dependants of the offender, or that any other special circumstanceswould make it inappropriate.[12] Ms Taylor gave evidence that due to her former partner's alleged abusiveactions during their relationship and her diagnosis of PTSD, she has been certifiedunfit to work and is therefore unable to make money. She says these background factsshould enable her to qualify for the "undue hardship" or "special circumstances"exceptions in s 12 of the Act, particularly because the order currently requires her togive to her former partner a portion of her weekly Work and Income benefit. She alsosays the amount of reparation of $4,850.13 is excessive, as the damaged vehicle isonly valued at about $1,500. Ms Taylor seeks the cancellation of reparation unders 38A of the Act.[13] The police oppose the appeal on the basis that the hardship experienced byMs Taylor as a result of the reparation order does not reach the level of "unduehardship" nor are her circumstances "special".Decision[14] There has been no opposition to Ms Taylor's application for leave to appealout of time, and I accordingly grant the extension. I will deal with the two issues onthis appeal:(a) Was the sentence of reparation appropriate in the circumstances?(b) In which court should a s 38A cancellation of reparation application bebrought?Was the sentence of reparation appropriate in the circumstances?[15] Section 106 of the Act enables a sentencing Judge to grant a discharge withoutconviction and allows the Judge to make an order for payment of any sum due to lossor damage of property through the offence. Section 106(3)(b)(i) provides:(3) A court discharging an offender under this section may –(a) (b) make any order for the payment of any sum that the court thinksfair and reasonable to compensate any person who, through, orby means of, the offence, has suffered –(i) loss of, or damage to, property; [16] Section 12 of the Act enables a sentencing Judge to impose "reparation" as partof a sentence:12 Reparation(1) If a court is lawfully entitled under Part 2 to impose a sentence ororder of reparation, it must impose it unless it is satisfied that thesentence or order would result in undue hardship for the offender orthe dependants of the offender, or that any other special circumstanceswould make it inappropriate.(2) A sentence of reparation may be imposed, in relation to any particularoffence, on its own or in addition to any other sentence.(3) If a court does not impose a sentence or order of reparation in a casewhere it is lawfully entitled to do so, it must give reasons for not doingso.(4) In this section, order of reparation means an order under section106(3)(b), 108(2)(b), or 110(3)(b).[17] I note that s 12(4) provides that an order under s 106(3)(b) is an order ofreparation under s 12.[18] Ms Milne submits for the Crown that the order for reparation was appropriate,and that the undue hardship or special circumstances exceptions are not met in thiscase.10 The approach of the Court in considering an appeal against an order ofreparation was canvassed by this Court in Hickman v R, as follows:11(a) Section 12(1) requires the Court to impose an order of reparation iflawfully entitled, unless satisfied that the order would result in unduehardship for the offender or that any other special circumstances wouldmake it inappropriate.(b) "Undue" hardship indicates something more than the ordinary conceptof hardship is intended, such as excessive hardship or hardship greaterthan the particular circumstances warrant.(c) Under s 33, the Court may ask that a reparation report be prepared toaddress the value of loss or damage to property as a result of theoffending, the financial capacity of the offender, the maximum amountthe offender is likely to be able to pay and the frequency and magnitudeof any payments.(d) A Court may decline to seek such a report and impose a sentence ofreparation without further inquiry if it is satisfied as to the amount ofreparation the offender should pay, or the type of information in areparation report is available through other means, or in all thecircumstances the Court considers that a report is unnecessary.(e) Under s 35(1), if an offender has insufficient means to pay the totalvalue of the loss, the Court may impose a sentence involving a loweramount of reparation or order payment by instalments.10 Hickman v R [2019] NZHC 3251; R v Thompson CA404/04, 19 October 2005; and Hunt v PoliceHC Wellington AP232/99, 29 September 1999.11 At [14]-[18].[19] As Woolford J observed in reference to a number of reparation sentences,appeals against a sentence of reparation imposed in the absence of a reparation reportare sometimes allowed where the amount of the order is significant, and the financialposition of the defendant was not established.12 In R v Bailey the Court of Appeal heldthat a reparation order must be set at a level which makes it realistic given the financialcircumstances of the person against whom it was made.13 As Woolford J said further,courts have often held that a reparation order requiring payment by instalmentscontinuing for more than five years is not appropriate.14 It is desirable that reparationorders do not bond debtors for many years to pay large sums by small weeklycontributions.[20] In R v Thompson, the Court of Appeal accepted that although there is no burdenof proof on the offender to establish hardship, there is an evidential onus to placebefore the Court evidence of their financial capacity if they are to avail themselves ofthe "undue hardship" exception.15 Undue hardship is to be assessed objectively.16[21] Ms Taylor was represented by Counsel on sentencing and, as the Crown notes,Ms Taylor accepted the summary of facts at the time she entered guilty pleas and aquote dated 28 November 2018 from a panel beater noting that the total cost to repairthe damage to her former partner's vehicle was $4850.13. It appears no issue wastaken with that quote at the time of Ms Taylor's sentencing and nor were her financialcircumstances before the Court. The Judge did not order a reparation report as itappears that the Court was satisfied as to the amount of reparation that the offendershould pay and did not consider that a report was necessary.17 I note that under s 35(1),if an offender has insufficient means to pay the total value of the loss, the Court mayimpose a sentence involving reparation for an amount less than the value of the lossor order payment by instalments.[22] The District Court Judge imposed a sentence for the full value of the quote anddirected that Ms Taylor pay it by instalments of $20 per week. For reasons which I12 At [19].13 R v Bailey CA 306/03, 10 May 2004 at [25], cited in Hickman v R, above n 10, at [19].14 At [19], citing Guinness v Police.15 R v Thompson, above n 10, at [15].16 Hunt v Police, above n 10, at 9.17 Sentencing Act 2002, s 33(2).explore below, it appears that payment of $20 per week would take just over five yearsto complete.[23] It appears that no case was made for Ms Taylor at the time of sentencing thatsuch a reparation order would result in undue hardship for Ms Taylor or that otherspecial circumstances should be taken into account to avoid the mandatoryrequirement under s 12(1) of the Act that the Court must impose a sentence ofreparation.[24] In making the reparation order, the District Court Judge accepted the quotedated 28 November 2018 of $4,850.13 for the repair of Ms Taylor's former partner'svehicle. Ms Taylor in her submissions has expressed her concern as to the reliabilityof this quote. She says it was obtained from a family friend of her former partner'sfamily. Ms Taylor advised the Court that she had asked the police to obtain two otherquotes when she faced her criminal charges, but this did not occur. She says that thevehicle has not been repaired, despite her payments of approximately $1,000 to date.Ms Taylor has also provided the Court with her research into the "car/jam" report onher former partner's car and compared it with the make, model and similar mileage ofa similar car on Trade Me. She says this revealed that the vehicle is worthapproximately $1,500 - $2,000 in value.[25] To these submissions, Ms Milne reminds the Court that s 106 of the Actprovides, that a Court, in discharging an offender without conviction, may make anorder for the payment of a sum money to compensate a person who has suffered lossor damage to property. On that basis, the Crown contend that the value of the property,such as the car, is irrelevant.[26] I find that a reparation order was appropriate in these circumstances. Inabsence of any evidence before the District Court of Ms Taylor's financial position orany alternative quotes, the Judge was required by s 12 to impose an order of reparationand did so on the evidence before the Court. Section 106 of the Act, as Ms Milnecorrectly points out, provides for an order for a compensatory payment but it must bea sum that the Court thinks fair and reasonable to compensate any person for their loss.[27] While the District Court Judge had no other measure of damage other than thequote of 28 November 2018, I express some reservation about the amount quoted if ithas been sourced from a family friend of Ms Taylor's former partner. However,without further comparative quotes, I am unable to find that it is inappropriate in thecircumstances. I therefore set to one side Ms Taylor's submissions on the car valueand the unfairness of the quote.[28] I add that the Judge was fully aware of the circumstances surrounding therelationship between Ms Taylor and her former partner so any special circumstancesthat arise in relation to the background of the offending was known to the Judge. Iagree with the Judge's assessment that these circumstances do not make an order ofreparation inappropriate in itself. It appears there has been a change of circumstancesbut this Court does not have the relevant information on which to find undue hardship.[29] I dismiss this ground of appeal. The order for reparation in the circumstanceswas appropriate.In which court should a s 38A cancellation of reparation application be brought?[30] In addition to the above ground, Ms Taylor seeks an order under s 38A of theAct cancelling the sentence of reparation to her former partner. For this hearing,Ms Taylor filed submissions on 3 March 2020, in which she set out her reasons forappeal and the significant financial hardship the reparation orders were causing her.At the time of filing these submissions, Ms Taylor had been certified by her doctor forpart-time work and her only income at the time was $215 per week. She had beenundertaking two and a half hours of work a day in return for accommodation inNorthland. She was able to rent her home, which enabled her to meet mortgageexpenses. However, Ms Taylor's circumstances changed on the cessation of theseasonal work in Northland and the lockdown measures under level four of theCOVID-19 response.[31] Ms Taylor returned to her home, where she stayed during lockdown. She nowreceives $465 per week from WINZ which meets her expenses, including mortgagerepayments, broadband, power and gas, insurance, petrol, food and rates as well aspayments for reparation. As a result of a recent accident, she has had a recurrence ofher PTSD and has been certified as unable to work.[32] The weekly budget of Ms Taylor's income and outgoings had not been updatedfor this Court hearing. On an approximation of the figures supplied on 3 March 2020,her outgoings, if they are still the same, greatly exceed her increased WINZ paymentof $465 per week. Without an updated weekly budget however, the figures were notable to be clarified precisely.[33] Given Ms Taylor's change of circumstances, a s 38A application is the moreappropriate avenue to seek either cancellation or a variation. However, s 38Aprescribes the jurisdiction for such applications to be made. Section 38A provides:38A Cancellation of sentence of reparation(1) A court may, on an application under subsection (2) or (3) oron its own initiative,—(a) cancel a sentence of reparation; or(b) cancel a sentence of reparation and substitute anyother sentence (including another sentence ofreparation) that could have been imposed on theoffender at the time when the offender was convictedof the offence for which the sentence was imposed.(2) An offender who is subject to a sentence of reparation or aRegistrar may apply in accordance with section 72 for anorder under subsection (1) on the ground that the reparation isunaffordable because the offender's financial position haschanged significantly since the sentence was imposed.(3) A Registrar may apply in accordance with section 72 for anorder under subsection (1) on the ground that the Registrarreasonably believes that the sentence is unenforceablebecause the offender provided false or misleading informationabout the offender's financial position that the court relied onin imposing the sentence or because of any other reason.(4) The court may make an order under subsection (1) (whetheron application or on its own initiative) only if—(a) the person to whom the offender is required to pay thereparation—(i) has been informed and has been given theopportunity to be heard about the matter; or(ii) is unable to be found despite reasonableefforts made by the Registrar; and(b) the court is satisfied that—(i) the ground in subsection (2) or (3) has beenestablished; and(ii) enforcement of the original sentence ofreparation under Part 3 of the SummaryProceedings Act 1957 (or, if applicable,under section 19 of the Crimes Act 1961) isunlikely to be effective.(5) If the court is considering a substitute sentence,—(a) the court must take the following matters intoaccount:(i) the amount of the original sentence ofreparation that has been paid and the amountoutstanding:(ii) any other sentences or orders imposed on theoffender for the offending for which theoriginal reparation was imposed and theextent to which the reparation was taken intoaccount in imposing those sentences ororders; and(b) if the offender provided false or misleadinginformation about the offender's financial position,the court may take the following matters into account:(i) the extent to which the information was falseor misleading:(ii) the offender's culpability in providing theinformation, including whether, in the court'sopinion, the offender intended to mislead thecourt.(6) If the court cancels a sentence of reparation, the amount ofreparation outstanding is deemed to be remitted from the datethe order is made or any other date that the court may specify.[34] Under s 38A(2) an application for cancellation must be made under s 72 of theAct. In accordance with s 72(1)(d), where a District Court Judge has passed sentence,the application must be made to that Court. In this case therefore, an application forcancellation of a reparation order must be made to the District Court where sentencingoccurred.[35] As I read the section therefore, Ms Taylor's application for cancellation of thereparation order should be made either by herself or through the Registrar to theDistrict Court at New Plymouth. In this way, the Court can then be appraised ofMs Taylor's change of circumstances with all of the relevant financial details. Further,Ms Taylor's former partner must be informed and given an opportunity to be heardabout the matter under s 38A(4)(a)(i). The Court can then take into account thematters that are prescribed under s 38A subss (4) and (5). I am therefore directing thatMs Taylor's s 38A application to this Court is referred to the District Courtaccordingly.[36] There is one further matter that deserves mention. The order from theDistrict Court for reparation was at $20 per week. Ms Taylor informed the Court thatwhen she arranged the automatic payment through the Ministry of Justice, she wasinformed by a Ministry Official that she would have to pay $21.85 a week becausethere was a five-year limitation period on reparation payments and her payment wouldhave to be increased accordingly. This came as a surprise to Ms Milne, who quiteproperly acknowledged the irregularity of this arrangement and she too was unawarethat this practice was occurring.[37] I must register my concern that a Ministry Official has unilaterally varied aCourt Order for reparation at a different amount, apparently without the Court'ssanction or approval. Ms Taylor informed the Court that she had been paying $21.85per week for a year and if the District Court cancels this sentence of reparation orsubstitutes it, such amounts of reparation paid will need to be taken into account. Forfuture purposes however, this unilateral variation practice of court orders by theMinistry, if it is continuing, needs to be curtailed.Result[38] The application for leave to appeal out of time is granted.[39] The appeal is dismissed.[40] Ms Taylor's s 38A application for cancellation of the reparation order isreferred to the District Court for determination.Cull JSolicitor:Crown Solicitor, New Plymouth