WILLIAMSON v POLICE [2021] NZHC 999

WILLIAMSON v POLICE [2021] NZHC 999 [6 May 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-000033CRI-2021-409-000034[2021] NZHC 999BETWEEN STEVEN JOHN WILLIAMSON(AKA) BRIAN MAX PALMERAppellantAND NEW ZEALAND POLICERespondentHearing: 28 April 2021Appearances: Appellant in personJ E Lancaster for the RespondentJudgment: 6 May 2021JUDGMENT OF NATION JIntroduction[1] The appellant, Steven Williamson, was convicted and sentenced in 2015 and2018 for a number of dishonesty offences. In sentencing Mr Williamson, the DistrictCourt ordered him to pay reparation of $10,970.[2] He appeals on the basis the reparation orders are causing him undue hardship.Leave to appeal[3] Mr Williamson appeals out of time. The respondent did not object to leavebeing granted but noted there is an issue over the proposed appeal of the 2015reparation orders, because there has already been an appeal to the High Court againstthat sentence.1[4] I grant leave to appeal the reparation order made in 2018 but discuss reparationissues relating to both sentences.Background[5] On 12 February 2015, Mr Williamson was sentenced by Judge Couch to twoyears and seven months' imprisonment on five charges of obtaining or attempting toobtain by deception.2 In respect of reparation, the Judge said:3You will also be ordered to pay reparation on charging document ended 5131of $3895.00, on charging document ended 5130 reparation of $2495.00 andon charging document ended 5133 reparation of $2500.00.[6] Mr Williamson appealed that sentence. In the judgment of the High Court of23 March 2016, that sentence was reduced to two years and three months'imprisonment.4 There had been no challenge to the order for reparation. The HighCourt ordered that the orders for reparation in the District Court were to remain ineffect. Accordingly, the orders for reparation made in the District Court in 2015 havealready been the subject of an appeal.[7] On 31 May 2018, Mr Williamson was sentenced by Judge Orchard to 13months' and two weeks' imprisonment on three charges of using a document forpecuniary advantage.5 The offending occurred after Mr Williamson had been releasedfrom prison for the 2015 convictions. Her Honour said:6While I am going to make reparation orders in relation to the losses, thecomplainants are going to be waiting a long time, if indeed not forever, beforethey are going to be repaid you also have other fines and reparation to pay.[8] The Judge imposed reparation in the sum of $2,080 in respect of three charges.1 Williamson v Police [2016] NZHC 520.2 Police v Williamson [2015] NZDC 2348.3 At [8].4 Williamson v Police, above n 1.5 Police v Williamson [2018] NZDC 11269.6 At [7].SubmissionsAppellant's submissions[9] Mr Williamson asks the Court to give him a "clean slate" and quash thereparation orders. He says he has outstanding reparation of approximately $11,000with no prospect of repaying these funds. He says he has ongoing health issues whichrestrict his ability to obtain long term work.[10] Mr Williamson explained to the Court that he had been deported to NewZealand from Australia in 1998 and, once back in New Zealand, he had been regularlyinvolved in dishonesty offending. He accepted this offending would have caused harmto the various businesses he had defrauded. He expressed remorse and shame for hisoffending. His acknowledgements were consistent with Judge Orchard's descriptionof him in 2018 as having, since 1987, been an incorrigible, dishonest offender.[11] Mr Williamson must have been released from the 2018 sentence ofimprisonment at some point in 2019. To his credit, he has not been charged withfurther offending. He is now aged 61. Mr Williamson says he has finally turned awayfrom his dishonest offending and leads a simple but law-abiding life but struggles tomake ends meet. He has not been able to obtain employment, has various medicalproblems and survives on a benefit. He has no assets.Respondent's submissions[12] The respondent accepts, on the basis of the evidence filed by Mr Williamson,the reparation orders appear to be causing him undue hardship. However, it issubmitted this Court does not have sufficient information about Mr Williamson'sfinancial position and the amount of reparation already paid (if any), to determine ifany lesser quantum would be appropriate. Accordingly, the respondent submits thisCourt may allow the appeal and quash the reparation order, then remit the matter backto the District Court for reconsideration. The respondent notes an alternative avenuefor Mr Williamson is to apply for an order for cancellation under s 38A of theSentencing Act 2002.Appeal principles[13] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied there hasbeen an error in the imposition of the sentence and that a different sentence should beimposed.7 As the Court of Appeal mentioned in Tutakangahau v R quoting the lowercourt's decision, a "court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles".8 It is only appropriatefor this Court to intervene and substitute its own views if the sentence being appealedis "manifestly excessive" and not justified by the relevant sentencing principles.9DiscussionRelevant law[14] Section 12(1) of the Sentencing Act provides a court must impose a sentenceof reparation if it is lawfully entitled to do so: unless it is satisfied that the sentence would result in undue hardship forthe offender or that any other special circumstances would make itinappropriate.[15] If an offender has insufficient means to pay reparation the court may orderreparation for an amount that is less than the value of the loss, damage or harm.10 Ifthe court considers a sentence of reparation may be appropriate, it may order that areparation report be prepared.11 The report may enable the court to make anassessment of undue hardship under s 12, assess the offender's financial capacityunder s 35, and determine any conditions which ought to be imposed under s 36(1).127 Criminal Procedure Act 2011, ss 250(2) and 250(3).8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].9 Ripia v R [2011] NZCA 101 at [15].10 Sentencing Act, s 35(1)(a).11 Section 33(1).12 R v Wonnacott [2009] NZCA 414 at [20]; cited in Stewart v R [2018] NZCA 375 at [13].[16] A reparation report is not a mandatory requirement. The court may decline toseek a reparation report and impose a sentence of reparation without further enquiryif it is satisfied:13(a) as to the amount of reparation the offender should pay; or(b) the information referred to in the report is available through other means;or(c) in all the circumstances, the court considers a report is unnecessary.[17] The reparation to be paid should be realistic, taking into account the financialresources of the offender.14 While the Sentencing Act does not specify the maximumperiod over which reparation is to be paid, the general principle is a court "should notinvolve bonding the offender for very long periods".15The reparation orders[18] The 2015 pre-sentence report prepared for the District Court stated: Mr Williamson accepted the reparation sought by the victims of hisoffending, a total of $8,890 He is willing to pay reparation but stated thathe is not in a position to do so at this stage. If he is able to secure employmentin the future he stated a commitment to paying reparation then. Mr Williamsonis without income or savings. He reports a debt of around $15,000 to$20,000 Mr Williamson has no realisable assets.[19] In respect of the 2015 convictions, reparation in the sum of $8,890 wasimposed by Judge Couch.16 It does not appear that a reparation report was ordered.Nor is there mention of the conditions of repayment. The extract above from the pre-sentence report indicates Mr Williamson may not have had the financial capacity topay reparation at that time. Mr Williamson may however have indicated he anticipatedin the future having the means to pay reparation. He did not oppose the making of areparation order at the time and in fact sought credit for the fact he would be payingreparation.13 Sentencing Act, s 33(2).14 R v Bailey CA306/03, 10 May 2004 at [25].15 Crosland v Police [2012] NZHC 1929 at [8].16 Police v Williamson, above n 5, at [8].[20] The 2018 pre-sentence report stated:He went on to say that he could not see a way out of his debt as he was onlyin receipt of a benefit, and after paying his rent and weekly expenses he hadno [disposable] income.[21] Reparation in the sum of $2,080 was imposed by Judge Orchard for the 2018convictions.17 There, her Honour ordered the payments to be by way of instalmentupon release from prison. She then said if "you are unable to make those paymentswhen you are released from prison you can see the registrar to makearrangements."18[22] It does not appear, in either of these sentencing decisions, there were details ofMr Williamson's financial position before the Court. Nor does it appear reparationreports were prepared.[23] The current evidence before this Court suggests Mr Williamson is strugglingfinancially. Mr Williamson provides evidence that he is receiving Work and Incomepayments of $326.69. After deductions are made, including Ministry of Justice fines,Mr Williamson receives a total payment of $272.19. He pays $270 per week as acontribution towards rent and for basic living expenses.[24] He is currently paying an account for medical expenses in instalments, onoccasions for as little as $1 but on a few occasions around $19. He was declaredbankrupt in July 2019.[25] Attached to Mr Williamson's notice of appeal was a fines summary dated 15February 2021, recording that Mr Williamson's outstanding fines are $10,100. Thisamount is supported by a memorandum by a CM O'Brien prepared for a fines hearingon 10 March 2021. It states Mr Williamson "keeps ringing the call centre to try tolower his payments without providing the necessary information as requested."[26] I consider there is evidence the reparation is causing Mr Williamson unduehardship. I also consider the reparation order made in 2018 was made without17 Police v Williamson, above n 5, at [13].18 At [14].adequate information that Mr Williamson would be able to pay the reparation orderedwithin a realistic timeframe.[27] I consider, in the particular circumstances of Mr Williamson's case, there wasan error in the Court not obtaining a reparation report in 2018.Conclusion[28] I allow the appeal and quash the order for reparation made in 2018 but, insubstitution, vary the order that was made to reduce it to the amount that has been paidon account of such reparation up to the date of this judgment. Mr Williamsonaccordingly does not have to pay any further reparation on account of the order madein 2018.[29] Leave to appeal the 2015 order for reparation is declined because there hasalready been an appeal to the High Court against that sentence.[30] Mr Williamson can however apply to the District Court under s 38A of theSentencing Act for an order that the order for reparation made in 2015, and confirmedby the High Court in 2016, be cancelled. That application could be made on the basisthat he has been unable to obtain employment, is bankrupt and does not have theincome and assets to pay the outstanding reparation. It will be for the District Courtto consider such an application in light of all the information available to it.Solicitors:Raymond Donnelly & Co., Christchurch.Copy to:S J Williamson, Appellant.