HOFFMAN v R [2017] NZCA 151

HOFFMAN v R [2017] NZCA 151 [2 May 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA523/2016[2017] NZCA 151BETWEEN ZANE CHE HOFFMANAppellantAND THE QUEENRespondentHearing: 4 April 2017Court: Randerson, Clifford and Whata JJCounsel: D J More for AppellantZ R Johnston for RespondentJudgment: 2 May 2017 at 10.30amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)[1] Mr Hoffman was found guilty by a jury in the District Court on one charge of theft by a person in a special relationship. Mr Hoffman was sentenced by Judge Crosbie to three months' home detention and 150 hours' community work.Mr Hoffman was also ordered to pay reparation in the sum of $20,143.1[2] Mr Hoffman originally appealed his conviction and sentence of reparation. He did not challenge his sentence of three months' home detention and 150 hours'1 R v Hoffman [2016] NZDC 19419 at [30].community work. At the beginning of the hearing Mr Hoffman's appeal againstconviction was formally abandoned.[3] This appeal proceeded, therefore, as an appeal against Mr Hoffman'ssentence of reparation only.Facts[4] Mr Hoffman was employed as the manager of a Dunedin student bar. Duringone week, when the owner was away, the bar's computerised till recorded total salesof $55,034, including eftpos sales of $32,056.28. Those eftpos sales were paiddirectly to the bar's business bank account. The balance comprised cash sales, sothat at the end of the week there should have been $22,977.72 cash held at the business, or banked by Mr Hoffman. On the owner's return, there was only $1,135cash on hand and no cash amounts had been banked by Mr Hoffman. Taking account of concessions during Mr Hoffman's trial that approximately $2,000 could have been properly spent on bar expenses, the Crown's case was that Mr Hoffman had stolen the $20,143. The jury having found Mr Hoffman guilty, the Court ordered reparation in that amount. The Court did so, as it was entitled to, without ordering a reparation report.2Appeal[5] Mr Hoffman appealed his sentence of reparation on two grounds. He submitted that:(a) the reparation order was irregularly imposed, as the Judge did not identify the person to whom reparation was to be paid; and(b) this Court "cannot be satisfied that the amount of reparation ordered was correct" because it is not clear whether four of the normal till floats (of $500 per till) had been properly accounted for and because Mr Hoffman may have been owed wages which he had not been paid.2 Sentencing Act 2002, s 33.[6] Mr Hoffman requested that this Court make an order remitting his reparation sentence to the District Court for re-determination of the matters he raised on appeal.AnalysisAn irregular reparation order?[7] Section 32 of the Sentencing Act 2002 empowers courts to impose sentences of reparation where an offender has caused a person to suffer loss of or damage to property. Section 12 requires a court that is entitled to impose such an order to do so unless the imposition of that order would result in undue hardship for the offender. Mr Hoffman accepted that the reparation order here will not impose undue hardship on him.[8] Section 79(1)(a) of the Summary Proceedings Act 1957 defines the word"fine" to include any amount of money a person is obliged to pay under a sentenceof reparation. The provisions of pt 3 of the Summary Proceedings Act, regarding the enforcement of fines, accordingly apply to sentences of reparation. In particular, and as relevant here, where reparation is ordered:(a) The Registrar must give the defendant a notice of the "fine" stating,amongst other things, the amount of the fine, the date on or before which payment of the fine is to be made and the times and places at which payment of the fine may be made.3(b) The fine must be paid in one lump sum within the time allowed for the payment of fines generally (28 days), unless special payment conditions are imposed under s 36 of the Sentencing Act.4(c) If the fine is not paid as ordered, and a judge makes an order under s 88AE(1)(g) of the Summary Proceedings Act, the District Court is3 Summary Proceedings Act 1957, s 84(1) and (2)(a)–(c).4 Section 80.deemed to have made, in its civil jurisdiction, an order that the defendant pay the Registrar the total amount of the fine.5[9] Sections 37 and 38 of the Sentencing Act provide further:37 Copy of conditions of reparation to be given to person who suffered harm, loss, or damage(1) A copy of the conditions of a sentence of reparation must be given to the person who suffered the harm, loss, or damage.(2) Failure to give a copy of the conditions of the sentence in accordance with this section does not affect the validity of the proceedings in the court or of the sentence imposed by the court.38 Payment of sums to person who suffered harm, loss, or damage(1) Every sum payable under a sentence of reparation must be paid to the person who suffered the harm, loss, or damage, or, with that person's consent, to that person's insurer.(2) A sentence of reparation does not affect any right that the person who suffered the harm, loss, or damage has to recover by civil proceedings any damages in excess of the amount recovered under the sentence.[10] The scheme of the legislation is, therefore, that reparation is a fine for the purposes of the Summary Proceedings Act and is to be paid, and may be recovered, accordingly.[11] On that basis, it is clear that an offender pays reparation to the Department of Corrections, as they would pay a fine. It is the Department or, ultimately, the Court which is responsible for the payment of that reparation to the person entitled to receive that reparation. Section 86H of the Summary Proceedings Act, which relieves the Crown of liability for any error in applying payments of reparation pursuant to the priority provisions of ss 86E to 86G, reflects that scheme.[12] On that basis, the reparation order made by the Court was not irregular. Rather, in due course Mr Hoffman would be given a notice of fine, and the Court or the Department would communicate with the person entitled to receive that reparation.5 Section 88A.[13] At Mr Hoffman's trial, evidence for the prosecution was given by Mr Lye, who was either directly, or through a company, an owner of the bar in question. The fact that the Judge did not mention Mr Lye's name when making the reparation orderis, in our view, immaterial. In this case, he is the person to whom reparation is to be paid.[14] In practice, if there were any doubt about the person to whom reparation is to be paid the matter would be referred to the sentencing judge.6An erroneous reparation amount?[15] At sentencing:(a) The Judge had before him two sentence reports. Both advised the Judge it was understood that the amount of reparation had been accepted at $20,143, that Mr Hoffman had said he hoped to secure a loan to pay a lump sum and that he would otherwise need to arrange for payment by instalment.(b) Mr Hoffman's trial counsel (Mr Takas) confirmed to the Court thatMr Hoffman "accepts reparation of $20,143".[16] Notwithstanding, Mr Hoffman now submitted that he neither advised the probation officer he accepted the reparation figure, nor authorised his counsel to accept that figure. Mr Hoffman did not refer to this issue in his affidavit filed in support of his (now abandoned) appeal against conviction. While Mr More for Mr Hoffman said that was his omission, not Mr Hoffman's, the fact remains thatthere is no affidavit on the issue of correctness of the reparation amount (whether on account of an alleged failure to properly account for the till floats or the entitlement to wages), or the intent of Mr Hoffman's instructions to Mr Takas. The affidavit filed by Mr Takas, in response to Mr Hoffman's challenge to his conviction, did notrefer to those matters either.6 We base that observation on the useful post-hearing memorandum on the statutory scheme and the Sentencing Act for payments of reparation and related matters provided to us at our request by counsel for Mr Hoffman and the Crown.[17] Nor was there any evidence at trial on the question of Mr Hoffman'sentitlement to wages or the significance of the till floats.[18] Thus, as Ms Johnston for the Crown submitted, there is again simply no evidence before us to support the submission that, by reference to either of these matters, the Judge erred on the quantification of reparation. In those circumstances, it would not be proper for us to take the question any further, and we do not do so.[19] As the point was not argued before us, we express no view on the separate question of whether, if such evidence had been available and if that evidence had established that Mr Hoffman was owed wages, that would have been a matter that should have been considered by the Judge when ordering reparation.Result[20] Mr Hoffman's appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent