THE QUEEN v RAYMOND KEITH FLEMING [1999] NZCA 26 (15 March 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca2/99

THE QUEEN

V

RAYMOND KEITH FLEMING

Hearing:	15 March 1999
Coram:	Richardson P Heron J Goddard J
Appearances:	M McKechnie for appellant A K Mobberley for Crown
Judgment:	15 March 1999

judgment of the court delivered by RICHARDSON P

[1] Raymond Keith Fleming was found guilty by a jury on three charges of using a document with intent to defraud.Following conviction he was sentenced to six months periodic detention and ordered to pay reparation in the sum of $10,288. Mr Fleming appeals against his sentence in respect of the reparation order only.

[2] In 1994 the appellant sustained a debilitating injury to his lungs as a result of his inhaling an agricultural chemical.Throughout the period from September 1994 to November 1996 he submitted medical certificates to the Accident Compensation Corporation stating that he was unfit to work; as a result he received a benefit from the Corporation.The appellant did, however, do some work on a part-time basis as a horse trainer and also in the running of his company, Mossgrove Holdings Limited, which subsequently ceased trading and is now insolvent.

[3] The appellant was charged with nine counts of using a document with intent to defraud contrary to s229A(b) of the Crimes Act 1961.After a trial in the District Court at Rotorua the appellant was found guilty by the jury of three counts relating to a 39 week period in the latter half of 1995 and the early part of 1996.During these months Mossgrove Holdings Limited enjoyed a considerable turnover and this may have led the jury to find the appellant guilty in respect of that period.The Judge's assessment on sentencing of the basis for the guilty verdicts, was that the jury found the appellant submitted the medical certificates intentionally, and that the appellant was fit for some work during these occasions when he claimed he was not fit for work.

[4] In sentencing, the Judge correctly acknowledged that he should only sentence the appellant with reference to the benefits he received during the period for which he was convicted.The appellant and the Corporation were unable to arrive at an agreed figure for reparation and the Judge determined that the appellant should make reparation in the sum of $10,288, this being, he said, one half of the tax paid amount received during the 39 weeks.Later in the judgment he observed that in all probability the appellant was entitled to some ACC payments during the period as he had some disability that would have prevented him from working full time as he had done prior to the accident.

[5] By the time the appellant was sentenced his marriage had broken down and according to the pre-sentence report and the reparation report, except for a claim against the Accident Rehabilitation and Compensation Insurance Corporation that the Corporation had wrongly terminated his compensation payments, he had no assets and no income.He had just completed a sentence of imprisonment on an unrelated matter and, at age 48, he had no immediate employment prospects.The Probation Officer concluded that Mr Fleming was not in a position to meet reparation payments.He added that Mr Fleming stated he could make some reparation if he succeeded in his claim against the Corporation.

[6] The Judge noted what he described as the appellant's "present financially strained circumstances", but said that he had also taken into account other (unspecified) factors raised by the Crown.As noted above the appellant was also sentenced to six months periodic detention; that aspect of the sentence is not appealed.

[7] The reparation order is challenged on two grounds.First the appellant submits that the Judge did not follow the proper procedure in arriving at the figure for reparation.The reparation order was made pursuant to s22 of the Criminal Justice Act 1985.The section provides a procedure for obtaining a report for the court in accordance with s23 of the Act.The relevant provisions of s22 and s23 read as follows:

22 (1) Where any court by or before which a person is convicted of an offence, or any other court before which the offender appears for sentence, is satisfied that any other person suffered--

(b) Any loss of or damage to property--

through or by means of the offence, the court may sentence the offender to make reparation.

(2) Where, after giving the prosecutor and the offender an opportunity to be heard on the question, the court--

(a) Considers that such a sentence should be imposed in respect of loss of or damage to property only; and

(b) Is satisfied of the value of the loss or damage,--

the court may impose such a sentence without further inquiry.

(3) Subject to subsections (2) and (4) of this section, before imposing such a sentence, the court may (whether before or after giving the prosecutor and the offender an opportunity to be heard) adjourn the proceedings and order a probation officer, or any other person designated by the court for the purpose, to prepare a report for the court in accordance with section 23 of this Act on all or any of the following matters:

(a) In the case of emotional harm, the nature of that harm:

(b) In the case of loss of or damage to property, the value of that loss or damage:

(c) The means of the offender:

(d) The nature and extent of the offender's existing financial obligations:

(e) The maximum amount that the offender is likely to be able to pay under a sentence to make reparation:

(f) The frequency and magnitude of any payments that should be required under a sentence to make reparation, where provision for payment by instalments is thought desirable.

....

(6) Notwithstanding anything to the contrary in this section, where the offender has insufficient means to pay the total value of the loss or damage ... on sentencing the offender to make reparation, the court may direct the offender to make--

(a) Reparation for any amount which is less than the value or amount of the loss, damage, or harm; or

(b) Periodic payments in respect of the loss, damage, or harm; or

(c) Both.

23 (1) Any probation officer or other person who is required by a court to prepare a report under section 22 of this Act shall attempt to seek agreement between the offender and the person who suffered ... the loss of or damage to property on the amount that the offender should be required to pay by way of reparation.

(2) Where such agreement is reached, the probation officer or other person shall report the terms of the agreement to the court (in addition to any other matters on which the court has required a report).

(3) Where no such agreement is reached, the probation officer or other person shall,--

(b) In respect of loss of or damage to property, either--

(i) Determine the value of the loss or damage on the evidence available, and include in the report the value so determined; or

(ii) State in the report that the matter is unresolved.

[8] As can be seen, s23 provides that the person preparing the report shall first seek agreement between the parties on the amount that the offender should be required to repay.Where agreement cannot be reached this is to be stated in the report pursuant to s23(3)(b)(ii).The Act is not, however, clear on how the Judge is then to arrive at a figure.The sentencing Judge simply stated that pursuant to s22, having heard prosecution and defence on the issue it was competent for him to arrive at a figure.He selected a figure that was one half of what he said was the total amount paid to the appellant by the Corporation during the relevant period.The appellant submits that this figure is too high; medical evidence at the trial indicated that the appellant suffered from at least some degree of disability and the appellant himself argued that he was only ten percent fit for work and that therefore only ten percent of what he received was an overpayment.The appellant now argues, relying on this Court's decision in R v Gray (CA 356/93, 13 November 1996), that the Judge ought to have heard evidence on the issue of quantum and should not have arrived at a figure without doing so.

[9] The Criminal Justice Act does not specifically require a hearing on the quantum of reparation.Section 22 of the Act clearly envisages the possibility that the Judge may fix the amount to be repaid on the basis of the evidence that he or she has heard at trial.Section 17(3), however, contemplates a hearing in some circumstances.Subsection (3) provides:

(3) The offender or his or her counsel may tender evidence on any matter referred to in any report, whether written or oral, that is submitted to a court by a probation officer, or by any other person under section 23 of this Act.

[10] In Gray the court recognised that a hearing was not mandatory (p 18).And in R v O'Rourke [1990] 1 NZLR 155 this Court held that in circumstances where the offender did not wish to be heard on the matter it was appropriate for the Judge to assess quantum on the basis of evidence heard at trial.Gray does, however, hold that the circumstances may be such that the trial Judge should receive evidence as to the amount to be repaid.

[11] Mr McKechnie submitted that the question of how much Mr Fleming owed the Corporation was properly determinable in other processes and that the medical and other evidence before the Judge was insufficient to allow the Judge to conclude Mr Fleming's percentage fitness to work and the extent to which he had been overpaid.While the evidence was limited Mr Fleming told the Probation Officer he was prepared to accept that he may have been 10% fit for work during the period, it seems that he had done some bulldozer work and other work and that Dr Veale had encouraged him to make a graduated return to work.We are not persuaded that the Judge erred in his assessment.

[12] The appellant's second ground of appeal is that his inability to pay makes the reparation order inappropriate.Subsection 23(6) contemplates that where the offender has limited ability to pay, the Judge may order reparation for a lesser amount than he or she would otherwise have done.Furthermore the power to order payment by instalments suggests that the order is to some extent to be tailored to the offender's financial circumstances.In R v Jarvis (CA 306/86, 2 March 1987) this court commented at 4:

It is clear from these sections that the offender's means, his obligations and the maximum amount that he is likely to be able to pay are important considerations in ordering reparation.

And in R v Hooker (CA 88/90, 6 August 1990) this court observed that a reparation order should not be made where the appellant is in no financial position to meet it and is likely to be exposed to enforcement procedures for non-payment.

[13] Ms Mobberley explained that the factors raised by the Crown on sentencing, as noted without detail by the Judge, were that it appeared from the pre-sentence report that when they separated while Mr Fleming was in prison, and so only a short time before trial and sentencing on these charges, he had relinquished his interest in the matrimonial home and domestic assets to his wife, who also took over his debt for income tax, and that he had also previously had an interest in some family land which had been placed in trust and registered with the Maori Land Court.Ms Mobberley submitted that the Judge could take those transfers of assets into account.

[14] That matter was not explored at trial which inevitably focussed on the periods covered by the charges.With respect, we consider that the Judge was not entitled without hearing further evidence and making an assessment of that evidence to depart from the conclusions reached by the Probation Officer that Mr Fleming had no assets or income and was not in a position to meet reparation payments at this time.

[15] The appeal is accordingly allowed and the reparation order quashed.The civil processes that are in train and in contemplation can resolve the position as between the Corporation and Mr Fleming.

[16] Finally, it is not an appropriate case in which to consider increasing the term of periodic detention.The appeal was confined to the reparation order and there is no indication in the sentencing judgment that in fixing the term of periodic detention the Judge was influenced by the reparation order he had made.

Solicitors

McKechnie Quirke & Lewis, Rotorua, for appellant

Crown Law Office, Wellington