Stewart v R [2018] NZCA 375 (18 September 2018)

Last Updated: 10 October 2018

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA163/2017 [2018] NZCA 375

	BETWEEN	KELLY WILLIAM STEWART Appellant
	AND	THE QUEEN Respondent

Hearing:	29 August 2018
Court:	Miller, Mallon and Gendall JJ
Counsel:	J F Mather for Appellant B D Tantrum and O M Klaassen for Respondent
Judgment:	18 September 2018 at 11.00 am

JUDGMENT OF THE COURT

A The appeal is allowed. The sentence of reparation is quashed.

2. The issue is remitted to the District Court for reconsideration of whether a sentence of reparation should be imposed and, if so, the conditions of any order.

100. Order under s 33 of the Sentencing Act 2002 that a reparation report is to be prepared for the purpose of sentencing in the District Court.

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REASONS OF THE COURT

(Given by Gendall J)

Introduction

[1] Mr Stewart was convicted in the Auckland District Court on 11 January 2017 following a trial before Judge Ronayne and a jury on one charge of burglary.
[2] On 27 February 2017, Judge Ronayne sentenced Mr Stewart to four years and four months’ imprisonment and ordered him to pay reparation of $21,946.55.^[1]
[3] Mr Stewart appeals against the sentence of reparation on the grounds that it was manifestly excessive and that the reparation order should be quashed.

Background facts

[4] Mr Stewart burgled the commercial premises of Warehouse Stationery in Mount Wellington, Auckland, on the night of 1 and 2 November 2014. He gained entry by sawing through the exterior wall of the building and through an internal steel cage in the storeroom containing electronic items. He stole electronic items to the value of $15,094.30, which were not recovered. Warehouse Stationery was required to repair the damage to its building and the cage and pay for the building to be guarded while it was repaired, a total cost of $6,852.25.
[5] Mr Stewart was able to be identified as the offender because he opened and drank a bottle of Gatorade, leaving it at the scene. A DNA swab taken from the empty bottle matched with Mr Stewart.

Sentencing and reparation order

[6] During Mr Stewart’s sentencing hearing, Judge Ronayne remarked on his concerning recidivist pattern of burglary and dishonesty offending.^[2] Mr Stewart had seven burglary convictions between 2000 and 2007.
[7] In the Provision of Advice to Courts report it was recorded that Mr Stewart had a strong desire to make amends for his actions and although “honest in admitting he was not in a position to financially reimburse the victim at present”, he stated he would be able to make reparation “as he has a number of business ventures with which he has approached investors”. The report writer concluded however that “concern remains about the likelihood of Mr Stewart being able to reimburse his victim through this means”.
[8] At the time, Mr Stewart also had $6,496.17 owing in fines which pre-dated the reparation order.
[9] At his sentencing on 27 February 2017, Mr Stewart sought an adjournment. The purpose of this, he said, was to enable him to sell personal items in order to facilitate reparation. Judge Ronayne, however, declined this application and proceeded to sentence Mr Stewart. The only consideration of reparation in the Judge’s sentencing notes appears to be where, without more, he stated:^[3] “you are ordered to pay reparation of $21,946.55 to the Warehouse Stationery, Mount Wellington.”

Legal principles

[10] In addressing reparation, s 12(1) of the Sentencing Act 2002 (the Act) provides that, if a Court is lawfully entitled to impose an order of reparation, it “must” do so unless satisfied that the order “would result in undue hardship for the offender or the dependents of the offender, or that any other special circumstances would make it inappropriate.”
[11] “Undue” indicates something more than the ordinary concept of hardship is intended, such as excessive hardship or hardship greater than the particular circumstances warrant.^[4] The fact that a sentence of reparation is imposed on an offender who is also sentenced to imprisonment is not in itself undue hardship.^[5]
[12] Section 35(1) of the Act provides that if an offender has insufficient means to pay the total value of the loss, the Court may impose a sentence involving reparation for an amount less than the value of the loss and/or payment by instalments.
[13] Finally, under s 33(1) of the Act, if the Court considers a sentence of reparation is appropriate, it may order a reparation report be prepared. As this Court noted in R v Wonnacott, such reports allow the Court to:^[6]

• (a) make an assessment of whether the order would result in undue hardship under s 12;
• (b) make an assessment of the offender’s means under s 35; and
• (c) determine the conditions of an order for reparation under s 36(1).

[14] The Court, however, may both decline to seek a reparation report and impose a sentence of reparation without further enquiry if it is satisfied, first, as to the amount of reparation that an offender should pay or, secondly, that the information which would have appeared in any report is available through other means or, thirdly, it considers that in all the circumstances a report is unnecessary.^[7]
[15] Similar issues to those arising in the present case were considered by this Court in R v Wonnacott.^[8] There, the appellant was on a benefit and struggling financially. The sentencing Court, without the benefit of a reparation report because of time delays, nevertheless proceeded with sentencing and ordered reparation totalling $27,142.96 to be paid in instalments to be assessed and directed by Collections. On appeal, this Court held that the appropriate course was to quash the reparation order and remit the case back to the District Court to reconsider whether a reparation order should be made and, if so, the conditions of any such order. It was noted that the District Court would need to order a reparation report under s 33 of the Act.

Analysis

[16] Mr Stewart’s present financial circumstances are not known. Submissions from his counsel, Mr Mather, do not outline what kind of payment or payment instalments, if any, could be made.
[17] There is currently information before the Court which suggests that Mr Stewart holds at least some assets which might be sold to pay a part of the reparation total that has been ordered. Some further information and insight into his financial circumstances is clearly necessary.
[18] Here, the order for reparation imposed by Judge Ronayne was made in circumstances where Mr Stewart had not placed any details of his financial position before the Court. In addition, no reparation report had been prepared.
[19] Counsel for both Mr Stewart and the Crown agree that due process was not followed, this appeal should be allowed and the matter remitted back to the District Court for the issue of reparation to be determined, once further information regarding Mr Stewart’s financial position is known. We agree. It is appropriate here to remit the matter back to the District Court so that this issue of reparation can be determined afresh.
[20] Obviously the first step the District Court will have to take is to consider the reparation report we are ordering under s 33 of the Act.

Result

[21] The appeal is allowed. The sentence of reparation is quashed.
[22] Given that this appeal is simply one against the sentence of reparation, the matter is remitted back to the District Court for reconsideration of whether a sentence of reparation should be imposed and, if so, the conditions of any such order.
[23] We make an order under s 33 of the Act that a reparation report is to be prepared for the purpose of sentencing in the District Court.

Solicitors:
Crown Solicitor, Auckland for Respondent

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^[1] R v Stewart [2017] NZDC 5046.

^[2] At [4].

^[3] At [13].

^[4] Hunt v Police HC Wellington AP232/99, 29 September 1999 at 7.

^[5] R v Creek CA199/06, 17 August 2006 at [12].

^[6] R v Wonnacott [2009] NZCA 414 at [20].

^[7] Sentencing Act 2002, s 33(2).

^[8] R v Wonnacott, above n 6.