HAA V POLICE HC ROT CRI 2005-463-000091 [2005] NZHC 268 (22 November 2005)

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY
                                                           CRI 2005-463-000091



                BETWEEN                      RICHARD KAHE HAA
                                             Appellant

       
        AND                          POLICE
                                             Respondent


Hearing:        22 November
2005

Appearances: A Schulze for Appellant
             TR Bayley for Respondent

Judgment:       22 November 2005


           
                 JUDGMENT OF COOPER J




Solicitors:
HS Edward, PO Box 378, Rotorua
Davys Burton, Crown Solicitors, PO Box 248,
Rotorua




HAA V POLICE HC ROT CRI 2005-463-000091 22 November 2005

[1]    Mr Haa appeared for sentence before McGuire DCJ on
3 November 2005
having pleaded guilty to ten charges of burglary. He was sentenced to a term of
imprisonment of two and a half years
on each of the charges, the sentences to be
served concurrently. In addition the learned District Court Judge made an order for
reparation
in the sum of $15,959. Mr Haa has appealed against the sentence under
s 116 of the Summary Proceedings Act. The sole issue pursued
on the appeal,
however, relates to the order for reparation.


[2]    In advancing the appeal Mr Schulze has referred to the fact
that no reparation
report was prepared before the sentence was imposed. He concedes in accordance
with the decision of Frater J in
Simon v Police HC ROT CRI 2005-463-000004 16
March 2005, that preparation of a reparation report is not a mandatory precursor of
an order that there be reparation. It is possible, of course, that sufficient detail will
be provided in a pre-sentence report to
enable the Judge to consider the matters
which it is both necessary and desirable to consider before making an order for
reparation.
In any event, it is plain from s 33 of the Sentencing Act that provision of
a reparation report is not mandatory.


[3]    In this
case, however, there was very little information available from the
pre-sentence report in relation to Mr Haa's ability to pay reparation
of the magnitude
that was ordered.


[4]    The pre-sentence report recorded that at one stage Mr Haa had been
employed as a labourer
with a construction company. However, it was noted that this
was seasonal work which had come to an end. Mr Haa had stated that his
employer
was willing to "take him back on" in the coming weeks when the season
recommenced, but there was no detail about what income
would be produced even if
those events occurred. It has to be said that, now that a sentence of two and a half
years' imprisonment
has been imposed, the prospect of Mr Haa securing re-
employment in that position must be regarded as very contingent indeed.


[5]
   I add in that respect that such is Mr Haa's previous history of offending that
this is not a case where it could be said with
any certainty that the normal provisions

of the Parole Act as to eligibility for parole would necessarily be applied in Mr Haa's
favour.


[6]       There was also a reference to the fact that by a partner from whom he is now
estranged Mr Haa had two children
aged eight and one years and Court records were
referred to as indicating that Mr Haa has $6,105 outstanding in fines which as the
author put it, were "currently under arrangement". However, Mr Haa informed the
author that he was not paying anything towards the
reduction of that debt because he
had ceased to be employed.


[7]       It was further observed in the pre-sentence report that:

          Reparation was canvassed at interview and Mr Haa has agreed to pay for any
          items that were not recovered. At
the time of completing this report the
          reparation figure was not known. Rotorua Police will have the full
          reparation
figure at sentencing on the 3 November 2005.

[8]       The information that was then given to the learned District Court Judge at
sentencing was evidently the basis for the order for reparation in the sum of $15,959
that was imposed. The Judge recorded a submission that had been made on Mr
Haa's behalf that that
sum was far more than Mr Haa had been able to obtain when
he sold the goods in question. The learned District Court Judge stated
that that was
to be expected when stolen goods were sold.


[9]       I do not criticise that comment, but I mention it in the current
context because
it is not apparent from the pre-sentence report or the sentencing notes that there was
any focus on Mr Haa's ability
to meet the order for reparation and I do not think that
one can be confident that Mr Haa's recorded undertaking to pay for any items
that
were not recovered was an informed undertaking, or anything more than an
expression of his remorse.


[10]      The learned
District Court Judge's sentencing notes simply record that the
total amount of reparation sought by the police was the sum of $15,959,
that counsel
had not argued with that figure and that finally there would be an order for reparation
in that amount. It is not obvious
from the decision that the Judge turned his mind to
the question of whether the order for reparation would result in undue hardship
for

the offender or his dependants or whether there might be circumstances that might
make the order inappropriate. Section 12
of the Sentencing Act 2002 requires
consideration of those matters. In my view there was insufficient information before
the Judge
which could have enabled him properly to carry out that consideration.


[11]    Both Mr Schulze and Ms Bayley have referred to the
decision of Frater J in
Simon v Police to which I have already referred. In addition counsel have drawn my
attention to the decision
of Penlington J in Hughes v Accident Rehabilitation
compensation and Insurance Corporation (HC HM AP17/97 25 March 1997).
Penlington
J, in a passage that was subsequently approved by Frater J, said at page 7
that:

        The Court of Appeal has, on a number of
occasions, stated that any order for
        reparation must be realistic in terms of the offender's ability to comply with
    
   it. That Court has gone on to state that where there is no realistic prospect
        that the order will be paid, an order for
the full amount should not be made
        as a defendant should not be exposed to the possibility of enforcement
        proceedings
for non-payment in such a situation.

At page 8 Penlington J also observed:

        As well a recurring theme in the Judgments of
the Court of Appeal and in the
        Judgments given by Judges of this Court has been that an order to pay a
        large sum
over a long period is generally regarded as being ineffective and
        may in some cases imply provoke further crime.

[12]  
 I mention also the decision of Anderson J in Rihari v Department of Social
Welfare  (1991) 7 CRNZ 586 in which it was said that:

        The authority of the law is not necessarily maintained by the making of
        orders which
cannot realistically be capable of compliance.

[13]    Those cases, with which I respectfully agree, underline the importance of
the
Court being fully informed about the ability of an offender to pay reparation
especially where the sum is significant, as it
was in this case. It may be that the
learned District Court Judge was in some way left with the wrong impression by the
evidently
brief attention this matter received from counsel for the offender at the
sentencing. Be that as it may, I am satisfied for the reasons
already addressed that
the order should not stand.

[14]   For completeness, however, I go on to observe that contrary to s 36 of
the
Sentencing Act there was here simply an order for reparation in the sum of $15,959.
Section 36 requires that if a Court sentences
an offender to make reparation it must
determine conditions of the sentence in respect not only of the total amount of
reparation
to be paid, but also specifying whether the amount is to be paid in one
lump sum or in instalments and if the former, whether it
is to be paid immediately or
at some specified future date. The inference from the bare terms of the current order
is that payment
in one lump sum was envisaged, but no date was given for payment.
It cannot have been expected that the sum would be paid immediately
and so it
seems to me that the decision is unlawful for failure to state a specified date for
payment.


[15]   Having reached that
conclusion it can readily be said I think, that on both the
grounds I have addressed the sentence was inappropriate within the meaning
of
s 121(3)(b) of the Summary Proceedings Act and the appeal should be allowed.


[16]   Mr Schulze submitted that if that was the
view to which I came I should
simply quash the order. I am not prepared to do that. Mr Haa's history of offending
is such that the
learned District Court Judge quite properly described him as a
recidivist burglar. If full information had been available to the
Judge indicating that
reparation was an appropriate and viable sentence I have no doubt that it would have
been properly imposed
in addition to the sentence of imprisonment.


[17]   In those circumstances it seems to me that the appropriate course to follow
is
to quash the order for reparation, to direct pursuant to s 33 of the Sentencing Act the
preparation of a reparation report and
to refer the matter back to the District Court
for consideration of whether an order for reparation can be made. As the reason for
taking that action is the inadequacy of the information concerning Mr Haa's financial
position and ability to pay, I direct that
the reparation report need only be prepared in
relation to the financial capacity of Mr Haa, the maximum amount that he is likely
to
be able to pay under a sentence of reparation and the frequency and magnitude of
any payments that should be required under a
sentence of reparation (see the
Sentencing Act 2002, s 33(1)(d), (e) and (f)).

[18]   The appeal is allowed accordingly and the
matter is remitted back to the
District Court with a nominal date for mention in that Court of Tuesday 20
December 2005.