Kennett v Police [2014] NZHC 231 (20 February 2014)

Last Updated: 26 February 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2013-409-80 [2014] NZHC 231

NATHAN STUART KENNETT Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 20 February 2014

Appearances: M M Cole and R M Matheson for Appellant

C Newman for Respondent

Judgment: 20 February 2014

_{JUDGMENT OF MANDER J}

Introduction

[1] The appellant was sentenced in the Christchurch District Court by Judge MacAskill on a charge of burglary which involved the theft of golf equipment from the Clearwater Golf Course. He was also sentenced at that time on a range of other offending which is not relevant for the purposes of this appeal. On the burglary which was taken as the lead charge, the appellant was sentenced to imprisonment for

19 months and ordered to pay reparation in the sum of $17,937.20. It is against that reparation order that this appeal lies.

Facts

[2] The burglary involved the entering of a marquee which contained promotional golf equipment and apparel. Golf bags, clubs, promotional items and

_{other clothing and accessories were stolen.}

KENNETT v NEW ZEALAND POLICE [2014] NZHC 231 [20 February 2014]

[3] Some two weeks after the burglary the police executed a search warrant at the appellant’s house and located several items of stolen property. The appellant admitted selling one of the items stolen on Trade Me and advised of his intention to sell the majority by the same method. The genesis of this appeal lies with what equipment was recovered by the police and in what condition; and what property remained missing.

The District Court reparation order

[4] Judge MacAskill in sentencing the appellant had available to him a reparation schedule attached to the police summary of facts which recorded a total reparation sum of $17,937.70 payable to the insurance company Farmers Mutual Group (FMG). The Department of Corrections, in a document prepared for the Court entitled “Provision of Advice to Courts Including Reparation”, advised that the victim of the burglary had made a claim to its insurance company and been reimbursed by them to the sum of $15,937.70. A $2,000 insurance excess had been incurred by the owners of the golf gear. The insurance company advised that there were some damaged items which had been paid out on that were now in their care and it would be looking to sell more items to recover some of the claim costs. At that time it was not possible to anticipate how much money would be raised to offset these claim costs.

[5] The report recorded that the appellant while accepting responsibility for the burglary disputed the amount of reparation being sought. He maintained that most of the stolen items were recovered when the search warrant was executed and that on this basis he was of the opinion that the reparation sought should be of a lower amount. He stated he would be willing to pay reparation of a lower amount if this was ordered subject to him having the financial means upon his release.

[6] In sentencing the appellant, Judge MacAskill recorded that he was satisfied that the appellant could pay reparation within a reasonable time. It was noted that presently the appellant did not have the means but the Judge was of the view that, if he put his mind to getting work after his release, the appellant could pay reparation. Judge MacAskill ordered the appellant to pay the full amount of $17,937.70 and

noted that in the event it was found that the appellant was entitled to some credit (presumably from the sale of the recovered items), then application could be made to the Court to reduce the amount of reparation. The Judge ordered the payment rate to be fixed by the Registrar within three months of the appellant’s release from prison.

Progress on the appeal to date

[7] The appeal is against the reparation order. The appellant submits, firstly, that the sentencing Judge failed to properly assess the amount of reparation owing. Secondly, that the Judge placed insufficient weight on the appellant’s financial and personal circumstances and did not give proper consideration to whether the reparation ordered would result in undue hardship.¹

[8] The appeal was called in this Court on 19 September 2013. It was apparent that until an accurate reparation figure was obtained little progress could be made in determining the matter. Fogarty J adjourned the appeal pending a report from the insurer as to the final reparation sum.

[9] Enquiries have now been made of FMG and further submissions have been filed by the respondent advising as to the present position. The insurance company reports that to date it has sold $580 worth of recovered items and there are still pieces of equipment yet to be sold. The insurance company advised that the reason for this is a lack of interest in part sets. An updated estimate provided to the Court by the Crown is that the remaining stock will attract some $5,000. As to when those items can be sold no accurate estimate is available.

[10] There remains the $2,000 excess paid by the policy holder and an estimate from the insurance company that recovered equipment sold to date and the prospective sale of other stock will reduce its loss, at the most, by about $5,600.

_{This would leave a true loss to the insurance company in the region of $10,600.}

¹ Sentencing Act 2002, s 12(1).

The respondent’s position

[11] The respondent responsibly acknowledges that such a figure, if imposed, would amount to undue hardship for the appellant, and it accepts that in all respects this would be an unrealistic figure to impose. The Crown further submits that a figure needs to be identified by the Court that takes into account the loss suffered by the victim and the insurance company that is realistic but will not result in undue hardship for the appellant.

Issues remaining on the appeal

[12] With that acknowledgment by the Crown, the question that is left to be determined on appeal is whether the reparation order should be quashed altogether, or alternatively a significantly revised reparation figure substituted. The latter would in my view need to be a considerably reduced sum. Counsel for the appellant acknowledges that whatever dispute exists as to the value of unrecovered equipment and apparel, the loss to the victim and the insurers was well in excess of such a sum.

[13] Section 12(1) Sentencing Act 2002 provides as follows:

12 Reparation

(1) If a court is lawfully entitled under Part 2 to impose a sentence or order of reparation, it must impose it unless it is satisfied that the sentence or order would result in undue hardship for the offender or the dependants of the offender, or that any other special circumstances would make it inappropriate.

[14] The appellant submits that a sentence of reparation would result in undue hardship for the offender, in particular:

(a) The appellant had no means to meet a reparation obligation at the time of sentencing, nor will he be in any better position upon his release from prison. He has obligations to a young child who has a significant medical condition.

(b) The appellant has significant issues with his hands, which casts a very real doubt on his ability to find employment and to meet such

obligations following his release from prison. I do not doubt this is the case, however no medical evidence was put before the Court as to the degree of his incapacity and the summary of facts upon which he was sentenced refers to the appellant’s explanation of fly fishing immediately prior to his commission of the burglary.

(c) A reparation order carries the risk of it negatively impacting on his rehabilitation and reintegration into society. In that regard, Ms Cole made reference to the judgment of Heath J in Waaka v Police,² in which his Honour makes reference to his earlier judgment of Gordon v Police.³

I regard it as inappropriate for the Court to impose a sentence of reparation, particularly in respect of a substantial sum such as this, on an offender who then has the need to comply with that order hanging over his or her head from the time of release from prison. It is important that once an offender has been released from prison that he or she can have a fresh start in order to give effect to principles of rehabilitation in the community. If there was evidence that assets existed from which reparation could be made, the position would be different. The position would also be different if the sentence was short and there was a job to which the offender could go after serving the sentence which would provide a source of income to pay reparation.

In that case the appellant had been sentenced to a term of four years imprisonment and reparation of some $42,000.

(d) Whatever the level of reparation imposed, the appellant is unlikely to be able to pay it within a reasonable time. Before the current sentence was imposed he had outstanding fines and reparation of

$4669 and $5500 respectively.

[15] It should be noted that the fact that reparation is imposed on an offender in addition to a sentence of imprisonment will not in itself result in undue hardship. It

_{is however a factor to be weighed, having regard to the punitive nature of the}

² _{Waaka v Police HC Hamilton AP97/02, 17 December 2002.}

³ Gordon v Police HC Hamilton AP98/02, 16 December 2002.

sentence of reparation. ⁴ Mr Newman drew my attention to a paragraph in Adams on Criminal Law,⁵ to the effect that the fact the present means of the offender are insufficient to make immediate reparation is not in itself justification for a refusal to impose such a sentence.

[16] It is apparent from the sentencing Judge’s remarks that he believed that the appellant could pay reparation within a reasonable time. While the appellant did not at the time of sentence have the means, if the appellant gained work after his release, the Judge believed he could do so. Judge MacAskill clearly was of a view that there was a need to impose a reparation order to give effect to the relevant purposes of sentencing, including the need to denounce the appellant’s offending, hold him to account and deter himself and others and that this would not have a deleterious effect on the appellant’s rehabilitative needs. Reparation as a component of the sentence imposed was intended to take effect on the appellant’s release from prison.

[17] As has been acknowledged by the Crown, the appellant clearly has insufficient means to pay the original reparation figure, and I am satisfied that allowing the original reparation order to stand would, as is also acknowledged by the Crown, result in undue hardship for the appellant and be counterproductive. An order which is clearly beyond the foreseeable means of the offender is to be avoided.⁶

[18] The appellant, for the purposes of sentencing last year, informed the Court that he would be willing to pay some reparation but contested the amount being sought. Clearly any responsibility to compensate was only to trigger upon his release from prison. He was also to meet any obligation imposed at a payment rate which was reasonable, to be fixed by the Registrar within three months of his release.

[19] To impose any reparation might be considered as a token and an obstacle to the appellant making a fresh start. The observations of Heath J, as previously cited,

⁴ _{Hunt v Police HC Wellington AP232/99, 29 September 1999.}

⁵ Bruce Robertson, Adams on Criminal Law - Sentencing (online looseleaf ed, Brookers) at

_[SA35.01]

⁶ R v Brown CA 267/92, 26 November 1982.

are to be borne in mind in that regard. As against that however the appellant needs to be conscious of the harm caused by his offending and the cost to others that has resulted from his actions. The appellant did offer to compensate his victims at the time of sentencing and that should be followed through with. While it is apparent that the condition of his hand may preclude him from the type of manual labour described in the presentence report, other types of employment even if of an unskilled nature cannot be ruled out as being available to him.

[20] The appeal is allowed and the original reparation order quashed. In its stead will be a reparation order in the sum of $2,000 ($500 to the victim of the burglary and $1,500 to FMG. The payment rate is to be fixed by the Registrar, as originally ordered.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co, Christchurch