Elsworth v Police [2015] NZHC 3082 (16 December 2015)

Last Updated: 21 December 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000330 [2015] NZHC 3082

BETWEEN	JESSE ELSWORTH Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	7 December 2015
Appearances:	Appellant in person M D Anderson for Respondent
Judgment:	16 December 2015

_{JUDGMENT OF HINTON J}

This judgment is delivered by me on 16 December 2015 at 12.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitor:

Crown Solicitor, Auckland

And to: Appellant

ELSWORTH v NEW ZEALAND POLICE [2015] NZHC 3082 [16 December 2015]

Introduction

[1] Mr Elsworth appeals against an order for reparation imposed on him as part of his sentence on a charge of wilful damage to a motor vehicle.¹

Facts

[2] The victim, Mr Wallace, was at an address in Chilcott Road for a social event on 4 April 2015 and left his BMW vehicle parked on the road outside the address. The summary of facts records that Mr Elsworth drove up to the victim’s vehicle, stopped and squirted corrosive fluids onto the driver’s side of the vehicle. Mr Elsworth then tooted his horn before speeding off. Mr Wallace came out from the address, saw his vehicle was damaged and reported it to the Police. The summary of facts recorded that reparation of $2,500 was sought on behalf of the victim.

[3] There is some history between Mr Elsworth and the victim.

[4] Mr Elsworth was convicted on the charge of wilful damage following a

Judge-alone trial at the District Court at Waitakere before Judge Snell.

[5] In his oral judgment, Judge Snell said damage was caused to “one corner of the vehicle and on the roof”.

[6] Mr Elsworth was sentenced on the charge by Judge Bergseng, who had sat with Judge Snell during the trial. Judge Bergseng sentenced Mr Elsworth to 60 hours of community work and to pay reparation in the sum of $1,562.00. Judge Bergseng quantified the reparation sum based on a quotation for repair costs which totalled $1730.75. The Judge noted that there was an indication in the quotation that

$150 was for repairs to a rear tail lamp and bumper fittings, which were not part of

_{the damage caused. The Judge took those repairs off the quote.}

¹ Summary Offences Act 1981, s 11(1)(a). This charge carries a maximum penalty of three

months’ imprisonment or a $2,000 fine.

Mr Elsworth’s case on appeal

[7] Mr Elsworth’s case is that, on 1 September 2015, Judge Snell “gave instructions” as to how the reparation sentence was to be quantified. He says that the reparation order imposed was not in accordance with those instructions. I set out his argument as contained in his memorandum dated 2 November 2015:

1. After a lengthy hearing on 1 September 2015 in the Waitakere District Court the Judge directed that Mr Wallace was to obtain a quote for repairs to the roof only of the BMW. This was due to the vehicle receiving subsequent damage (and repairs) from an incident Mr Wallace had at Kmart post 4 April 2015.

2. I brought to the attention of the Judge that the dents in the roof (from my recollection 2 or 3) were already there when Ms Gower’s purchased the vehicle. I know this as we were in a relationship at the time.

3. The judge then responded by ruling that this pre-existing damage would be taken into consideration when ruling on 1 October 2015.

4. On 1 October 2015 a quote was presented for the whole vehicle including the rubbers around the windows. This was NOT as directed.

5. On 1 October 2015 it was a different Judge sitting even though he was present at the hearing on 1 September 2015.

6. On 1 October 2015 the Judge deducted approximately $150 due to the damage of the rear bumper. Again, the decision was to be of the roof of the vehicle only.

7. I therefore appeal the reparation costs of $1562.00

[8] At the time of filing submissions, the Crown did not have a copy of the transcript of the discussion with Judge Snell. At the hearing Mr Anderson acknowledged that the matter is problematic and that the quote does not seem to fairly link up with the evidence. Mr Anderson had discussions with Mr Elsworth outside Court but no solution was reached.

Approach to appeal

[9] An appeal against sentence must be allowed if the Court is satisfied there has been an error in the sentence imposed for any reason and that a different sentence

should be imposed.² The principles behind the law are well known, and not changed by the Criminal Procedure Act 2011.³ A sentence will be manifestly excessive if it is substantially or significantly more severe than it ought to have been having regard to the seriousness of the offending and the culpability of the offender.⁴

[10] Because an appellant must satisfy the Court that a different sentence should be imposed, the High Court will not intervene where the sentence is within a range that can be properly justified by accepted principles. In deciding whether a sentence is manifestly excessive, the focus is principally on the effective end sentence rather than the process by which the sentence is reached.⁵

Reparation principles

[11] The purpose of a sentence of reparation is to provide “a simple and speedy

means of compensating those who suffer loss from criminal activities”.⁶

[12] Section 32(1) of the Sentencing Act 2002 (“the Act”) permits a court to impose a sentence of reparation “if an offender has, through or by means of an offence of which the offender is convicted, caused a person to suffer, inter alia, loss of or damage to property”. Accordingly, there must be a causal link between the loss or damage and the offending.

[13] The Court of Appeal, following a comprehensive survey of the reparation provisions in the Act, has provided guidance as to how to establish causation:⁷

These provisions reinforce that a sentence of reparation is compensatory in nature. This in turn suggests that it may be appropriate to have regard to common law principles of causation. The statutory phrase, “through or by means of an offence”, is of wide expression and its outer limits are not immediately obvious. It may, therefore, prove helpful to have resort to the concepts of remoteness, materiality and intervening act (novus actus interveniens), at least in analysing more difficult factual situations. However, we endorse the viewpoint that reparation is to be approached

² _{Sentencing Act 2002, s 250.}

³ _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]- [27].}

⁴ _{At [33], [35].}

⁵ _{Ripia v R [2011] NZCA 101 at [15].}

⁶ _{R v O’Rourke [1989] NZCA 244; [1990] 1 NZLR 155 (CA) at 158.}

⁷ R v Donaldson & Anor CA227/06, 30 August 2006 at [36]–[38].

in a broad commonsense way, and resort to refined causation arguments is not to be encouraged.

[14] It follows that an offender cannot be required to pay reparation for damage or loss that occurred prior to his offending. The causal connection is also broken if there is an intervening act causing the loss which cannot be regarded as part of the continuing offence which is the subject of the charge.⁸

[15] Finally, s 33 of the Act gives the Court a discretionary power to seek a reparation report on various matters including the value of loss or damage to property. But a reparation report under s 33 is not a prerequisite to the making of a reparation order.⁹ This is because s 33(2) provides:

The court may decline to seek a report under subsection (1) and impose a sentence of reparation without further inquiry if—

(a) the court is satisfied as to the amount of reparation that the offender should pay; or

(b) the type of information referred to in a reparation report is available through other means (including, without limitation, a declaration made following a direction under section 41); or

(c) in all the circumstances the court considers that a report is unnecessary.

The discussion with Judge Snell on 1 September 2015

[16] At trial, the prosecution quantified the damage to the car at $2,500.00. In his oral judgment in which he convicted Mr Elsworth, Judge Snell said:¹⁰

[Mr Wallace] indicated that he had quotes to repair the damage of $2500 but no documentation at all was supplied to corroborate that and that is only a statement from him as to what the alleged cost of the damage was.

⁸ So, in Collins v Police [1989] NZHC 311; (1989) 4 CRNZ 219 (HC) reparation of $30,000 (being the value of the car stolen) could not be imposed upon an offender convicted on a charge of receiving a motor vehicle when the vehicle, having been found by the Police in the offender's possession, had subsequently been stolen from a Police yard and had not been recovered. Any loss or damage caused to the vehicle in that case could only relate to the loss in value between the time it was stolen and the time it was recovered. It was not possible to say the second loss of the car from the Police yard could amount to loss or damage arising from the offence.

⁹ _{R v Quayle CA39/03, 3 July 2003 at [20].}

¹⁰ Police v Elsworth [2015] NZDC 22982 at [27].

[17] After giving his oral judgment, Judge Snell then had a discussion with the parties about the sentencing of Mr Elsworth. I set out the relevant parts of that conversation:

The Court:

Madam Registrar, do you have a date for a sentencing, and I want to put the sentencing of this matter off because I am concerned that I do not accept the finding or the evidence that there was $2,500 worth of damage. I am also concerned, Mr Prosecutor, that on the photograph that Mr Elsworth provided to me the damage on the side of the vehicle where the paint is said to have run has now been completely fixed and it looks as though it is no longer there, and if that is the case, then he should not be billed for something that has been fixed which has been fixed independently. I do not really care how it came about to be fixed; if that has been fixed and paid for independently then he should not be billed for that in terms of reparation.

Mr King:

No that is understood, Sir.

The Court:

If there is still damage to the roof that can be determined in isolation; there are three bubbles that are alleged. So what I would order is for an updated reparation report.

Mr King:

Yes, Sir.

The Court:

I am concerned about what has been fixed and what has not been fixed so I would like the Police to investigate that so that we can have a proper figure for Mr Elsworth and I would like a date where we can deal with sentencing with those issues determined please.

[18] Following a discussion of the date and time for the sentencing, the following exchange took place between the Judge and Mr Elsworth:

Mr Elsworth:

Could I also say that the dents on the top of the roof were there when I

bought the car off her.

The Court:

That’s an issue that we can address in terms of the reparation report. I think that the officer will look at that and deal with that because the photograph that you showed me of the car, the more recent one, which the witness seemed to concede had been repaired in relation to an unrelated incident, seems to have removed the damage to the left side.

Analysis

[19] It is apparent from the conversation between Judge Snell, Mr King for the Crown and Mr Elsworth, that Judge Snell wanted to adjourn the sentencing in order to attain a reparation report to place an accurate value on the loss that Mr Wallace suffered as a result of Mr Elsworth’s offending.

[20] At sentencing, Judge Bergseng does not appear to have been provided with a reparation report. He was only provided with a copy of a quotation from Ballantynes Collision Repair Centre Ltd. The quotation does not provide information as to the actual damage Mr Elsworth did to the car by squirting corrosive fluid onto it and the cost of repair. It simply lists a number of items, including “RR door” and “RF door”.

[21] The legal principles are clear. Mr Elsworth can only be ordered to pay reparation for loss that he caused through, or by means of, an offence. He cannot be ordered to pay for the repair of damage to the car that pre-dated his offending, or subsequent damage that is unrelated to his offending.

[22] I do not consider the sentencing judge is bound by Judge Snell’s comments after his oral judgment or that Judge Snell was necessarily right in saying that if repairs had already been effected to the right side of the car they could not be recovered.

[23] However, I am of the view that, in the light of Judge Snell’s concerns about the quantification of reparation and the fact that the Judge had specifically directed the Police to prepare a reparation report, Judge Bergseng should not have dispensed with the need for a reparation report, or at least should not have accepted a bald quote. His Honour could not have been satisfied as to the amount of reparation that Mr Elsworth should pay, as the type of information that would have been referred to in a reparation report (or similar) was not available in the quotation.

[24] I also consider it is difficult to conclude that this was a case where, in all the circumstances, the Court could have considered that a report was unnecessary. On its face, the quotation does not appear to marry up with the evidence. Quite apart from the question of whether repairs should have been limited to the roof, the repairs

listed clearly include the right rear and right front side of the car whereas Judge Snell’s judgment refers to damage being caused to “one corner of the vehicle and the roof” and the photo on the Court file shows, or appears to show, damage only to the right rear of the car behind the rear door. Furthermore, the photo appears to show bumper damage, such that Judge Bergseng may have been wrong to deduct the bumper repair cost. I could not tell whether the photo was an exhibit or not and the parties did not know.

[25] I am also concerned at the suggestion that the quote is from a relative of the victim.

[26] It follows that the Judge erred in sentencing Mr Elsworth to pay reparation to

Mr Wallace in the sum of $1,562.00.

[27] It is regrettable to have to send this matter back, as a relatively common sense outcome is required and the amount involved is small. I suggest that the police file a simple statement from a suitable person confirming that they saw the car after this incident, briefly describing the damage done, confirming they consider it was caused by the incident and stating the itemised cost of repair of that damage (including any relevant repair work that has already been completed). Given the apparent subsequent accident, this person will also need to state the extent (if any) to which the reparation required was overtaken by the later accidental damage. If the only person who can make this statement is a relative of the victim then they should disclose the relationship and have someone independent confirm that the statement and the costs seem reasonable and fair.

Result

[28] The appeal is allowed and the sentencing remitted back to the District Court. The District Court will be able to obtain a reparation report (or similar) and sentence

_{on the basis of that report.}

Hinton J