Ebdale v R [2015] NZHC 3154 (10 December 2015)

Last Updated: 14 December 2015

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-463-000053

CRI-2015-463-000055 [2015] NZHC 3154

BETWEEN	CHRIS SHANE EBDALE Appellant
AND	THE CROWN Respondent

Hearing:	10 December 2015
Appearances:	H Edward for Appellant Z R Johnston for Respondent
Judgment:	10 December 2015

_{ORAL JUDGMENT OF GILBERT J}

Solicitors:

H Edward, Rotorua

Crown Law, Wellington

EBDALE v THE CROWN [2015] NZHC 3154 [10 December 2015]

Introduction

[1] Following pleas of guilty, Mr Ebdale was convicted of one charge of arson and one charge of male assaults female. He was sentenced by Judge P S Rollo in the Waihi District Court on 27 July 2015 to cumulative sentences of two years and nine months’ imprisonment for arson and nine months’ imprisonment for male assaults female, giving a total effective sentence of three years and six months’

imprisonment.¹

[2] The property damage amounted to approximately $106,000 as a result of the fire. The Judge ordered Mr Ebdale to pay reparation of $25,000 at the rate of $30 per week commencing 28 days after his release from prison.²

[3] Mr Ebdale appealed against all aspects of the sentence but now seeks to advance his appeal only in relation to the reparation order.

[4] Mr Ebdale’s appeal was lodged out of time. He has explained the reasons for this. There is no opposition and accordingly leave is granted for Mr Ebdale to appeal out of time.

Submissions

[5] Mr Edward submits that an order for reparation should not have been made because no reparation report was obtained pursuant to s 33 of the Sentencing Act

2002 and the information that such a report would provide was not otherwise available to the Judge. Further, given the lengthy period of imprisonment imposed and the seriousness of the offending, Mr Edward submits that Mr Ebdale, who was formerly employed as a dairy farmer, may have considerable difficulty obtaining employment following his release.

Analysis

[6] Section 12 of the Sentencing Act provides that sentences of reparation should be made unless they would cause undue hardship. Undue hardship means hardship

¹ _{R v Ebdale [2015] NZDC 14818.}

² At [21].

greater than the circumstances warrant. Woodhouse J reviewed the relevant authorities in Guinness v Police which demonstrate general acceptance by the Courts that unless an order for reparation can be met within five years, undue hardship will be caused.³ In this case, the reparation order will take over 16 years to comply with.

[7] Mr Ebdale is 31 years of age and has four dependent children. The only other evidence as to his ability to comply is contained in the probation report:

Key Reparation Considerations

While reparation is being sought from Mr Ebdale no schedule has been

received and currently Mr Ebdale advised he is unsure what he will be able to afford, as when he comes out of prison he has outstanding fines of

$8963.52 and would be subject to paying child support. He would on release be in receipt of a government benefit of unknown value.

[8] Even assuming Mr Ebdale will have means to comply with it following his release from prison, the reparation order will cause undue hardship because it will take more than 16 years for him to pay the amount that has been ordered. Further, there is insufficient evidence from which to conclude that Mr Ebdale will be able to meet the weekly amount ordered given his obligations to pay child support for four children, his outstanding fines and the expectation that he will be in receipt of a benefit. The Judge recognised this:

[20] Whether you are able to pay that, time will tell, but at least it is a token payment towards the insurance company and the loss which has been sustained, which I consider to be appropriate. Neither Mr Nabney nor Mr Belton object to payment on those terms at this time.⁴

[9] While counsel for Mr Ebdale and for the Crown may not have objected to the proposed reparation order, there is no evidence that the parties who suffered the loss were consulted. The Judge was obliged to take into account the fact that these parties were entitled to pursue recovery through civil proceedings and may not have approved of the proposed reparation arrangements that were developed without consultation with them.⁵ Achieving such agreement is one of the objectives of a

_{reparation report commissioned pursuant to s 33 of the Act.}

³ _{Guinness v Police [2015] NZHC 883 at [17] and [18].}

⁴ _{Counsel for Mr Ebdale and the Crown respectively.}

⁵ Sentencing Act 2002, s 32(3).

[10] For these reasons, I am satisfied that the reparation order must be set aside.

Result

[11] The order for reparation is set aside. The matter is remitted to the

District Court for reconsideration. I make a direction pursuant to s 33 of the Act that a reparation report be prepared.

M A Gilbert J