Hubert v Police [2016] NZHC 2587 (28 October 2016)

Last Updated: 4 November 2016

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000089 [2016] NZHC 2587

BETWEEN	JAMES ANDREW HUBERT Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	26 October 2016
Appearances:	M Starling for the Appellant E J Henderson for the Respondent
Judgment:	28 October 2016

_{JUDGMENT OF NATION J}

[1] Mr Hubert pleaded guilty to a charge that on 6 October 2015 he had possession of an offensive weapon, a tomahawk, in circumstances that prima facie showed an intention to commit an offence involving the fear of violence. Because of other matters that had to be dealt with, he was not sentenced until 19 July 2016. On

0 May 2016 he pleaded guilty to a charge of intentionally damaging a cell phone. On that charge he was remanded for sentence on 19 July 2016.

[2] On 19 July 2016, on both charges Mr Hubert was convicted and sentenced to community detention for five months, subject to a curfew from 8.00 pm to 5.00 am.¹

He was also sentenced to supervision for a period of 12 months on a condition that he attends and completes an appropriate departmental programme to the satisfaction of the probation officer. He was also ordered to pay reparation of $400 for the cell

_{phone, $820 for damage done with the tomahawk to a window and $351.90 for}

¹ _{New Zealand Police v Hubert [2016] NZDC 16608.}

HUBERT v POLICE [2016] NZHC 2587 [28 October 2016]

damage to a car window also done with the tomahawk. Reparation was to be paid at the rate of $10 per week.

[3] Mr Hubert filed a notice of appeal on 24 August 2016. With that appeal, he indicated he needed to apply for legal aid. In the notice, he indicated the appeal was against the order requiring him to pay reparation in the sum of $1,171.90, being reparation for the damage done with the tomahawk. He said he was appealing on the grounds that he had not been charged with that damage but was still required to meet the cost of that damage.

[4] There was some delay in his filing the notice of appeal. He said this was because of stresses associated with his partner being in hospital with a new baby. In the circumstances, leave to appeal is granted. I have considered the appeal on the merits.

[5] Written submissions for the appellant were filed by Ms Drummond. She was unable to appear when the appeal was called but Mr Starling spoke of those submissions and made further submissions on Mr Hubert’s behalf.

[6] In her written submissions, Ms Drummond referred to ss 12 and 32 of the

Sentencing Act 2002. In particular, she referred to s 32(1):

(1) A court may 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—

(a) loss of or damage to property; or

(b) emotional harm; or

(c) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property.

[7] Mr Starling confirmed there was no appeal against the reparation order made in respect of the damage to the cell phone. He said, consistent with documents on the Court’s file, that there had been two summaries of facts. One, at the outset, detailed the charges as “Possession of offensive weapon and wilful damage x 2”. The second had a line through the reference to “wilful damage x 2” but the body of the document remained the same.

[8] The summary of facts referred to Mr Hubert brandishing a tomahawk outside the complainant’s address, then using the tomahawk to smash the front window of the house and a window in the front door and, a short time later, throwing his tomahawk and making a hole in the front passenger door of a vehicle belonging to some people who arrived at the address.

[9] Mr Starling suggested that, in some way, given the withdrawal of the charges of wilful damage and that no new summary of facts had been prepared, this Court should not assume the summary represented Mr Hubert’s acceptance of what had actually occurred. He could not offer any explanation as to how it appeared. Mr Hubert accepted the circumstances of the offending remained as set out in the summary of facts which remained before the Court.

[10] Counsel for the Police, Ms Henderson, advised me that she had spoken with Mr Matthews who had been counsel for Mr Hubert at the time he pleaded guilty to the possession of an offensive weapon charge and when he was eventually sentenced. Mr Matthews told Ms Henderson that it was agreed with the Police that, if the two wilful damage charges were withdrawn, guilty pleas could nevertheless be entered on the basis of the summary of facts as it stood.

[11] Mr Starling objected to my being given this information in the absence of Mr Hubert waiving privilege in relation to his communications with counsel. There was no basis for that objection, given Mr Matthews had told Ms Henderson not of communications he had with Mr Hubert but of communications he had with the Police. Given counsel’s obligations as an officer of the Court, it was appropriate for Ms Henderson to make the enquiries she did of Mr Hubert’s former counsel and to advise me of what she had been told. It was an enquiry which Mr Hubert’s counsel should also have made if she was going to make an issue as to any detail in the summary of facts. There was nothing in Ms Drummond’s written submissions to suggest that she had made such an enquiry. In her written submissions, she did not suggest the circumstances of the offending were other than as set out in the summary which was on the Court file. Mr Starling said he had made no such enquiry.

[12] I proceed on the basis the summary of facts sets out what happened in connection with the incident resulting in the offensive weapon charge which Mr Hubert pleaded guilty to. There was nothing sinister in the Police dealing with the withdrawal of charges by formally withdrawing those particular charges and then striking out the reference to them in the summary of facts. With the summary of facts presented in that way, it was clear as to the basis on which the Court should proceed. It is not unusual and it can be quite appropriate for the Police to proceed with just one or more of the charges that might have been appropriate given all the details of the offending. Even if the summary discloses facts that are not the subject of a charge when they could have been, the Court may nevertheless have regard to those facts when arriving at the appropriate sentence.

[13] I note also that in Mr Hubert’s personally completed notice of appeal, the ground of appeal was not that he had been wrongly treated as responsible for breaking the car window and house windows but simply that he had not faced charges in relation to that.

[14] I thus consider this appeal on the basis of the circumstances connected with the offending as set out in the summary of facts to which I refer.

[15] The issue is whether, on the basis of the summary, the Judge could require Mr Hubert to pay reparation for the damage done on the basis it was damage to property caused “through or by means of” Mr Hubert’s offence of being in possession of the tomahawk as an offensive weapon.

[16] In her submissions for the Crown, Ms Henderson referred me to the judgment of the Court of Appeal in R v Donaldson.² There, the Court considered what was meant by the words “through or by means of an offence of which the offender was convicted”, as used in s 32(1) of the Sentencing Act.

[17] The Court of Appeal stated:

[36] ... we endorse the viewpoint that reparation is to be approached in a broad commonsense way, and resort to refined causation arguments is not to be encouraged.

[37] The statutory phrase is in two disjunctive parts. The first is damage or harm caused “through” an offence. And the second is damage or harm caused “by means of” an offence. “Through” conveys a more direct connection between the offence and the damage or harm. In the present case, for example, damage to the premises in obtaining entry, or loss arising from the theft of items, would be caused through the offence itself.

[38] By contrast, the words “by means of” the offence contemplate a less direct association with the burglary. They capture damage or harm closely associated with the offence, although not necessarily arising from the very acts which constitute the definition of the offence. For example, a receiver who takes possession of a stolen car, and proceeds to dismantle it, causes damage or loss by means of the offence, albeit through actions committed when the offence was completed. Likewise in this case the fire damage was caused in close connection with the burglary and therefore, by means of it.

[18] In Donaldson, four offenders had been involved in breaking into rugby clubrooms. During that burglary, a fire was started. Two appellants were ordered to pay approximately $44,000, a major portion of the loss suffered as a result of the fire. Although they were found guilty of burglary, they were discharged on counts of arson on the basis that, although they caused the fire, there was no direct evidence which could enable the Crown to prove they had the necessary mens rea.

[19] Both in relation to the burglary, of which the appellants had been found guilty, and with the example the Court of Appeal referred to of a receiver who takes possession of a stolen car but then later dismantles it, the Court of Appeal found damage could be closely associated with an offence although occurring after the acts constituting the offence had been committed or, as the Court of Appeal put it, “not necessarily arising from the very acts which constitute the definition of the

offence”.³

[20] In this instance, Mr Hubert committed the offence when he had possession of the tomahawk but his using the tomahawk to smash windows in the house and then to throw at the vehicle, putting a hole in the door window, was closely associated with that offence. To hold otherwise would be to defy “common sense”.

[21] The Judge was thus quite entitled to sentence Mr Hubert on the basis the circumstances of his offending, in relation to the charge of being in possession of an offensive weapon, were set out in the summary of facts which was before the Court to which no exception was taken. On the basis of that summary of facts, it was appropriate for the Judge to order him to pay reparation for the damage done with the tomahawk, despite the Police withdrawal of those two wilful damage charges.

[22] The appeal is accordingly dismissed.

Solicitors:

Michael Starling, Barrister, Christchurch

Raymond Donnelly & Co., Christchurch.