Alexander v Police

[2015] NZHC 2730

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI 2015-418-6 [2015] NZHC 2730

BETWEEN

MATTHEW ALLAN ALEXANDER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	5 November 2015
Counsel:	E Bradley for Appellant S Burdes for Respondent
Judgment:	5 November 2015

(ORAL) JUDGMENT OF HEATH J

Solicitors: Crown Solicitor, Counsel:

E Bradley, Greymouth

ALEXANDER v NEW ZEALAND POLICE [2015] NZHC 2730 [5 November 2015]

Background

[1]      Mr Alexander appeals against a sentence imposed in the District Court at

Greymouth on 6 October 2015.1

[2]      Mr Alexander pleaded guilty to a charge of operating a vehicle on a road carelessly, and causing injury to a named female complainant.  The driving occurred at Kirwee, in the course of travelling from the West Coast to Christchurch.

[3]      The appeal is focussed on an order for emotional harm reparation that was made. The Judge ordered that reparation be paid in the sum of $5000, by instalments of $100 per fortnight.  Mr Alexander was also disqualified from holding or obtaining a driver licence for a period of six months from the date of sentence.

Facts

[4]      This is one of those sad cases in which a minor error of judgment has had tragic consequences.

[5]      At about 8.50am on 9 May 2015, the vehicle that Mr Alexander was driving approached a gentle right hand bend on the West Coast Road, between Darfield and Kirwee.   The corner has a designated recommended speed of 75 km/h, which is visible to drivers approaching it.

[6]      The vehicle that Mr Alexander was driving crossed into the grass verge, over to the left hand side of the bend.   He over-corrected the vehicle, crossed the centreline.  The vehicle rolled down the road several times before coming to rest on the passenger’s side.  The female passenger was trapped in the vehicle.  She had to be freed with the aid of the “jaws-of-life” by attending fire personnel.  Mr Alexander was able to free himself from the vehicle.

[7]      Both were air-lifted to Christchurch Hospital.   The injuries suffered by the female passenger were many, varied, and serious: scalping of the forehead, back and

1      New Zealand Police v Alexander [2015] NZDC 20985.

neck bone fractures and a badly injured left hand are but a few of the injuries suffered, but give a flavour of the injuries caused by the crash.

Victim impact statement

[8]      A victim impact statement was before the District Court on sentence, which identified fully the nature of the injuries suffered.   In dealing with the emotional consequences of the incident the victim referred to the period since the accident as “very stressful and challenging”.   The events have affected her, by being nervous whenever a passenger in a car.   She also considers that (more generally) her self- confidence has been dented severely.

Sentencing in the district Court

[9]      Sentencing took place before Judge Neave.  His Honour was mindful of the nature of the error that had led to the seriousness of injuries.  He was careful to focus his attention on the nature of the act which led to the accident and injuries.   The Judge  pointed  out  that  there  was  no  apparent  reason,  (such  as  consumption  of alcohol  or  poor  weather  conditions)  to  explain  why the  accident  happened.    It appears that it was simply a misjudgement.

[10]     The Judge was told that Mr Alexander was in full-time employment and willing to offer reparation by way of emotional harm.   It was accepted that the amount to be paid would take some time to pay off.   Mr Alexander had been prepared to attend a restorative justice meeting but, for understandable reasons, the victim was not prepared to do so.

[11]     Mr Alexander  is  to  be  given  credit  for  his  willingness  to  attend  such  a meeting and for his early acceptance of responsibility for the offending.  The offer to make reparation for emotional harm must be treated in the same way.

[12]     In determining that a significant amount of reparation was required, Judge

Neave said:

[6]      Taking  all  those  factors  into  account  I  agree  with  Mr  Bradley. Significant amount of emotional harm reparation and disqualification is the

appropriate penalty.   That amount of emotional harm needs to reflect the extent of the injuries but also your means.  Striking the balance as best I can, you are convicted and sentenced to pay emotional harm reparation of $5000 by instalments of $100 per fortnight.  The first payment on 13 October and you are disqualified from holding or obtaining a driver’s licence for six months starting today. That is as low as I am able to go in the circumstances.

Analysis

[13]     The appeal has identified a problem that can easily arise when reparation issues are addressed in the course of a sentencing in a busy list.  While from what Mr Bradley, for Mr Alexander, has told me, the Judge was aware that Mr Alexander was of modest means and agreed to pay $1000 in reparation, there does not appear to have been any discussion about ability to pay on a weekly or fortnightly basis.

[14]     Mr Bradley has produced today a number of financial records designed to demonstrate that Mr Alexander’s means will not enable him to meet the order made. Mr Burdes, for the Police, has offered a contrary view in terms of the discretionary income available after taking into account average fortnightly pay and expenses.  I do not propose to go into those issues at this stage.   The point of mentioning the discrepancy is to highlight why, in a case such as this, a reparation report is appropriate.

[15]     Section 32 of the Sentencing Act 2002 provides jurisdiction for the Court to impose a sentence of reparation if a person has suffered emotional harm as a result of an offence.  Section 33 deals with the topic of a reparation report.  Sections 33(1)(b), (d), (e) and (f) provides:2

33 Court may order reparation report

(1) If the court considers that a sentence of reparation may be appropriate, the court may order a probation officer, or any other person designated by the court for the purpose, to prepare a reparation report for the court in accordance with section 34 on all or any of the following matters:

…

(b)      in the case of emotional harm, the nature of that harm and the value of any consequential loss or damage:

2      Respectfully, I adopt the approach suggested by Mallon J in Staufer v R HC Nelson CRI-2010-

442-11 23 June 2010, at para [10].

…

(d)      the financial capacity of the offender:

(e)       the maximum amount that the offender is likely to be able to pay under a sentence of reparation:

(f)       the frequency and magnitude of any payments that should be required under a sentence of reparation, if provision for payment by instalments is thought desirable.

[16]     In directing a reparation report, a Judge is obtaining information about the financial capacity of the offender, the maximum amount that an offender is likely to be able to pay under a sentence of reparation and the frequency and magnitude of payments that can be made by instalments.

[17]     Obviously, the better the information before a sentencing Judge, the better the decision is likely to be.  In a case such as this, it was, in my view, an error for the Judge not to order a reparation report before determining that emotional harm should be paid in the sum of $5000, and the amount to be paid by instalments to meet it. Without that information, the Judge was not in a position to make a decision on the amount that should be ordered and how it should be paid.

[18]     In my view, it is appropriate to allow the appeal and to remit sentencing to the District Court.  The District Court will be able to obtain a reparation report so that sentencing can proceed as soon as possible.   I observe that, all things being equal, the amount of $5000 for harm of the type that has resulted in this case is not out of range.

[19]     I have made it clear to Mr Bradley that in the event of the appeal succeeding (as it has) all questions of sentencing will be open for the District Court Judge to consider.  While ability to pay must be taken into account, together with the impact of any payments ordered on the offender, there is a possibility that the amount that could be ordered legitimately may not be sufficient to mark the offending itself. That may require a combination of sentences to be imposed.  That will be something for the District Court Judge to determine.  I offer no comment one way or the other.

[20]     In allowing the appeal, I intend no criticism of Judge Neave.  The order was made in the course of a busy list and he was not provided with adequate information by counsel.    I suspect  the Judge and Mr Bradley were at cross-purposes when discussing Mr Alexander’s ability to meet an order.

Result

[21]     For those reasons, the appeal is allowed.   The sentence is remitted to the

District Court to consider afresh what response should be made to the offending.

[22]     I thank counsel for their assistance.

P R Heath J