Banning v Police - [2022] NZHC 2523

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-247

[2022] NZHC 2523

BETWEEN
HAYDEN TROY BANNING

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 3 October 2022

Appearances:

KK Harding for the Appellant

FJ McKechnie for the Respondent

Judgment:

3 October 2022

ORAL JUDGMENT OF FITZGERALD J

Solicitors: Meredith Connell, Auckland Counsel: K Harding, Auckland

BANNING v NZ POLICE [2022] NZHC 2523 [3 October 2022]

Introduction

[1] Mr Banning was convicted on charges of driving with excess breath alcohol1 and operating a vehicle carelessly.2 He lost control of his vehicle, scraped the side of a Honda Jazz, then hit a Subaru Legacy with enough momentum to force it on to the footpath.

[2] On 4 July 2022, Judge Skellern in the District Court at Auckland sentenced Mr Banning to four months’ community detention and 15 months’ intensive supervision with special conditions.3 She also made him subject to an alcohol interlock licence, and ordered him to pay reparation of $8,736.50 in relation to the Subaru Legacy and $500 in relation to the Honda Jazz.

[3] Mr Banning appeals solely in relation to the reparations ordered. He contends that, assuming the Judge made a reparation order in relation to the Subaru, the Judge erred in making that order as the order was not required because he is paying that amount directly to the insurer (Vero) in a civil settlement. Mr Banning also says that there is new information that makes the reparation order in relation to the Honda Jazz inappropriate, namely that the owner did not have to pay an insurance excess. He says the reparation orders should therefore be set aside entirely.

[4] The respondent contends that the reparation orders should be amended to make it clear that the amounts are payable to the respective insurers, and to change the amount relating to the Honda Jazz in light of the new information provided.

The offending

[5] On 18 March 2022 at approximately 9.15 pm, Mr Banning was driving a Toyota Landcruiser on a residential road on the North Shore.4 He lost control of his vehicle and scraped the side of a Honda Jazz. He then carried on and hit a Subaru

1      Land Transport Act 1998, s 56(1). Maximum penalty 3 months’ imprisonment or $4,500 fine. Minimum penalty 6 months’ disqualification.
2      Land Transport Act 1998, s 37(1). Maximum penalty $3,000 fine.
3      Police v Banning [2022] NZDC 15197.
4      Police summary of facts.

Legacy with enough momentum to force it on to the footpath. There was extensive damage to the Subaru Legacy and moderate damage to the Honda Jazz.

[6] Mr Banning was spoken to at the scene by police and exhibited signs of alcohol intake. Breath alcohol procedures were carried out and Mr Banning’s breath alcohol result was 953 micrograms of alcohol per litre of breath.

[7] In explanation, Mr Banning admitted to having three pints of Lion Red. He said he was moving out of the way for another…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Banning v Police

Details

AGLC: Banning v Police [2022] NZHC 2523
Case: [2022] NZHC 2523
Decision Date: 3 October 2022

CaseChat Overview and Summary

Hayden Troy Banning appeals against the reparation orders made in the District Court in relation to the damage caused to a Honda Jazz and a Subaru Legacy by his driving. The appeal concerns the need for the reparation orders to be set aside entirely. The appeal was heard by Fitzgerald J, who allowed the appeal and quashed the reparation orders. The Judge found that while it was not expressed in particularly clear terms, it was satisfied that the Judge did make a reparation order in relation to the Subaru Legacy. However, there being no express direction otherwise, the reparation orders have the effect of requiring Mr Banning to pay the reparations directly to the victims concerned, which would effectively amount to a windfall to them, and involve a double payment by Mr Banning. The Judge considered that the reparation orders ought to be quashed altogether because there is no evidence before the Court that the victims consent to the reparations being paid to the insurers, as required by the Sentencing Act, and because the insurers have chosen to engage with Mr Banning and come to a private arrangement with him that he will pay the amounts sought by way of instalments.

The Court noted that the appeal is allowed and the reparation orders made in the District Court are quashed. The Court did not consider it appropriate to amend the reparation orders to require that they are paid directly to the insurers. Instead, the Court found that the reparation orders ought to be quashed altogether because there is no evidence before the Court that the victims consent to the reparations being paid to the insurers, as required by the Sentencing Act, and because the insurers have chosen to engage with Mr Banning and come to a private arrangement with him that he will pay the amounts sought by way of instalments. The Court found that the need to hold Mr Banning accountable for his offending is suitably met by the other aspects of the sentence imposed by the District Court, and the private payment arrangements he has entered into with the two insurers.

Orders