Banning v Police
[2022] NZHC 2523
•3 October 2022
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 vehicle when he crashed his vehicle.
Sentencing in the District Court
[8]I need only focus on that aspect of the sentencing which addresses reparations.
[9] The Judge outlined the charges and the facts of the offending, noting that there was “relatively extensive damage” to the Subaru Legacy of $8,736.50.5 She said there was no reparation schedule in respect of the Honda Jazz, but the victim of that offending was insured, and it had been accepted that a reparation payment of $500 was appropriate and that Mr Banning was able to pay that immediately.
[10] Having dealt with all relevant matters in order to fix those aspects of his sentence which Mr Banning does not appeal, at the conclusion of her judgment, on the operating a vehicle carelessly charge, the Judge said that she had “made the reparation orders”, and in terms of the charge itself, Mr Banning was convicted and discharged.6
Approach on appeal
[11] An appeal against sentence must be allowed only if the Court is satisfied that there has been an error in the sentence imposed and that a different sentence should be imposed.7 A material error requiring correction will be established if the sentence is manifestly excessive or wrong in principle.8 The Court will not intervene where the
5 Police v Banning, above n 3, at [2].
6 At [16].
7 Criminal Procedure Act 2011, s 250.
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[31].
sentence is within the range that can properly be justified by accepted sentencing principles.9
The appellant’s submissions
[12] Ms Harding submits that there is a dispute as to whether the Judge actually made a reparation order in respect of the Subaru Legacy. She says the Judge merely referred to $8,736.50 as the amount of damage caused to the Subaru. Ms Harding submits that, had counsel realised the Judge had made such an order at sentencing, counsel would have asked the Judge to correct this.
[13] However, even if an order was made, Ms Harding submits that this was in error as the order was not required because Mr Banning is paying the value of the damage directly to Vero in instalments as a civil settlement. Ms Harding has produced on the appeal an email from Vero that confirms that, at least at the end of September 2022, Mr Banning has paid 13 instalments to Vero totalling $455.00.
[14] Ms Harding submits that as Vero has already paid the owner of the Subaru, there is no loss to the owner for the damaged caused. Despite this, the reparation order would require Mr Banning to pay reparation to the owner, and thus would be paying for the same damage twice. She notes that neither Vero, the police, nor the owner sought reparation. She argues that Vero clearly does not want to be paid through the court collection system and instead requires Mr Banning to pay the amount to it directly as a civil settlement.
[15] In respect of the reparation order for $500, Ms Harding submits that there is new information that makes this order inappropriate, namely that the owner of the Honda Jazz did not in fact have to pay the insurance excess. She submits that the $500 amount was based on a “guesstimate” by the parties of what an insurance excess might be, given the insurer, IAG, had not been in touch at the time of sentencing. It has since been confirmed that IAG waived that excess. Like the situation with the Subaru, Ms Harding notes that Mr Banning has entered into a payment plan with IAG for payment by him of a total of $3,667.40 by instalments (although I note from
9 At [36].
submissions made today that there may need to be some adjustment to that figure). Accordingly, Ms Harding submits there was no loss to the owner after all and again, IAG and Mr Banning have entered into a private arrangement regarding payment by Mr Banning.
The respondent’s submissions
[16] Counsel for the respondent submit that the Judge plainly made both reparation orders in issue, and that the orders should be amended first, to make the amounts payable to the insurers, and second, to change the amount relating to the Honda Jazz in light of the new information provided.
[17] In their written submissions, counsel refer to the scheme for reparation orders under the Sentencing Act, submitting that the 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 loss. Counsel highlight that where a court is lawfully entitled to impose a sentence or order of reparation, it must impose it unless it is satisfied the sentence or order would result in undue hardship for the offender, or that special circumstances would make it inappropriate.
[18] Counsel submit that case law suggests there are two ways in which the Court can deal with reparation orders where loss or damage is insured. The first is to order reparation payable directly to the victim’s insurance company, as in Kennett v Police.10 Counsel acknowledge that the High Court in Kennett did not explicitly refer to s 38 of the Sentencing Act 2002, which provides that every sum payable under a sentence of reparation must be paid to the person who suffered the harm, loss, or damage, or, with that person’s consent, to the person’s insurer. Counsel submit, however, that it can be inferred that the Court in Kennett was satisfied that the victim consented given he or she proceeded with the insurer paying out his or her claim. The second (less preferable) approach, counsel submit, is to take into account the amounts the offender has agreed to pay under s 10 of the Sentencing Act, as in Suckling v Police.11 Section 10(1) provides that the Court must take into account any offer of amends
10 Kennett v Police [2014] NZHC 231.
11 Suckling v Police [2019] NZHC 463.
(including financial) and any remedial action the offender proposes to take in relation to the circumstances of the offending.
[19] Counsel acknowledge that in determining whether a sentence of reparation is appropriate, the Court must take into account whether there is a right available to the person who suffered the loss or damage to bring proceedings in relation to that loss or damage. Counsel submit that this does not, however, preclude a sentence of reparation; it is merely a factor to be taken into account to determining whether reparation is the most appropriate remedy. Counsel submit that making the amended reparation orders on the appeal would be consistent with the need to hold Mr Banning accountable for his offending, and to ensure that he does pay the relevant amounts to the insurers.
[20] Alternatively, counsel submit that the matter should be remitted to the District Court for reconsideration of the sentence in light of the new matters before the Court, namely that Mr Banning is agreeable to paying the insurers directly for the amounts above.
Analysis
[21] First, while it is not expressed in particularly clear terms, which is unfortunate, I am satisfied the Judge did make a reparation order in relation to the Subaru Legacy. The Judge clearly had before her a reparation report in relation to the Subaru Legacy, confirming damage in the sum of $8,736.50, and contrasted that with the fact that there was no reparation schedule in relation to the Honda Jazz. It is in this context that the Judge’s comments at the conclusion of her judgment are to be read, namely that on the charge of operating a vehicle carelessly, she had “made the reparation orders” (plural). Further, it would have made no sense for the Judge to make a reparation order for $500 where there was no reparation report, yet not make a reparation order where there was a reparation report and more extensive damage. There is no suggestion Mr Banning argued undue hardship as a reason why the Judge might have ordered reparation in relation to one vehicle but not the other.
[22] Nevertheless, there being no express direction otherwise, at least on the face of the Judge’s sentencing notes, the reparation orders made by the Judge have the effect of requiring Mr Banning to pay the reparations directly to the victims concerned. Given both victims have already been paid out in full by their respective insurer, it would plainly be an error for Mr Banning to be ordered to make those payments directly to the victims, which would effectively amount to a “windfall” to them, and involve a double payment by Mr Banning.
[23] I am not satisfied, however, that the reparation orders ought to be amended on this appeal to require that they are paid directly to the insurers. Rather, I consider that the reparation orders ought to be quashed altogether. There are two reasons for this.
[24] First, there is no evidence before the Court that the victims consent to the reparations being paid to the insurers. As noted, pursuant to s 38 of the Sentencing Act, there must be consent from the victim before the Court can order reparations payable direct to an insurer. This is not a mere technicality, but a statutory requirement. I cannot accept the respondent’s submission that I should “infer” consent by the fact that the victims have accepted the pay-outs from their insurers. Rather, I expect the victims have simply not been approached about this matter. One cannot consent to something one does not know about.
[25] I accept that the reparations were ordered to be paid to an insurer in Kennett and there is no direct reference in the judgment to the victim consenting to this. It is not known, however, whether there was evidence of consent before the Court in Kennett, and that simply was not referred to in the judgment, or alternatively, it may have simply been an oversight that s 38 requires the victim’s consent. It also appears that the insurer was involved in the preparation of the reparation report in that case, which does not appear to be so in this case.
[26] The second reason why I do not consider it appropriate to amend the reparation orders is that pursuant to s 32(3) of the Sentencing Act, a court must take into account, when determining whether a reparation order is appropriate, whether there is or may be a right available to the person who suffered the loss or damage to bring proceedings or to make any application in relation to that loss or damage. This is relevant because
it is clear that each of the insurers concerned has 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.
[27] IAG noted with Mr Banning that absent such an arrangement, the matter would be referred to the Disputes Tribunal. Insurers have the right of subrogation, and thus could bring a claim against Mr Banning in the Disputes Tribunal in negligence, essentially “standing in the shoes” of the vehicle owner. No such proceedings have been commenced and I therefore proceed on the basis that IAG is satisfied that the arrangement it has in place with Mr Banning is sufficiently robust for it not to proceed to proceedings. Not all communications between Vero and Mr Banning are before the Court, but the Vero correspondence dated 23 May 2022 refers to earlier communications between the parties and to an agreement that the matter is “settled” by Mr Banning paying the amount due by way of instalment payments. Again, it appears that Vero is satisfied with this arrangement, and has not sought to take proceedings against Mr Banning before the Disputes Tribunal.
[28] IAG and Vero are sophisticated entities. Neither sought a reparation order in this proceeding (unlike the insurer in, for example, R v Tuhi12). Given the insurers’ rights against Mr Banning (by way of subrogation), the payment arrangements now in place and that they are part-performed (at least in relation to the Subaru Legacy), in the particular circumstances of this case I do not consider it necessary to “overlay” those arrangements with reparation orders. 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.
[29] For these reasons, the appeal is allowed. The reparation orders made in the District Court are quashed.
Fitzgerald J
12 R v Tuhi [2012] NZHC 2955, at [27] and [42].
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