D v Police HC Christchurch Cri-2006-409-203
[2006] NZHC 1627
•19 December 2006
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2006-409-000203
D
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 23 November 2006
Counsel: C R Gates for Appellant
M N Zarifeh for Respondent
Judgment: 19 December 2006
JUDGMENT OF PANCKHURST J
Reparation to top-up a weekly compensation entitlement
[1] The issue in this appeal is whether it was competent of a District Court Judge to award reparation of almost $12,000 to compensate a complainant for lost income, not covered by weekly compensation payments under the Injury Prevention, Rehabilitation, and Compensation Act 2001. Under that Act weekly compensation is payable up to 80% of the claimant’s weekly earnings. In ordering reparation pursuant to s32 of the Sentencing Act 2002 may a Judge award a sum designed to make up for the 20% earnings shortfall? The point is one of some general
significance.
D V NZ POLICE HC CHCH CRI-2006-409-000203 19 December 2006
The background
[2] The appellant was charged that on 20 November 2005 he operated a vehicle carelessly on Dyers Pass Road and caused injury to the complainant. He was convicted on that charge in the District Court on 26 September 2006.
[3] Mr D was driving down Dyers Pass Road towards Governors Bay while towing a trailer. The trailer had elevated sides in the form of a fitted cage which could be affixed to the trailer. One item on the trailer was a double mattress. It was not tied down. As Mr D proceeded down the hillside the mattress became airborne and landed on the roadway.
[4] The complainant was likewise proceeding downhill towards Governors Bay, but on a bicycle and accompanied by a friend. The presence of the mattress on the roadway caused her to crash. She sustained serious injuries, in particular head injuries. These in turn prevented the complainant from working for about five months, after which she recommenced work but only for a few hours each day.
[5] In the result the complainant provided a victim impact statement to the Court in which she claimed:
Shortfall in earnings $15,894
Uninsured damage to cycle and cycling equipment $1,633
Miscellaneous medical expenses $312
$17,839
[6] In imposing sentence Judge M J Green awarded a round sum of $13,500 “in respect of the various losses which are set out in the victim impact report”. He made a further separate award of $7,000 for emotional harm to arrive at a total reparation figure of $20,500.
[7] This appeal is directed to the reparation in relation to shortfall in personal earnings. On the appellant’s behalf Mr Gates submitted that s32(5) of the Sentencing Act 2002 proscribed reparation in respect of any consequential loss where there was an entitlement under the Injury Prevention, Rehabilitation, and Compensation Act (the Compensation Act). Counsel contended that, even although compensation had only been paid up to 80% of the complainant’s actual weekly earnings, it was not competent of Judge Green to order reparation in relation to the
20% earnings shortfall.
The competing arguments
The key section
[8] Before I refer to the arguments mounted by Mr Gates and Mr Zarifeh it is helpful to refer to s32 of the Sentencing Act 2002 which is the key provision in relation to the present issue. The section relevantly provides:
Sentence of reparation
(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.
(3)In determining whether a sentence of reparation is appropriate or the amount of reparation to be made for any consequential loss or damage described in subsection (1)(c), the court must taken into account whether there is or may be, under the provisions of any enactment or rule of law, 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.
(4)Subsection (3) applies whether or not the right to bring proceedings or make the application has been exercised in the particular case, and whether or not any time prescribed for the exercise of that right has expired.
(5)Despite subsections (1) and (3), the court must not order the making of reparation in respect of any consequential loss or damage described in subsection (1)(c) for which the court believes that a person has entitlements under the Injury Prevention, Rehabilitation, and Compensation Act 2001.
(8) Nothing in section 320 of the Injury Prevention, Rehabilitation, and
Compensation Act 2001 applies to sentencing proceedings. (emphasis added)
The last subsection operates to negative s320, by which the Accident Compensation Corporation has a right to be heard in any proceeding in which a question arises as to whether a person “has suffered personal injury for which he or she has cover” under that Act. A reparation hearing, therefore, is an exception to that right.
[9] Because of its importance to Mr Gates’ argument, I shall also set out the operative part of s317 of the Compensation Act:
Proceedings for personal injury
(1) No person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand, for damages arising directly or indirectly out of -
(a) personal injury covered by this Act; or
(b) personal injury covered by the former Acts.
Argument for the appellant
[10] Mr Gates stressed the wording of s32(5), namely that reparation may not be ordered where the Court “believes” that a person has “entitlements” under the Compensation Act. These were said to be broad concepts which should be accorded a liberal interpretation. Counsel then referred to s317(1), which was characterised as a pivotal provision of the Compensation Act, and as effecting a prohibition referable to “any enactment”, including therefore the Sentencing Act.
[11] Counsel questioned an observation contained in Adams on Criminal Law
(vol 2) para SA 32.06 to the effect that reparation may be ordered for the remaining
20% of earnings not covered by the accident compensation scheme. There was no precedent which adequately supported this observation, nor commentary which analysed and justified the conclusion reached.
[12] With reference to the word “entitlements” in s32(5) Mr Gates submitted that an entitlement was not synonymous with full cover. Hence, he argued the word “entitlements” was deliberately used to signify that so long as there was an entitlement (albeit 80% of total earnings) reparation may not be ordered for that type of loss.
[13] This interpretation was said to preserve the integrity of the social contract upon which the Compensation Act is based. That is, a comprehensive no fault compensation scheme was brought into existence, but on the understanding that the Act was comprehensive in relation to the right to recover for personal injury. By interpreting s32(5) as extending to the earnings shortfall (the 20%), the scheme of the Compensation Act was preserved. Moreover, this interpretation avoided the anomaly that generally victims of personal injury only receive earnings-related compensation up to 80% of their normal earnings, but victims of personal injury caused by a criminal act may receive 100% compensation (assuming the perpetrator had the means to pay reparation).
The respondent’s argument
[14] Mr Zarifeh began by drawing a distinction between civil proceedings for damages arising from personal injury on the one hand, and reparation under the Sentencing Act on the other. Reparation, he suggested, was a key method by which one of the purposes of the Act, “to provide for the interests of victims of crime” (s3(d)), was to be achieved. Hence, throughout the Act there was a statutory focus upon payment of reparation, wherever possible.
[15] Against this statutory backdrop Mr Zarifeh submitted that s32(5) was to be read as a prohibition upon “double dipping”. That is, victims of crime could not receive both entitlements under the Compensation Act and reparation, for the same loss. Given, however, that weekly earnings compensation is restricted to 80%, s32(5) had no application to an earnings shortfall. No issue of double payment arose.
[16] Not only did this purposive interpretation promote a key purpose of the Sentencing Act, but it did no violence to the interpretation of s317(1). Victims of crime do not “bring proceedings” for “damages arising … out of personal injury …”. Rather, in the context of a prosecution reparation may be ordered as part of the sentence and in order to restore the position of the victim, without any need for a proceeding initiated to that end.
Analysis: may reparation be ordered for the earnings shortfall?
Section 317(1) of the Compensation Act
[17] I regard this subsection as a convenient starting-point. I accept Mr Gates’ submission that this is a key provision of the Act. It effects a bar on the initiation of proceedings for personal injury.
[18] The rationale for the bar, or prohibition, is evident from s3 of the Act which relevantly provides:
Purpose
The purpose of this Act is to enhance the public good and reinforce the social contract represented by the first accident compensation scheme by providing for a fair and sustainable scheme for managing personal injury that has, as its overriding goals, minimising both the overall incidence of injury in the community, and the impact of injury on the community (including economic, social, and personal costs), through –
…..
(d) ensuring that, during their rehabilitation, claimants receive fair compensation for loss from injury, including fair determination of weekly compensation and, where appropriate, lump sums for permanent impairment:
[19] However, I am also in agreement with Mr Zarifeh’s submission that there is no conflict between s317(1) and s32(5). The former proscribes the initiation of proceedings for damages for any personal injury covered by the Compensation Act. But a proceeding for damages is not involved where reparation is ordered. The order is made in a criminal context and is a sentence: s32(1).
Section 32 of the Sentencing Act
[20] It is to be remembered that s32(1) excludes reparation for personal injury per se. Reparation is restricted to three situations, being:
[a] property loss or damage, [b] emotional harm, and
[c] loss or damage consequential on emotional harm, or physical harm, or property loss/damage.
As can be seen reparation is not directly available for physical harm to the person (rather only emotional harm to the person), but where physical harm occasions consequential loss then there is scope for a reparation order.
[21] The prohibition against reparation in s32(5) is to be construed against this background. It is consequential loss or damage arising from either emotional harm to the person, or physical harm to the person, which may not be the subject matter of reparation if the Court believes the person has entitlements under the Compensation Act for that consequential loss/damage.
[22] This far the scheme of s32 is clear enough. Reparation may not be ordered for physical harm to the person, because compensation for such harm is the preserve of the Compensation Act. But, where physical harm (or emotional harm) occasions consequential loss, then reparation may be awarded. But, no doubt to avoid double dipping, reparation may not be ordered where the Court believes the person has entitlements under the Compensation Act for that consequential loss or damage.
What are “entitlements”?
[23] This question is at the heart of the issue. I think the word “entitlements” was used in s32(5) because it has a defined meaning under the Compensation Act. Indeed, it is interesting to note that when the Sentencing Bill was first introduced clause 29(2B) provided that there could not be reparation for loss or damage consequential on any emotional or physical harm to the victim “for which the victim has cover under the Injury Prevention, Rehabilitation, and Compensation Act 2001” (emphasis added). Clause 29 was amended following the Select Committee stage by adoption of the present formula:
for which the Court believes that a person has entitlements under …
[24] The reason for the change is obvious enough. “Cover” and “entitlements” are discrete and distinct concepts under the Compensation Act. Part 2 of the Act deals with “Cover”. For present purposes I think it is sufficient to refer to s20 which relevantly provides:
Principles
Cover for personal injury suffered in New Zealand (except mental injury caused by certain criminal acts)
(1) A person has cover for a personal injury if -
(a) he or she suffers the personal injury in New Zealand on or after 1
April 2002; and
(b) the personal injury is any of the kinds of injuries described in section 26(1)(a) or (b) or (c) or (e); and
(c) the personal injury is described in any of the paragraphs in subsection (2).
As can be seen, cover for personal injury exists where three elements are satisfied. The injury must occur in New Zealand, be of a kind which is recognised under the Act and be caused as described in s20(2) (ie by accident to the person, including treatment injury, work-related injury etc).
[25] By contrast “entitlements” are a separate concept and the subject-matter of Part 4 of the Act. The term is defined in the interpretation section, s6, to mean “the entitlements described or referred to in section 69”, which section provides:
Entitlements provided under this Act
(1) The entitlements provided under this Act are -
(a) rehabilitation, comprising treatment, social rehabilitation, and vocational rehabilitation:
(b) first week compensation:
(c) weekly compensation (emphasis added)
(d) lump sum compensation for permanent impairment:
(e) funeral grants, survivors’ grants, weekly compensation for the spouse or partner, children and other dependants of a deceased claimant, and child care payments.
For completeness, I note that s6 also contains a definition of “weekly compensation”, being “compensation for loss of earnings …” as defined in various clauses of Schedule I to the Act. Clause 32(3) of the Schedule contains the limitation on weekly compensation, namely that it is “payable (to) 80% of the claimant’s weekly earnings …”.
The meaning of “entitlements” in s32(5)
[26] Despite the accuracy of the definition of entitlements in the Compensation Act, this does not simply resolve the meaning of the word “entitlements” in s32(5). It remains open to interpret “entitlements” as restricted to the actual provision under the accident compensation scheme, so that the 20% earnings shortfall is not excluded from a sentence of reparation. Equally, “entitlements” can be viewed in a more generic sense, so that as long as there is some entitlement, the statutory bar in s32(5) applies and there is no ability to order reparation in relation to the earnings shortfall.
[27] Either viewpoint is tenable. In that circumstance I am influenced by a further section in the Sentencing Act, to which reference has not so far been made. That is s33(1) which provides:
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:
(a)in the case of loss of or damage to property, the value of that loss or damage and any consequential loss or damage:
(b) in the case of emotional harm, the nature of that harm and the
value of any consequential loss or damage:
(c) in the case of any loss or damage consequential on physical harm, -
(i) the nature and value of the loss or damage; and
(ii) the extent to which the person who suffered the loss or
damage is likely to be covered by entitlements under the
Injury Prevention, Rehabilitation, and Compensation Act
2001:
(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. (emphasis added)
[28] The ability of a Judge to obtain a reparation report as to the “extent” to which a person is “likely to be covered by entitlements” under the Compensation Act indicates to me that an entitlement per se does not trigger the statutory bar in s32(5). Of course it is to be borne in mind that there are a range of entitlements under that Act, other than an entitlement to weekly compensation. But even so, s33(1) gives express recognition to the extent of likely cover from entitlements as a relevant factor in fashioning a sentence of reparation. This, I think, suggests that
“entitlements” should be construed narrowly, rather than in the more generic sense for which Mr Gates contended.
[29] I am also influenced to this conclusion on the basis that, where two meanings can be given to “entitlements” in s32(5), a meaning which favours an award of reparation is to be preferred, other things being equal. Reparation is accorded significant emphasis in the Sentencing Act. It is the first sentence provided for in Part 2 of the Act, under the heading “Monetary penalties”. Its priority is above that of fines. This is confirmed by s35(2) under which, following imposition of a sentence of both reparation and a fine, payments received must be applied first in satisfaction of the sentence of reparation.
[30] Given this primacy, I am satisfied that it is appropriate to interpret the word “entitlements” in s32(5) in a manner which advances attainment of the statutory purpose of providing for the interests of the victims of crime. Put another way, s32(5) should not be construed to exclude reparation for the earnings shortfall unless its language clearly dictates that outcome. In my view it does not.
Conclusion
[31] For the above reasons I am of the view that a Judge may award reparation for the 20% earnings shortfall. The appeal is therefore dismissed.
[32] Costs are not appropriate. This appeal was in the nature of a test case. The point of construction is finely balanced and it was appropriate for the appeal to be
brought.
Solicitors:
Phillips Fox, Auckland for Appellant
Raymond Donnelly & Co, Christchurch for Respondent
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