Davies v Police - [2009] NZSC 47

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IN THE SUPREME COURT OF NEW ZEALAND
SC 83/2007
[2009] NZSC 47
BETWEENPETER MILES DAVIES

Appellant

ANDNEW ZEALAND POLICE

Respondent

Hearing:5 August 2008

Court:Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ
Counsel:G S M McDonald and C R Gates for Appellant

D B Collins QC Solicitor-General, A M Powell and C Brown for Respondent

Judgment:25 May 2009

JUDGMENT OF THE COURT

AThe appeal against the sentence of reparation is allowed.
BThe sentence of reparation imposed in the District Court is set aside and in substitution a sentence of reparation of $8,945 is imposed.
CAny question of costs is reserved. If costs are sought, the appellant has 10 days to file a memorandum seeking them. The respondent will have a further 10 days to reply.

REASONS

Para No

Elias CJ, Blanchard and Anderson JJ  [1]
Tipping J  [38]
McGrath J  [50]

ELIAS CJ, BLANCHARD AND ANDERSON JJ
(Given by Elias CJ)
[1] The appellant was convicted in the District Court at Christchurch of operating a vehicle carelessly and causing injury when towing a trailer with an insecure load. A mattress on the trailer fell off, causing a collision in which a cyclist was injured. The charge of careless driving causing injury carries maximum penalties of imprisonment for a term not exceeding three months or a fine not exceeding $4,500, together with mandatory disqualification for six months or more.[1] In addition to these penalties, it was open to the Judge to impose a sentence of reparation under s 32(1) of the Sentencing Act 2002. Such reparation is paid to victims of the offending in respect of their loss or damage to property, emotional harm, and any loss or damage consequential on emotional or physical harm or loss of or damage to property. In the present case, the cyclist fell within the definition of “victim” contained in s 4 of the Sentencing Act because she suffered physical injury and damage to property “through, or by means of, an offence committed by another person”.[2] She was therefore someone in respect of whom the sentencing Judge was able to order reparation under s 32.
[1]Sections 8 and 38 of the Land Transport Act 1998.
[2]It is unnecessary to determine whether she also fell within the definition of “a person against whom an offence is committed by another person” or whether that definition is confined to victims of advertent crimes.
[2] Judge M J Green sentenced the appellant to make reparation totalling $20,500 and disqualified him for the minimum mandatory period of six months. The Judge imposed no additional fine, on the basis that, given the size of the reparation order, “it would be wrong to impose anything else by way of fine or any penalty other than the disqualification which must follow”.[3] Of the total reparation order of $20,500 imposed in the District Court, $7,000 was ordered in respect of emotional harm.[4] The balance covered loss identified in the victim impact statement as including:…

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 Davies v Police

Details

AGLC: Davies v Police [2009] NZSC 47
Case: [2009] NZSC 47
Decision Date: 25 May 2009

CaseChat Overview and Summary

This case concerned a challenge to a sentence of reparation imposed by the District Court. The appellant had been convicted of careless driving causing injury and was sentenced to a term of imprisonment and a sentence of reparation of $20,500. Of that sum, $11,555 was ordered in respect of lost earnings. The appellant appealed the sentence of reparation on the basis that the District Court was not entitled to order reparation in respect of lost earnings because the victim had an entitlement to compensation under the Injury Prevention, Rehabilitation and Compensation Act 2001. The Supreme Court allowed the appeal and set aside the reparation order. The court held that loss of earnings consequential on physical harm is not able to be the subject of a sentence of reparation under s 32(1) of the Sentencing Act 2002. It is loss in respect of which the victim has entitlements within the meaning of s 32(5) and is therefore excluded from the sentence by that provision, even if the amount payable by the Accident Compensation Corporation does not meet the full extent of the loss.

Orders