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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:…
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