Frecklington v Police

[2015] NZHC 3111

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2015-054-1824 [2015] NZHC 3111

BETWEEN

CAMERON THOMAS

FRECKLINGTON Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:

7 December 2015

(Heard at Wellington via AVL)

Counsel:

M Andrews for Appellant
D R Davies for Respondent

Judgment:

8 December 2015

JUDGMENT OF SIMON FRANCE J (Appeal against sentence)

[1]      Mr Frecklington appeals the reparation component of a sentence passed in relation to careless driving.  An order of $4,000 was made, it being the value of the other car involved in the incident.   The figure was contained in a victim impact statement which says the car was written off.1

[2]      On  appeal  it  is  submitted  the  figure  was  unverified  and  excessive.   An alternative valuation of $700 is proffered.  In response, an affidavit is tendered from a person  who  a week  before  the  accident  sold  the vehicle to  the victim.   The purchase price was $3,950, made up of $3,500 cash, plus some goods.

[3]      Notwithstanding   this   updated   information,   the   appeal   is   maintained. Concerning the quantum Mr Andrews submits it is still excessive, having regard to

the independent valuation he obtained.  He also queries whether a proper inquiry was

1      NZ Police v Frecklington [2015] NZDC 22977.

FRECKLINGTON v POLICE [2015] NZHC 3111 [8 December 2015]

made into whether the car could be repaired, noting the summary of facts refers to

“moderate damage”.

[4]      It is also submitted that there was scope to consider whether the driver of the other vehicle contributed to the accident, and whether an order of that size should be imposed on an unemployed teenager such as Mr Frecklington.

Decision

[5]      I agree aspects of the initial decision were unsatisfactory.  There should have been consideration of means.  Further, the value was identified in a victim impact statement which was produced late in the sentencing process, and gave little information as to how the monetary figure was identified.

[6]      It appears that since the appeal was filed, efforts to obtain further information from the owner of the car were unsuccessful.  However, the vendor was contacted and provided the affidavit referred to.

[7]      Turning first to quantum, I see no basis to go behind the affidavit.   The transaction involved occurred but a week before the accident, and provides a sensible basis on which to fix value.  The circumstances of the accident where the victim’s car hit a pole which crashed on the roof are supportive of the claim in the victim impact statement that the car was written off.

[8]      That said, legitimate questions were raised on appeal.   The prosecuting authorities have made efforts, but not been assisted by the victim.  It is not known what happened to the car, nor whether any payment was made for the wreck.  The summary of facts did refer to moderate damage.  However, it must be recalled these are often drafted early in the process.   I consider some modest adjustment to the apparent value is appropriate in these circumstances and intend to alter the award to

$3,200.

[9]      As for ability to pay, no information is provided to the Court about this.  It was not a ground of appeal.  However, the situation of the defendant of itself gives rise to concerns about the capacity to pay a lump sum.  I consider the appropriate

approach is to make an order under s 36(1)(c) of the Sentencing Act 2002 directing the Registrar to determine the conditions of payment.

Outcome

[10]     The reparation order is quashed and in its place I make an order in the sum of

$3,200.

[11]     I direct the Registrar to fix the conditions of payment.

Simon France J

Solicitors:

M Andrews, Barrister, Palmerston North

Ben Vanderkolk & Associates, Crown Solicitors, Palmerston North