Hilton v Police - [2018] NZHC 1757

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-153

[2018] NZHC 1757

BETWEEN
HEATHER HILTON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 July 2018

Appearances:

N Woods for Appellant

B Charmley for Respondent

Judgment:

16 July 2018

(ORAL) JUDGMENT OF LANG J

[on appeal against sentence]

HILTON v NEW ZEALAND POLICE [2018] NZHC 1757 [16 July 2018]

[1] Following a defended hearing in the District Court, Ms Hilton was found guilty of a charge of carelessly operating a motor vehicle causing injury. On 16 April Judge McGuire ordered her to pay reparation to the victim in the sum of $3,000 and ordered her to perform 80 hours community work. He also imposed the mandatory period of disqualification of six months.1

[2] Ms Hilton appeals against the sentence. She contends the Judge should not have required her to make an emotional harm payment to the victim. She also contends the Judge should not have sentenced her to 80 hours community work. Her overall submission is that the sentence was manifestly excessive.

The facts

[3] The facts that gave rise to the charge are relatively straightforward. At about 6 pm on 9 January 2017 Ms Hilton was the driver of a motor vehicle that was turning right out of Orakau Road into Grey Avenue, Mangere. The victim was travelling on a motorcycle in an easterly direction on Grey Avenue towards the intersection with Orakau Road. Ms Hilton failed to see the motorcyclist approaching and entered the intersection. The victim was unable to avoid colliding with Ms Hilton’s motor vehicle. He slid across the road and suffered significant injuries as a result.

[4] Ms Hilton’s explanation for the collision was that the sun was in her eyes and she was unable to see the motorcyclist approaching until the last second. By that stage it was too late for her to take evasive action.

Reparation

[5] When the Judge found Ms Hilton guilty, he directed that the pre-sentence report was to address the possibility of Ms Hilton being required to make an emotional harm payment to the victim. The pre-sentence report contained the following information about Ms Hilton’s financial position:

… Ms Hilton said she is unable to pay the victim for damages due to her lack of financial credit, her low wages and her belief that ACC can meet the expenses.

1 New Zealand Police v Hilton [2018] NZDC 10656.

… Ms Hilton is a 52 year old single Caucasion woman. She has no children and has never married. She has a 48 year old brother. Ms Hilton owns her property at Flat/5/56 Ireland Road, Panmure.

… Ms Hilton has [been] employed by Geneva Homecare as a Health Care Support Worker since 2015. She showed the author proof of her income and official Business Card. Ms Hilton had no issues regarding her low salary however she is limited with what she can purchase and leisure activities.

[6]The Judge dealt with the issue…

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 Hilton v Police

Details

AGLC: Hilton v Police [2018] NZHC 1757
Case: [2018] NZHC 1757
Decision Date: 16 July 2018

CaseChat Overview and Summary

The appellant, Heather Hilton, appealed against the sentence imposed on her by Judge McGuire in the District Court, following her conviction of carelessly operating a motor vehicle causing injury. The appellant was ordered to pay reparation of $3,000 to the victim, perform 80 hours of community work, and disqualified from driving for six months. The appeal was against the reparation and community work orders, which the appellant submitted were manifestly excessive. The respondent argued that the orders were appropriate in all circumstances.

The court examined whether the Judge had sufficient information before him to require the appellant to make an emotional harm payment in the sum of $3,000. The court noted that the Judge was aware that the appellant was working and earning a low wage, but that she owned her own home. However, it now transpires that she lives in her mother’s home. The court considered that the Judge was entitled to proceed on the basis that, although an order for reparation would cause the appellant hardship, such hardship would not be undue. The court concluded that the overall level of reparation to be too high in the present case having regard to the appellant’s means. An appropriate order for reparation would have been in the region of $1,800. The court also considered the imposition of 80 hours of community work. The court held that the sentence was not outside the range the Judge was entitled to impose.

The appeal against sentence was allowed to the extent that the emotional harm payment was reduced from $3,000 to $1,800. In all other respects, the appeal against sentence was dismissed.

Orders