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 of reparation in the following terms:

[7]                   In addition to your disqualification you will be sentenced to 80 hours’ community work and because of your low wages the emotional harm payment order that I make will accordingly be reduced from what it should be so you are ordered in addition to make an emotional harm payment to the victim of

$3000. You may have to pay that by instalments.

[7]    On Ms Hilton’s behalf Mr Woods submits that the offending was at the lowest level of culpability. In addition, the Judge had no proper information before him regarding her means to make an emotional harm payment. Mr Woods therefore submitted the Judge erred in principle by imposing an emotional harm payment at all. In the alternative, he submits that a payment in the sum of $3,000 was manifestly excessive.

[8]    I  take  issue  with  Mr  Woods’  assessment  regarding  the  culpability  of  Ms Hilton’s offending. He is correct in saying that it reflects a momentary lapse of concentration and not a prolonged period of culpable conduct. Nevertheless, any motorist whose vision is obscured to any extent by direct sunlight is under an obligation to ensure he or she does not manoeuvre the vehicle being driven into a position where it may cause harm to others.

[9]    In the present case Ms Hilton was aware that, in order to make a right-hand turn, she had to cross the lane of the road occupied by oncoming traffic. She therefore had an obligation to ensure she did not manoeuvre her vehicle into that lane until such time as there was no oncoming traffic. As the Judge indicated, the motorcyclist was there to be seen. The simple fact is that Ms Hilton did not see him. That is not an uncommon situation, and it is one that the courts encounter regularly when dealing with the offence of careless driving causing injury or death. I do not put the culpability of Ms Hilton’s offending at the lowest level as does her counsel.

[10]   The real issue in the present case is whether the Judge had sufficient information before him to require Ms Hilton to make an emotional harm payment in the sum of $3,000. Section 32 of the Sentencing Act 2002 provides the jurisdiction for a sentence of reparation. It relevantly provides:

32       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.

…

[11]   Furthermore, s 12(1) of the Act expressly requires a court to impose a sentence of reparation where it is available unless this would cause undue hardship for the offender or the offender’s dependents.

[12]   In the present case the Judge knew from the pre-sentence report that Ms Hilton was working and was earning a low wage. The pre-sentence report also recorded, erroneously as it turns out, that Ms Hilton owned her own home. It now transpires that she lives in her mother’s home.

[13]   Against that background I consider the Judge was nevertheless entitled to proceed on the basis that, although an order for reparation would cause Ms Hilton hardship, such hardship would not be undue. Any person who earns a wage is able to pay reparation, albeit by reduced instalments. Mr Woods advises me that Ms Hilton is currently paying the reparation at the rate of $7.00 per week, although she expects this requirement to reduce to one under which she will be paying $5.00 per week.

[14]   Reparation orders are regularly made in relation to offenders of limited means. Such orders ensure offenders atone in part to the victims of offending. I therefore consider the Judge was entitled to proceed on the basis that Ms Hilton would not be caused undue hardship by being required to pay reparation. Indeed, I am not sure the

Judge was ever required to expressly consider that issue, because I have no way of knowing whether it was addressed during the sentencing hearing.

[15]   If the reparation is paid at the rate of $7.00 per week, it will take Ms Hilton approximately eight years to satisfy the order in full. She is currently 53 years of age. This means she will be making the payments until she is 61 years of age.

[16]   As counsel for the respondent accepts, most orders for reparation are made with a view to ensuring they are satisfied within approximately five years of the date on which the order is made.2 This ensures that offenders are not saddled with financial burdens from their offending for very lengthy periods.3

[17]   There are exceptions to that principle, and Ms Charmley has referred me to examples of these.4 Nevertheless, I consider the overall level of reparation to be too high in the present case having regard to Ms Hilton’s means. She earns $18,000 per annum from which she must meet her living expenses. Her recent conviction means she had a stand-down period from her job, and she has incurred legal fees in defending the charge and applying for a limited licence.

[18]I consider an appropriate order for reparation would have been in the region of

$1,800. This would enable Ms Hilton to satisfy the order within five years based on her current payments.

Community work

[19]   The Court has the power to impose a sentence of community work in any case where the offence carries a sentence of imprisonment.5 The charge of careless driving causing injury has a maximum sentence of three months imprisonment.6 The Court may also impose a fine of up to $4,500.

2      Guinness v Police [2015] NZHC 883 at [16]-[18].

3      R v Morunga (2000) 17 CRNZ 396 (CA) at [12].

4      R v Vallily CA251/04, 10 November 2004; Fannin v Police [2016] NZHC 168; Scanlon v R [2013] NZCA 502.

5      Sentencing Act 2002, s 55(1)(a).

6      Land Transport Act, s 38.

[20]   Counsel have cited several cases where sentences of community work have been imposed on charges of careless driving causing injury.7 The sentence is imposed as a further form of punishment for the offending.

[21]   Mr Woods again submits that Ms Hilton’s culpability is so low that a sentence of community work was not justified. For reasons I have already given, however, I do not view Ms Hilton’s culpability as being as low as Mr Woods would have me accept. In addition, consideration needs to be given to the fact that Ms Hilton’s offending has caused the victim very serious injuries. He has fractures of the vertebrae that will take many months to resolve, if indeed they resolve at all. Although serious injury to a victim may be caused by a moment’s inattention, that fact does not of itself mean that a sentence of community work will be inappropriate.

[22]   A sentence of community work must be for a minimum of 40 hours and a maximum of 200 hours. I do not consider that a sentence requiring Ms Hilton to serve double the minimum hours of community work to be outside the range the Judge was entitled to impose. For that reason I do not accept the Judge erred in principle in imposing a sentence of 80 hours community work.

Result

[23]   The appeal against sentence is accordingly allowed to the extent that the emotional harm payment is reduced from $3,000 to $1800. In all other respects, the appeal against sentence is dismissed.

Lang J

Solicitors:

Crown Solicitor, Auckland Rice Craig, Auckland

7      O’Connell v New Zealand Police [2016] NZHC 1692 at [14]; Tupu v Police HC Wellington AP101/03, 8 July 2003; McArthur v New Zealand Police [2017] NZHC 1100 at [12].