K v Police HC Hamilton CRI 2007-419-68

[2007] NZHC 1247

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2007-419-68

K

Appellant

v

POLICE

Respondent

Hearing:         13 November 2007

Appearances: Mr Morgan QC for appellant

Mr Douch for respondent

Judgment:      13 November 2007

ORAL JUDGMENT OF WINKELMANN J

Philip Morgan QC, Hamilton

Crown Solicitor, Hamilton

K V POLICE HC HAM CRI 2007-419-68  13 November 2007

[1]      Mr K   appeals against the sentence imposed on him by District Court Judge Burnett following his plea of guilty to one count of criminal nuisance.  That charge arose out of Mr K  ’s failure to keep a swimming pool on his property properly fenced which led to the death of a three year old child.  The Judge imposed a sentence of reparation of $14,000 for the emotional harm suffered by the parents of the little girl whose name was Melanie.  The Judge is alleged to have erred in that she took an overly arithmetical approach to setting the level of reparation based on R v Macky & McGregor (HC AK T982516 18 June 1999, Anderson J), failed to take into account information as to Mr K  ’s limited financial means and failed to deal with the conditions of the sentence of reparation as she was required to do by s

36 of the Sentencing Act 2000.

[2]      There is much common ground between the appellant and the respondent on this appeal, both as to the factual basis upon which Mr K   was to be sentenced and as to the approach the District Court Judge should have taken in relation to the issue of reparation.   The summary of facts is accepted by Mr K   and is summarised by the District Court Judge as follows:

Melanie was three at the time she arrived home with her mother and younger sibling to her house next door to the property owned by Mr K  . As Melanie’s mother was unloading items from the vehicle and helping Melanie’s younger brother from the car, Melanie wandered off and within a short period Melanie’s mother noticed her disappearance.

As she was unable to find Melanie she became increasingly worried and returned to her immediate neighbour’s address where she knew there was a swimming pool in the backyard. She was able to enter the pool herself through a large hole in the pool fence and, although she could not see Melanie in the pool, she got into the water and found Melanie submerged in the pool. Melanie could not be revived and subsequently a report under the Fencing of Swimming Pools Act was prepared by the council outlining the breaches in relation to the inadequate fencing which had deteriorated over a period of time.

[3]      In sentencing Mr K  , the District Court Judge had regard to the victim impact statements from the two parents of Melanie.  She noted the terrible grief the loss of Melanie had caused for the family, and that because they were Cambodian immigrants their ordeal would have been heightened by the fact that they did not speak English readily.  She noted by way of mitigation matters raised by Mr Morgan

as counsel for Mr K  , the owner of the property with his elderly mother.  The property was at the time of Melanie’s death occupied by Mr K  ’s sister and her two children.  The pool was not in use, but was fenced off from the family home. There was deterioration of the pool surrounds that Mr K   was not aware of. The particular part of the fence through which Melanie gained access was on a part of the property no easily seen from those parts of the property in use.  Mr K   says that if he had been aware of the defect in the fence he would have had the repairs done, at the very least to protect his young niece and nephew.  In the District Court it was common ground that reparation instead of a fine would be the appropriate penalty, providing the most meaningful outcome to the victims.

[4]      The District Court Judge noted that the penalties imposed in R v Macky & McGregor against each accused were $10,000, half in fine and half in reparation. She observed that in the eight years since that time comparable monetary value would be in the region of $14,000.   She therefore imposed a reparation order of

$14,000.

[5]      The  Judge  had  proceeded  to  sentence  Mr  K    in  the  absence  of  a reparation report.  She did so at the request of both counsel.  She therefore did not have  detailed  information  before  her  as  to  Mr  K  ’s  means,  although Mr Morgan had apparently submitted to her that Mr K   had limited means.

[6]      Today I have detailed information as to Mr K  ’s means which was not before the District Court Judge.   Mr K   has filed an affidavit in which he provides detail that discloses that in broad terms his net income is $35,100, from which he must pay mortgage commitments of $28,600.   This leaves very limited funds available to meet a reparation order.

[7]      I accept that in the light of that material the reparation ordered by the District Court Judge cannot realistically be met by Mr K   in any appropriate time frame.  Were he to pay reparation at a rate of $25 per week, it would take nearly 12 years to pay.  That would not provide a meaningful outcome for Melanie’s family and would also create enforcement difficulties.

I am satisfied that the Judge did fail to take into account Mr K  ’s means and it is common ground between the appellant and respondent that this was an error.  In terms of s 35 of the Sentencing Act she should have done so.  However, as counsel have  observed,  it  was  no  doubt  as  a  result  of  the  sentencing  process  that  was followed on that day that her attention was not sufficiently drawn to the need to take account of Mr K  ’s limited means in setting a reparation order.

[8]      She should also have made orders in terms of s 36 of the Act as to the manner in which the payment was to be made in lump sum or instalment.   However, in relation to the final error alleged, that she took an overly arithmetical approach to fixing the appropriate level of reparation, I am not satisfied that there was anything erroneous in the Judge’s approach.   If it were not for Mr K  ’s very limited means, reparation of $14,000 in this case would have been in order.  In her analysis the Judge did aggregate the fine and reparation ordered in the Macky & McGregor case, but that was appropriate because counsel had agreed that a reparation order rather than a fine was a more meaningful sentence to impose.

[9]      Having  determined  that  the  Judge  erred  in  setting  the  proper  level  of reparation, I proceed to consider what sentence should be imposed in its place.  Mr Morgan for Mr K   submitted that a reparation order in the order of $1,500 to

$4,000 was appropriate to be paid at a rate of $25 per week.  Although that is a lower level reparation order, he submitted that this still provided a meaningful deterrence because the payments will still cause hardship to Mr K   and his family.  Mr Douch for the respondent agreed that a reduction in the level of reparation was in order because of the limited means of Mr K  .  However, whilst that might be appropriate, he submitted that the Court should also impose a sentence of community work upon Mr K   because this was necessary to  achieve  the  purposes  of sentencing in s 7(1)(e) and (f) of the Act.   Section 7(1)(e) refers to the need to denounce the conduct in which the offender was involved, and s 7(1)(f), the need to deter others from committing the same or similar offences.

[10]     I  accept  that  there  is  a  need  to  mark  out  society’s  condemnation  of Mr K  ’s failure to observe a legal duty as important as that contained within the Fencing of Swimming Pools Act 1987.  I am also satisfied that it is appropriate

that there be a substantial reduction of the reparation order because of Mr K  ’s limited means.   Any sentence should still provide for the interests of Melanie’s family.  I therefore propose to reduce the level of reparation Mr K   is required to pay but to impose in addition, an order for community work.  I heard submissions from counsel as to the appropriate levels of reparation and community work.   In imposing a sentence I weigh the need to denounce and deter.  I also take into account the seriousness of the particular offending which I place in the lower to middle range of such offending.

[11]     I allow the appeal and quash the sentence imposed in the District Court.   I

substitute in its place the following sentence:

1.Mr K   is to make reparation to the parents of Melanie in the sum of $4,000.  Mr K   has offered and I order that that amount is to be paid as follows:

(a) An immediate payment (within seven days of today’s date) of

$1,500.

(b)The balance to be paid at the rate of $50.00 per week (again a rate suggested by Mr K  ).

2.Mr K   is also sentenced to 80 hours community work.  In terms of s 59 of the Sentencing Act he is advised that he is required for that purpose  to  report  in  person  to  a  probation  officer  as  soon  as practicable and not later than 72 hours after this sentence is imposed.

Winkelmann J