Kuek v Police

[2012] NZHC 181

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-398 [2012] NZHC 181

BETWEEN  JOSIAH MICHAEL KUEK Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         17 February 2012

Counsel:         D Niven for Appellant

A R Longdill for Respondent

Judgment:      17 February 2012

JUDGMENT OF BREWER J

SOLICITORS/COUNSEL

David Niven (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

KUEK V POLICE HC AK CRI-2011-404-398 [17 February 2012]

Court to clarify the meaning of an order for reparation made in the District Court.

[2]      On 12 April 2011 in the District Court at North Shore, Judge LI Hinton sentenced the appellant.  In respect of reparation, the District Court Judge ordered:[1]

You must pay reparation of $150,000 to South Pacific Music by payments of

$50,000 each on each of the following days; 1 August 2011, 1 December

2012 and 1 March 2014.   You must undertake 200 hours of community work.  The reparation figure I have decided on is one that I regard as the mid to upper range of the figures that I could calculate as the loss sustained by the company.  It reflects also that not all of the loss can be paid by you given, perhaps, your limited means to do so.  It reflects, however, the fact that there should be immediately available, within the next few months, $50,000 ex the sale of the property which I understand the company currently has and, therefore, is imposing payment by you of a further $100,000 within a three- year period.

[1] Police v Kuek DC North Shore CRI-2010-044-2803, 12 April 2011, at [29].

[3]      It is common ground between the appellant and the respondent that the clear intent of the District Court Judge was that the first $50,000 of the reparation payment due on 1 August 2011 would not be paid in cash; it would be satisfied by the sale of property which had already been forfeited to the company.  It is common ground that the victim company received property worth at least $50,000.

[4]      However, the District Court has no record of that and has interpreted the

District Court Judge’s sentence in this regard as requiring a separate cash payment of

$50,000 as at 1 August 2011.  The Court has been taking enforcement action against the appellant because that money has not been paid.

[5]      This is a simple matter and I can proceed with the agreement of the appellant and the respondent.

[6]      To make the matter clear, I allow the appeal and I quash the reparation order made by the District Court Judge.  I substitute the following order:

You must pay reparation of $100,000 to South Pacific Music by payments of

$50,000 each on each of the following days: 1 December 2012 and 1 March

2014.

Brewer J