Prowse v Police

[2012] NZHC 1931

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000050 [2012] NZHC 1931

GARY THOMAS PROWSE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 August 2012

Appearances: A McCormick for the Appellant

C Boshier for the Respondent

Judgment:      2 August 2012

ORAL JUDGMENT OF HON. JUSTICE FRENCH Re Appeal Against Reparation Orders

[1]      Mr Prowse was convicted in the District Court of five charges of careless driving causing injury.

[2]      He  was  ordered  to  pay  reparation  in  varying  sums  to  each  injured complainant, as well as Court costs.  He was also disqualified from driving for a total period of six months.

[3]      He now appeals two aspects of the reparation orders that were made.

PROWSE V NEW ZEALAND POLICE HC CHCH CRI-2012-409-000050 [2 August 2012]

[4]      The original notice of appeal challenged more than two aspects but, after receiving the respondent’s submissions, his counsel responsibly acknowledged that only two issues should properly be the focus of the appeal.

[5]      The first relates to an award of reparation payable to Ms Worrall comprising

$1200 lost wages and $100 for emotional harm.

[6]      Ms  Worrall  was  in  receipt  of  Accident  Compensation.     Accordingly, following the Supreme Court Decision of Davies[1] and s 32(5) Sentencing Act 2002, the order relating to lost wages cannot stand.  The Judge did not have the power or the jurisdiction to make that order.

[1] Davies v Police [2009] NZSC 47

[7]      The Crown agrees that the order cannot stand, but has asked me to invoke my powers under s 121(3)(a)(i)  Summary Proceedings Act  1957  and  re-sentence by increasing the emotional harm payment.   Mr Prowse, who I record is a genuinely remorseful offender, is agreeable to that course of action.

[8]      Ms  Worrall  suffered  serious  physical  injuries  in  the  accident.    They  are ongoing and have continued to cause her significant emotional harm and distress. Her  emotional  harm  has  continued  to  this  very  day.    I  am  satisfied  that  it  is appropriate to award her a significant sum for the emotional harm she has undoubtedly suffered.

[9]      I  accordingly  propose  to  substitute  the  order  that  the  Judge  made  for

Ms Worrall by ordering payment of reparation of $1300 for emotional harm.

[10]     The second ground of appeal relates to an order for reparation of $2600 to

Mr Topp to replace his vehicle, valued at $3500, together with $100 in lost wages.

[11]     The reason why the Judge ordered reparation of $2600 for the vehicle and

$3500 was because police were under the impression Mr Prowse had paid $1000 to

Mr Topp.  In fact, he had paid much more than that.  He had paid $3500, the full

value of the car.  Obviously, Mr Prowse is entitled to credit for that payment.  The

Judge was simply not given the right information and as a result has made a mistake.

[12]     It is common ground that the order in favour of Mr Topp should be varied so as to reduce it to $100 reparation for loss of wages.  Mr Topp was not in receipt of ACC and, accordingly, there is no jurisdictional challenge to the payment for lost wages.

[13]     The outcome of this appeal therefore is that the appeal is allowed.

[14]     The  order  of  reparation  made  in  respect  of  Ms  Worrall  is  quashed  and replaced with an order for reparation of $1300 to her for emotional harm.

[15]     Secondly, the order of reparation to Mr Topp is varied by reducing it to $100 reparation for loss of wages.

[16]     Finally, I would just like to conclude by thanking counsel and indeed Mr

Prowse himself for the responsible attitude he has shown today.

Solicitors:

Raymond Donnelly, PO Box 533, Christchurch 8140

Brandts-Giesent McCormick, PO Box 306, Rangiora

Copies to:

Mr G T Prowse, 302 Harleston Road, Sefton, Waimakariri District 7841

New Zealand Transport Agency, PO Box 13-364, Christchurch

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