R v Slavich HC Hamilton CRI 2006-419-89

[2010] NZHC 1573

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2006-419-89

THE QUEEN

Applicant

v

JOHN KENNETH SLAVICH

Respondent

Hearing:         10 September 2010

Appearances: J N Foster for the Applicant

Respondent in Person

Judgment:      10 September 2010

ORAL JUDGMENT OF WHITE J

Solicitors:      Almao Douch, PO Box 19173, Hamilton 3244

Copy To:      J K Slavich, PO Box 120, Hamilton 3240

R V SLAVICH HC HAM CRI-2006-419-89  10 September 2010

[1]      Mr Slavich appears before the Court on a summons issued to him under s 19DA of the Crimes Act 1961 on 18 February 2010 by Heath J to show cause why a sentence of community work, community detention, or home detention should not be imposed on him for non-payment of reparation of $60,000 which he was ordered to pay on 21 November 2006.  In addition to exercising its power under s 19DA to impose the sentences referred to in the summons, the Court also has power under s 19D of the Crimes Act 1961 to make an order for the immediate imprisonment of Mr  Slavich  on  the  ground  that  a  bailiff  has  reported  in  terms  of  s  19C  that Mr Slavich was unco-operative and would not disclose his means: see minutes of Heath J dated 4 February 2010 at [2] – [3] and Cooper J dated 10 June 2010 at [6] – [7].

[2]      The background to this case and the resumed hearing today is set out in my oral interim ruling of 6 August 2010 which should be read with this judgment.

[3]      Since my ruling, the following further steps have been taken:

a)       In  terms  of  my  timetable  directions,  the  Crown  filed   further submissions on 20 August 2010, together with a second affidavit of Mr C D Rolls of Basecorp Finance Limited and an affidavit of Detective Simon Eckersley;

b)By  letter  dated  24  August  2010  Mr  Cameron  Mander,  Deputy Solicitor-General,  advised  Mr  Slavich  that  the  informations  laid against the Hamilton Crown Solicitor and members of his office had been stayed under s 159 of the Summary Proceedings Act 1957.  Mr Slavich has advised the Court today that he has applied to set aside the stay;

c)       By memorandum dated 27 August 2010 Mr Slavich sought a further adjournment of the hearing for today on the ground that his counsel, who was unnamed, was unable to appear and sought further time to prepare;

d)By notice of opposition dated 2 September 2010 the Crown opposed the  adjournment  application  on  the  grounds  that  the  hearing  has already been adjourned on four previous occasions, Mr Slavich has had  four  weeks  to  take  legal  advice  and  file  submissions  for  the hearing today, and it is not in the interests of justice for a further adjournment to be granted;

e)        By minute dated 3 September 2010 I directed counsel engaged by

Mr Slavich to respond to the Crown’s notice of opposition by 4 pm on

6   September   2010,   explaining   why,   in   view   of   the   position summarised in my interim ruling of 6 August 2010 at [16] – [21], Mr Slavich had not been able to retain counsel who was available for the hearing today and able to address the outstanding issues now; and

f)        In terms of my timetable directions of 6 August 2010, Mr Slavich filed a memorandum in response to the Crown’s submissions dated

3 September 2010 and an affidavit from himself.   Mr Slavich has objected to the filing of the further affidavits by the Crown.

[4]      No memorandum has been received from counsel engaged by Mr Slavich.

[5]      At the outset of the hearing today, I declined the application by Mr Slavich for a further adjournment on the following grounds:

a)        The hearing has already been adjourned on four previous occasions;

b)Mr  Slavich  has  had  four  weeks  to  obtain  legal  advice and  retain counsel able to appear today;

c)        He  has  filed  a  memorandum  and  an  affidavit  in  response  to  the

Crown’s submissions;

d)       He has appeared today to represent himself; and

e)       In these circumstances it is not in the interests of justice for a further adjournment to be granted.

[6]      Also at the outset of the hearing today, I ruled that I would receive the further affidavits filed by the Crown on the following grounds:

a)       They were filed in terms of the further directions in my interim ruling of 6 August 2010; and

b)Mr Slavich’s reliance on the practice of the Court of Appeal and Supreme Court in relation to further evidence on appeals is not applicable in the circumstances of this case in the High Court.

[7]      The  Crown,  in  its  further  submissions,  has  indicated  that  its  position  is correctly summarised in my interim ruling at [17] and that it takes no issue with the analysis of the relevant statutory provisions in the ruling at [19].  The Crown submits that the approach suggested in the ruling at [20] is appropriate in that it allows Mr Slavich a final opportunity to meet the obligations imposed by the sentencing Judge designed to provide for the interests of the victims of the offending.

[8]      In response to the matters raised by Mr Slavich and the Court at the hearing on 5-6 August 2010, the Crown has:

a)       Provided the further affidavits of Mr Rolls and Detective Eckersley which   establish   that   the   reparation   ordered   by   Heath   J   on

21 November 2006 remains outstanding;

b)Pointed out that in contrast to the position in R v Raymer[1] where there was no suggestion that the offender had benefited in any significant way from the family trust in that case, here it is clear that Mr Slavich has received substantial funds from family interests over the past four years, and during his cross-examination on 5 August 2010 the following exchange occurred:

[1] R v Raymer HC Wellington T119/89, 15 December 1992

Q:   You are also able to approach them for funds in order to meet the reparation payment aren’t you?

A:   Yes, and I have also stated that in my submissions that, I will approach  them  when  I  have  completed  –  when  we  have completed all those processes I will approach them again, but at this stage they would not fund it because they do not believe we have finished the criminal process.

[9]      In his memorandum in reply and in his oral submissions today Mr Slavich has said:

a)       The affidavits for the Crown should not be accepted because they contain erroneous evidence, particularly in relation to his personal loan;

b)A  judicial  review  proceeding  in  the  High  Court  at  Hamilton challenging the May 2010 decision of the Judicial Conduct Commissioner  rejecting  Mr  Slavich’s  complaint  against  Heath  J should call into question the reparation order;

c)        He remains unable to pay; and

d)The suggested period of imprisonment of four and a half months is arbitrary and in breach of s 22 of the New Zealand Bill of Rights Act

1990.

[10]     I do not accept Mr Slavich’s submissions.

[11]     First, there is no basis for rejecting the evidence in the Crown’s further affidavits.  Neither deponent was called for cross-examination on his affidavit and, even if the paragraphs relating to the personal loan are put to one side, there can be no real dispute that the reparation ordered by Heath J has not been made.

[12]     Second,  the  judicial  review  proceeding  challenging  the  decision  of  the Judicial Conduct Commissioner is effectively a collateral  attack, twice removed from the matters in this proceeding, and is no basis for questioning the reparation order made by Heath J, especially as there was no appeal against his decision on sentence.

[13]     Third,  I  am  satisfied  that  Mr  Slavich’s  case  may  be  distinguished  from R v Raymer on the ground that Mr Slavich has had access to funds from his family trust for the payment of his legal fees and that his family trust would be able to meet the outstanding reparation.

[14]     Fourth, there is no question that Heath J did discount the sentence on the grounds of both reparation and parity.   The apportionment of 50:50 between the discount for reparation and the discount for parity is appropriate and I agree with the submission for the Crown that an inference to that effect may be drawn.   For that reason s 22 of the New Zealand Bill of Rights Act has no application: arrest for a term of imprisonment of four and a half months for non-payment of Court ordered reparation would not constitute an arbitrary arrest.

[15] There is therefore no reason to alter the position as summarised in my interim ruling at [17]. Mr Slavich did not dispute the analysis of the legislation in the ruling at [19].

[16]     Mr Slavich has been on notice since 6 August 2010 that one outcome is that there could be an immediate imprisonment sentence of four and a half months and no order for remission, but that the imprisonment sentence could be stayed for six months to enable reparation to be made.  Mr Slavich has advanced no submissions to dissuade me from following that course.  I therefore propose to do so.

Result

[17]     In terms of s 19D of the Crimes Act 1961 there will be an order for the imprisonment of Mr Slavich for a term of four and a half months, but the order will, under  s  19F  of  the  Crimes  Act  1961,  be  suspended  for  six  months,  that  is  to

8 April 2011, to enable Mr Slavich to arrange for the reparation to be made.  Leave is reserved to Mr Slavich to apply to the High Court at Hamilton on notice to the Crown Solicitor in Hamilton for this order to be vacated on proof that reparation has been made.  If the order is not vacated before 8 April 2011, a warrant is to issue for

the arrest of Mr Slavich on that date.

D J White J