S v Police HC Rotorua CRI 2006-463-1

[2006] NZHC 180

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2006-463-001

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 March 2006

Appearances: T M Petherick for the Appellant

T R Bayley for the Respondent

Judgment:      7 March 2006

ORAL JUDGMENT OF PRIESTLEY J (Sentence Appeal)

Counsel:

T Petherick and J Paterson, Gresson Grayson & Calver, P O Box 1045, Hastings

T Bayley, Crown Solicitor, P O Box 740, Rotorua

S V NZ POLICE  HC ROT CRI 2006-463-001  7 March 2006

[1]      This is an appeal against sentence.  The focus of the appeal is on a sentence of reparation made under s12 of the Sentencing Act 2002.

[2]      The appellant pleaded guilty to a charge of careless driving causing death. This  tragic  accident  occurred  on  State  Highway  5  on  28  March  2005  a  few kilometres east of Taupo.

[3]      The appellant pulled out to pass a boat trailer in front of him.  There was no oncoming traffic.   Unfortunately the appellant was unaware of a car which was overtaking him.  At the critical moment that vehicle was in the appellant’s blind spot. A collision ensued.   The victim, who was sitting in the passenger seat of the overtaking vehicle which was being driven by his partner, was killed as a result of the vehicle sliding off the road and rolling.

[4]      The sentencing notes of Cooper DCJ  in the Taupo District Court on 10

November 2005 set out in full the relevant factors.   He disqualified the appellant from holding or obtaining a driver’s licence for a period of 12 months.  He imposed a sentence of 180 hours community work.  He also ordered a $10,000 reparation sum for the emotional harm of the deceased’s only child Blade (now aged 7), such sum to be held in trust for the child.

[5]     The Judge had before him extensive materials, including victim impact statements and a comprehensive 12 page report prepared for the victim’s whanau by Ms Vicki Henry.   I have been assisted by Ms Henry in court today who, at my invitation and on behalf of the whanau, has updated me on Blade’s situation.

[6]      Mr Petherick for the appellant has attacked the reparation order on two fronts. The first was that the District Court lacked jurisdiction to make such an order.   I disagree with that submission.  It is abundantly clear that in terms of ss32(1)(b) and

32(2), coupled with the (a)(iv) definition of “victim” in s4(1) Blade was a victim who, if suffering from emotional harm, was entitled to the benefit of a reparation sentence.

[7]      Mr Petherick’s second line of attack, however, has more force.  He pointed inter alia to the lack of information before the Court on Blade’s situation.   He suggested (although I have not had the opportunity to research the issue in detail) that Blade, as a surviving infant child of the deceased, was entitled to some income related cover under the Accident Compensation legislation.  He also submitted that having regard to what the Judge acknowledged was the low degree of carelessness involved and other mitigating factors, including the appellant’s excellent driving record, the $10,000 reparation order was clearly excessive.

[8]      Both counsel are concerned as am I by the dearth of information before the Court about Blade and in particular the extent to which he has suffered from emotional harm flowing from his father’s death.  Section 34(3) requires a probation officer to canvass these details if possible and also to say something about the loss or damage suffered by a person if the matter cannot be resolved between the offender and the victim.

[9]      I was hugely impressed, as I informed the whanau and counsel in Court today, by the paragraphs relating to Blade which appear on pages five and six of the whanau’s “Application for Reparation”.   I would be surprised if that information could be improved upon.   A dimension that is lacking, however, is some form of professional assessment of the exact impact on Blade emotionally which his father’s tragic death has had.

[10]     There is absolutely no criticism of the Judge for not exploring the emotional loss factor so far as Blade was concerned in greater detail.  However, the scheme of the  statute  suggests  that  there  should  be  some  form  of  exploration  rather  than arriving at a figure which is unrelated to the emotional harm which is to be compensated.

[11]     In  that  regard  I  note  that  the  Judge  in  paragraphs  [9]  and  [10]  of  his sentencing notes asks himself the correct question but the reference to Blade is in terms of the victim impact report he had read covering all the deceased’s immediate family rather than specifically relating to Blade alone.  In that context it is not totally clear how the sum of $10,000 was reached.  Certainly that sum is arguably (and I say

no more than arguably) on the high side looking at comparable reparation orders

(refer Neho v Police [2005] BCL 1088; Singh v Police   (High Court Napier 27

January 2004 MacKenzie J) NCCLD 5th series 6479).

[12]     I have given some thought to whether it would be possible to negotiate an acceptable outcome today in terms of which the appellant might volunteer to pay a reparation sum by instalments into a suitably designated trust.  Ms Henry responsibly tells me that the whanau had it in mind to establish a trust with the Public Trustee as trustee to handle any reparation sum paid.   However, I am uneasy and indeed it would be inappropriate for me to start negotiating an overall “settlement” between the appellant on the one hand and the deceased’s whanau on the other part.  There is also huge force in Ms Bayley’s submission that in terms of a structured sentence under the Act any alteration to the quantum of the reparation sentence would have a flow-on effect to other aspects of the sentence.

[13]     Ms Bayley’s submission to me was, in the event of my having any concerns jurisdictional or otherwise over the sentence imposed, the preferable option would be for me to quash the sentence and remit the matter back to the District Court for reconsideration.

[14]     I am  informed  that  Blade  is  unfortunately subject  to  a  dispute  currently pending  in  the  Taupo  Family  Court  between  his  paternal  grandmother  and  his mother as to his day to day care.  I am informed that Mr A Tisch has been appointed as Blade’s counsel and that a psychological report pursuant to the provisions of the Care of Children Act 2004 has been ordered.   Subject to the Family Court, its litigants, and Mr Tisch agreeing, it might be appropriate if the probation officer preparing a more detailed reparation report were to have access to that psychological report.

[15]     I also note that it is possible in terms of s10(1)(a) for the Court to take into account an offer of amends.   It may well  be  that  the  appellant  and  Ms  Henry representing the whanau can come up with some mutually acceptable proposal where they are closer in terms of figures than was the case when Cooper DCJ considered the matter.

[16]     Solely because of the inadequacy of information envisaged by s32 relating to Blade’s emotional harm before the District Court, I accede to counsel’s suggestion. The disqualification period imposed by Cooper DCJ will remain unaffected.   The sentence of community work and the reparation sentence, however, are quashed and I direct  that  sentencing  is  to  be  remitted  back  to  the  Taupo  District  Court  for reconsideration in the light of my judgment.

[17]     There is no order for costs.

……...…...............................................… Priestley J