S v R HC Nelson CRI-2010-442-11
[2010] NZHC 990
•25 June 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI-2010-442-11
S
v
THE QUEEN
Hearing: 22 June 2010
Appearances: Mr Zindel for the appellant
Mr Stevenson for the respondent
Judgment: 25 June 2010
JUDGMENT OF MALLON J
Contents
Introduction............................................................................................................... [1] Background ............................................................................................................... [2] Submissions .............................................................................................................. [8] Approach to imposing a reparation sentence .......................................................... [10] Amount for emotional harm ................................................................................... [11] Insufficient means? ................................................................................................. [18] Undue hardship? ..................................................................................................... [24] Result ...................................................................................................................... [27]
S V R HC NEL CRI-2010-442-11 25 June 2010
Introduction
[1] Mr S appeals against an order for reparation of $7,500. This order was imposed as part of his sentence on his conviction for careless driving causing injury. The order was made for emotional harm suffered by the victim of the careless driving. The appeal is on the grounds that the Judge erred in his assessment as to the amount that the appellant could pay. As a result it is said that the Judge imposed a sum which would cause undue hardship.
Background
[2] The careless driving causing injury charge arose out of an incident one Sunday morning. Mr S was driving on a road in a 100 km per hour zone. He was with his partner and they were looking for an address. Upon realising that he had gone past the address, Mr S backed up the road. The road was straight, but hilly and narrow which limited visibility. The victim was riding his motorbike and saw Mr S ’s car reversing towards him. As the victim attempted to avoid Mr S ’s car, Mr S was driving forward into a driveway. The victim’s motorbike collided with Mr S ’s vehicle.
[3] The victim sustained serious injuries. He was airlifted to Nelson Hospital and then to Christchurch Hospital. He was in a coma for five days and had to have major surgery. His pelvis was fractured in two places. His ligaments in his left knee were torn. He had internal injuries to his ribs, right kidney, pancreas, spleen and liver. He also had a punctured lung. Damage was also caused to the sciatic nerve causing a loss of feeling below the knee and “drop foot syndrome”.
[4] Mr S pleaded guilty to the charge. He was sentenced to 120 hours community work, disqualified from driving for nine months and ordered to pay reparation of $7,500 for emotional harm. As to that reparation the Judge said:
[20] I have asked Mr Ballantyne [counsel] to clarify from you, in the light of what is said in your declaration and in the light of what is said in the reparation report, what your offer of reparation is. I have been told you offer
the sum of $1500 which you think is adequate to make good the harm that has been caused. You want to retain your other savings on account of your retirement.
...
[22] As I have said, the consequences for the victim here are severe. The costs of damage to the motorcycle have been paid. There is an ACC shortfall [on earnings related compensation] which I am not able to have regard to but I do think a substantial emotional harm payment is justified. I have regard to the trauma suffered and I have regard to your ability to pay. I have seen your declaration of assets and liabilities and I have seen the savings that you have, and I am satisfied that you have the ability to pay the amount that I am about to order.
[5] The statement of assets and liabilities recorded the following:
Assets
– joint family home (approx)
$180,000.00
– savings account $10,000.00 Liabilities
– mortgage
$18,600.00
Net assets
$172,400.00
[6]
As to income and expenses Mr S
recorded:
Income (weekly)
– part time income [as chef]
$150.00
– pension $189.00 Total income
$339.00
Expenses
– utilities
$70.00
– mortgage repayments $120.00 – food $150.00 – general living expenses $10.00 Total expenses $350.00 Net weekly loss
$11.00
[7] The statement from Mr S also recorded his partner contributed where possible through her part time work.
Submissions
[8] Counsel for the respondent defended the reparation amount ordered with reference to the victim impact report. Counsel for Mr S said that given the extent of the victim’s injuries, emotional harm may be accepted. In his written submissions he said that the amount ordered would have been appropriate, if Mr S ’s means allowed it, had the offending involved deliberate harm rather than carelessness. He submitted that in such a situation the victim may suffer emotional harm from feeling targeted. At the hearing counsel backtracked a little from that saying that Mr S did not contest that the $7,500 was an appropriate amount for emotional harm if Mr S had the capacity to pay that sum.
[9] As to capacity to pay, counsel for Mr S submitted that, in light of the figure that the Judge had in mind, when Mr S offered reparation of $1,500 the Judge ought to have clarified with counsel why only this sum had been offered. Counsel submitted that had he done so, the Judge would have been informed that the savings account was a joint account. The Judge would also have been told that the money in that account was needed to cover the couple’s deteriorating financial position at a stage when they were at or approaching retirement (Mr S is 66 and his partner is 61). In these circumstances counsel for Mr S submitted that the sum ordered by the Judge would cause Mr S undue hardship. He submitted that no more than half of the joint savings ought to have been ordered (ie the amount representing what could be viewed as his half share of the couple’s combined savings).
Approach to imposing a reparation sentence
[10] The amount that is properly ordered as reparation for emotional harm must first be set with reference to the emotional harm suffered by the victim (s 32(1)(b) and (2) of the Sentencing Act 2002). Reparation is restorative and so the amount ordered must relate to the harm actually suffered. Only when that determination has been made should the Judge consider whether the defendant has the financial capacity to pay that sum and, if not, what lesser sum the defendant can pay (s 35(1)
of the Sentencing Act). If these distinct steps are not taken then, for something that is not capable of precise quantification, the danger is that the sum is determined by an amount that the Judge considers the defendant can pay rather than by the harm that is suffered by the victim. Once the amount of reparation has been set in this way the Judge must impose that sentence unless it would result in undue hardship or there are other special circumstances that make it inappropriate (s 12 of the Sentencing Act).
Amount for emotional harm
[11] The starting point is, therefore, whether the $7,500 was a proper sum to order for the emotional harm suffered by the victim. I proceed to consider this because it is not apparent from the Judge’s sentencing notes how the $7,500 sum was set.
[12] I have read the victim impact report and the reparation report that was before the Judge. I certainly accept that the accident and resulting injuries must have been horrific for the victim. Apart from the pain and suffering caused by his injuries, the victim has been stuck at home for a long period of time and dependent on the help of his partner and, for periods, his parents. He has been unable to do the work that he enjoyed. He has been unable to pursue his recreational pleasures which used to include fishing, hunting and trail bike riding. Some six months after the accident, the victim and his partner had not been able to be intimate since the accident. A year later the victim was progressing physically but it appears had still not been able to return to work and was uncertain of his ability to physically have an intimate relationship again.
[13] Under the heading “emotional harm” the reparation report said this:
When asked how the crash had affected him emotionally, Mr S again spoke with humility and acceptance. He said the he chooses to “look forward – I remember where I was a month ago and see how far I have come”. Mr S felt that the experiences as a result of the crash had “made me better, (I) have a bit more perspective, (I’m) more empathetic towards others, the stuff that used to be important is not so anymore”.
Since the hospitalization Mr S has been placed in a position where he has to rely on others. He said that the crash had affected him in ways that he never expected. There was one aspect that had continued to bother Mr S. He
remarked that he had been conscious directly after the crash and recalled lying in the grass and hearing Mr S deny that he had been negligent. Mr S said that he hoped Mr S would take on board what he has done. He noted that he had not heard from Mr S and while Mr S ’s wife had come to visit on three occasions, these had been unannounced and he was yet to hear from Mr S himself.
...
While Ms B accepted that Mr S continued to progress well physically after each operation, there continued to be disruption in their life.
Throughout the telephone interview Mr S spoke of the current situation in a generous manner revealing a retiring gentle nature. He held no bitterness towards Mr S . ...
[14] The reparation report had referred to the impact the accident had had on the well being of the victim’s partner. However, the emotional harm suffered by the victim’s partner cannot be part of the reparation order (ss 4 and 32(2) of the Sentencing Act) except and to the extent that it may have added to the emotional harm suffered by the victim as a result of the accident.
[15] Having reviewed this material, I agree that emotional harm must have been suffered by the victim. As to how to quantify that harm, comparable cases are of assistance.
[16] Counsel for Mr S provided me with Wilson v New Zealand Police HC Christchurch CRI-2006-409-000155, 3 November 2006. As here that case involved a charge of careless use causing injury. The injuries suffered by the victim were similarly significant and included a brain injury for which the victim would need to take anti-convulscent medication for the rest of his life. Reparation of $7,500 for emotional harm was ordered by the District Court. On appeal this was challenged as excessive (there was no issue as to the offender’s capacity to pay this sum). The High Court upheld the order. It noted that most areas of the victim’s life had been affected by the accident and the extent of the emotional harm was self-evident from reading the victim impact statement. It referred to Smith v Police HC Rotorua CRI-
2006-463-001, 7 March 2006 where the charge was one of careless driving causing death and an award of $10,000 was viewed as “arguably on the high side” and Read v Police HC Christchurch CRI-2003-409-000070, 10 December 2003 where the
High Court upheld awards of $5,000 to one victim and $2,000 to another and said these were “fairly referable to the emotional harm suffered”.
[17] In addition to those cases, I also note that in Davies v Police [2009] 3 NZLR
189 on a charge of careless driving causing injury, reparation of $7,000 for emotional harm was not challenged on the appeals to the Court of Appeal and Supreme Court. In view of these authorities the $7,500 ordered here, while a substantial sum, could not be described as manifestly excessive.
Insufficient means?
[18] I therefore turn to the issue of whether that amount should be reduced on the grounds that Mr S had “insufficient means to pay” the total value of the emotional harm suffered (s 35(1) of the Sentencing Act).
[19] The Judge had before him Mr S ’s offer of $1,500. He also had Mr S ’s financial position as prepared by him which disclosed the asset of the house encumbered by the mortgage, savings of $10,000, and a deficit of income over expenses. He also had before him a reparation report. No agreement had been reached as between the parties but the report writer had canvassed Mr S ’s ability to pay reparation. The report writer noted:
While Mr S is gainfully employed, this is on a part-time basis. The inconsistency of his work hours and his finances left him unable to provide an exact figure for reparation payment. Mr S was able to give an assurance to pay whatever amount was stipulated by the court; however, was unable to commit to a specific weekly amount.
[20] On the information before the Judge Mr S appeared to have access to funds (the funds in the savings account) to make the reparation payment. However in my view having access to funds which exceed the reparation ordered is not the same as having sufficient means to make the payment. Here there were two other things that needed to be considered. The first was that the weekly (modest) expenses exceeded the weekly (also modest) income. This raised the question of whether the partner’s income was meeting this deficit or whether the savings were needed for this. The other issue, which was raised by Mr S ’s counsel, was Mr S ’s
age. Because Mr S was 66 he had limited future earning capacity and therefore likely had a need to have access to savings in the ensuing years. It is not apparent from the Judge’s notes on sentencing why, in light of those issues, he concluded that Mr S had sufficient means to make the payment.
[21] Had the Judge explored these issues the Judge could have been informed of the matters that are now set out in the affidavit filed in support of this appeal. This includes that the savings account was a joint one, that Mr S ’s income fluctuated and was sometimes less than the $150 recorded, that his partner’s income was also very modest (she earns between $100 and $200 net per week and approximately $1,000 a year before tax in royalties), that there was no real prospect of increasing their borrowings and that overall they are in a deteriorating financial position at a time when they are at or approaching retirement.
[22] Given this financial position at this stage of Mr S ’s life, it is virtually inevitable that Mr S will need to access his savings to meet day-to-day expenses. If he has to pay $7,500 by way of reparation there is virtually no prospect of Mr S ’s savings being replenished. This distinguishes this case from other cases where younger offenders with limited means have been ordered to pay reparation of this sort of sum. I consider that Mr S is not in a financial position where he has sufficient means to make the payment ordered here.
Undue hardship?
[23] Alternatively, if it could be said that Mr S had the means to make the payment because Mr S had present access to the funds, in my view the reparation order would give rise to undue hardship to Mr S in his advancing years and in his financial position. This is particularly so where he would lose his life’s savings for, what at the end of the day, is an act of carelessness which, very unfortunately, had horrific consequences for his victim.
[24] In the circumstances I consider that the order must be reduced. I do so reluctantly because the victim has suffered considerably and may wonder why he will not get all of what the District Court ordered that he should have. But
reparation, although having a restorative purpose, is a sentence imposed on an offender. The law says that this is not to be imposed if it would be unduly harsh on the offender. Here I consider that not to reduce the amount would be too harsh, and unduly so, on Mr S at his age and stage in life.
Result
[25] The appeal is allowed. The reparation order of $7,500 is quashed. In its place I impose a reparation order of $4,000. This represents significantly more than Mr S considered he could afford but does leave Mr S and his partner with a little over half of their accumulated savings, which they will need to meet the contingencies that almost inevitably will arise in the future. I note that Mr S offered to increase his hours of community work if his reparation was reduced. I do not think that is necessary. Looked at overall his sentence appropriately reflects his culpability.
Mallon J
Solicitors:
S J Zindel, Zindels, Nelson, email: [email protected]
C Stevenson, Pitt & Moore, Nelson, email: [email protected]
0
0
0