Slavich v R - [2011] NZCA 457

IN THE COURT OF APPEAL OF NEW ZEALAND

CA669/2010
[2011] NZCA 457

BETWEEN JOHN KENNETH SLAVICH
Appellant

AND THE QUEEN
Respondent

Hearing: 29 August 2011

Court: Stevens, Ronald Young and Venning JJ

Counsel: Appellant in Person
M D Downs for Respondent

Judgment: 16 September 2011 at 10.30 am

JUDGMENT OF THE COURT

A The application for adjournment of this appeal is refused.

BThe interlocutory application regarding professional issues, contempt of Court, directions under s 16 of the Judicature Act 1908 and for orders under r 45 of the Court of Appeal (Civil) Rules is dismissed.
CThe application to have the affidavits of Anthony Slavich, Delma Slavich, Kirsty De Meyer and John Slavich read at the appeal hearing is granted.
DThe appeal is dismissed.
EThe warrant for imprisonment is suspended until 17 October 2011.
FIf reparation is paid in full by 17 October 2011 the warrant for imprisonment is cancelled.
GIf the reparation is unpaid by 17 October 2011, the appellant is to surrender to the Hamilton Police Station by 5 p.m. 18 October 2011 failing which a warrant to arrest him will issue.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

In October 2006 after an indictable trial before a Judge alone, Heath J, the appellant was convicted of six dishonesty offences. At his sentencing in November of that year he was imprisoned for two years and three months and ordered to pay $60,000 reparation within 12 months. He appealed against his conviction (but not sentence). It was dismissed by this Court.[1]
[1] R v Slavich [2009] NZCA 188.
Since his conviction Mr Slavich has not paid the $60,000 in reparation. After a hearing before White J in September 2010 the Judge concluded that an appropriate alternative order to the payment of the $60,000 reparation was four and a half months’ imprisonment. He suspended that period of imprisonment for six months to give Mr Slavich a further chance to pay. Mr Slavich has not since paid the reparation. Mr Slavich now appeals against this decision to imprison him.
In particular, he says that the Judge in the High Court:
(a)erred in law and in fact in concluding his family trust would be able to meet the outstanding reparation;
(b)erred in fact in concluding he had access to funds from his family trust for the payment of my legal fees; and
(c)That if the errors in (a) and (b) were established then the principle in R v Raymer applies and the failure to pay reparation was through inability and not unwillingness[2]. In those circumstances, this Court should quash the sentence of imprisonment and suspend compliance with the reparation order until the appellant has the means to pay.

Preliminary matters

[2] R v Raymer HC Wellington T 119/89, 15 December 1992.

Before we turn to consider the merits of the substantive appeal there are several matters which need to be dealt with.

Adjournment

Firstly, at the commencement of the hearing Mr Slavich applied for an adjournment. We refused…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NZCA 457
Decision Date: 16 September 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Slavich v R involved an appeal by John Kenneth Slavich against a decision to imprison him for non-payment of reparation ordered after his conviction for six dishonesty offences. The appeal centred on the High Court's decision to substitute a four and a half months' imprisonment sentence for the unpaid reparation of $60,000. Slavich argued that the Judge erred in concluding that his family trust could meet the reparation and that he had access to funds from his family trust for legal fees. He also contended that if these errors were established, the principle in R v Raymer should apply, implying that his failure to pay was due to inability rather than unwillingness.

The Court of Appeal first dismissed preliminary applications by Slavich for adjournment, interlocutory orders, and the admission of "new evidence." The Court then examined the substantive appeal, considering the legal framework under Sections 19 to 19E of the Crimes Act 1961, which provide for the payment of monetary penalties and alternative sentences when they are unpaid. The Court concluded that the High Court Judge was correct in finding that Slavich's family trust could meet the outstanding reparation, and that Slavich had access to funds from his family for legal fees. The Court also held that the facts of this case did not warrant following the principle in R v Raymer, as the family members did have the capacity to make payment of the reparation.

The Court of Appeal rejected Slavich's grounds of appeal and affirmed the High Court's decision to substitute a sentence of imprisonment for the unpaid reparation. The warrant for imprisonment was suspended until 17 October 2011, providing Slavich a final opportunity to pay the reparation. If he fails to do so by that date, he must surrender to the Hamilton Police Station by 5 p.m. on 18 October 2011, failing which a warrant to arrest him will issue.

Orders