The Queen v Hawken - [2006] NZCA 131

IN THE COURT OF APPEAL OF NEW ZEALAND
CA307/05
THE QUEEN
v
WILLIAM HENRY HAWKEN
Court:Chambers, Ronald Young and Allan JJ
Counsel:M A Kennedy for Appellant

M J Ruffin for Crown

Judgment:21 June 2006

JUDGMENT (NO 2) OF THE COURT

A        The appeal against the sentence of reparation is allowed.
B        The sentence of reparation is quashed.
REASONS
(Given by Chambers J)
[1]       On 5 May this year, we delivered our judgment on William Hawken’s appeal against conviction and sentence. We quashed his conviction on count 3 and entered a verdict of acquittal on that count. We dismissed Mr Hawken’s appeal against conviction on counts 2, 6, 7, 8, and 9. We confirmed the sentence of 12 months’ imprisonment on counts 2, 6, 7, 8, and 9.
[2]       Judge Singh, the sentencing judge, had imposed a sentence of reparation. With respect to that, we made the following comments:
[55]   The Judge when imposing the sentence of reparation said:
I make an order for reparation to the Inland Revenue Department in the sum of $120,000. Arrangements for payment is to be made with the Registrar upon your release from custody.

[56] This sentence did not comply with s 36 of the Sentencing Act which requires a Judge to determine the total amount of reparation, the date of any lump sum payment and the frequency and amounts of any payments by instalments. In addition, a reconsideration of the quantum of reparation may now be required given the acquittal on count 3. Counsel for the Crown and the appellant may be able to agree upon a suitable figure for reparation and an appropriate method of payment. Counsel are to file a joint memorandum, if they can reach agreement. If not, then counsel for the appellant is to file a memorandum on or before 18 May 2006 and the Crown must reply on or before 25 May 2006.

[3]       We have received memorandums from Ms Kennedy, on behalf of Mr Hawken, and Mr Ruffin, on behalf of the Crown.
[4]       We cannot see how Judge Singh reached the decision he did. At that time, Mr Hawken had no income and no assets. He had outstanding debts of $10,000. The only potential asset was a debt Mr Hawken said was owed to him, but that debt was disputed. The Crown’s position at sentencing was that “it was highly unlikely” that funds would be available, “in the near future or at all”, to meet the sum payable to the Crown. The judge appears not to have turned his mind to the question of how Mr Hawken was to pay the sum of $120,000. This court has frequently said that any reparation order must be set at a realistic level, given the financial circumstances of the person against whom it is made; for a recent declaration to that effect, see R v Bailey CA306/03 10 May 2004 at [25].
[5]       Mr Hawken’s position today is effectively unchanged. Ms Kennedy advised in her memorandum that Mr Hawken still…

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.

Continue reading The Queen v Hawken

Details

AGLC: The Queen v Hawken [2006] NZCA 131
Case: [2006] NZCA 131
Decision Date: 21 June 2006

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appeal of William Henry Hawken against his sentence of reparation was heard. The court was asked to decide whether the sentence of reparation imposed by Judge Singh was compliant with the Sentencing Act. The appeal was against the reparation order requiring Hawken to pay $120,000 to the Inland Revenue Department.

The legal issue before the court was whether the sentence of reparation complied with section 36 of the Sentencing Act. This section requires the judge to determine the total amount of reparation, the date of any lump sum payment, and the frequency and amounts of any payments by instalments. The court also needed to consider whether the amount was realistic given Hawken's financial circumstances. Hawken had no income or assets, and his only potential asset was a disputed debt.

The court found that Judge Singh did not consider Hawken's financial circumstances when imposing the reparation order. The Crown had argued that it was unlikely Hawken would have the funds to pay the reparation sum in the future. The court agreed, stating that the reparation order must be set at a realistic level based on the financial circumstances of the defendant. Given Hawken's current financial situation, the court concluded there was no realistic prospect of him being able to pay the reparation sum in the foreseeable future. Therefore, the sentence of reparation was quashed. The court noted that it was open to the Commissioner of Inland Revenue to proceed against Hawken for the defrauded sum.

Orders