BANNING v NZ POLICE [2022] NZHC 2523

BANNING v NZ POLICE [2022] NZHC 2523 [3 October 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-247[2022] NZHC 2523BETWEEN HAYDEN TROY BANNINGAppellantAND NEW ZEALAND POLICERespondentHearing: 3 October 2022Appearances: KK Harding for the AppellantFJ McKechnie for the RespondentJudgment: 3 October 2022ORAL JUDGMENT OF FITZGERALD JSolicitors: Meredith Connell, AucklandCounsel: K Harding, AucklandIntroduction[1] Mr Banning was convicted on charges of driving with excess breath alcohol1and operating a vehicle carelessly.2 He lost control of his vehicle, scraped the side ofa Honda Jazz, then hit a Subaru Legacy with enough momentum to force it on to thefootpath.[2] On 4 July 2022, Judge Skellern in the District Court at Auckland sentencedMr Banning to four months' community detention and 15 months' intensivesupervision with special conditions.3 She also made him subject to an alcoholinterlock licence, and ordered him to pay reparation of $8,736.50 in relation to theSubaru Legacy and $500 in relation to the Honda Jazz.[3] Mr Banning appeals solely in relation to the reparations ordered. He contendsthat, assuming the Judge made a reparation order in relation to the Subaru, the Judgeerred in making that order as the order was not required because he is paying thatamount directly to the insurer (Vero) in a civil settlement. Mr Banning also says thatthere is new information that makes the reparation order in relation to the Honda Jazzinappropriate, namely that the owner did not have to pay an insurance excess. He saysthe reparation orders should therefore be set aside entirely.[4] The respondent contends that the reparation orders should be amended to makeit clear that the amounts are payable to the respective insurers, and to change theamount relating to the Honda Jazz in light of the new information provided.The offending[5] On 18 March 2022 at approximately 9.15 pm, Mr Banning was driving aToyota Landcruiser on a residential road on the North Shore.4 He lost control of hisvehicle and scraped the side of a Honda Jazz. He then carried on and hit a Subaru1 Land Transport Act 1998, s 56(1). Maximum penalty 3 months' imprisonment or $4,500 fine.Minimum penalty 6 months' disqualification.2 Land Transport Act 1998, s 37(1). Maximum penalty $3,000 fine.3 Police v Banning [2022] NZDC 15197.4 Police summary of facts.Legacy with enough momentum to force it on to the footpath. There was extensivedamage to the Subaru Legacy and moderate damage to the Honda Jazz.[6] Mr Banning was spoken to at the scene by police and exhibited signs of alcoholintake. Breath alcohol procedures were carried out and Mr Banning's breath alcoholresult was 953 micrograms of alcohol per litre of breath.[7] In explanation, Mr Banning admitted to having three pints of Lion Red. Hesaid he was moving out of the way for another vehicle when he crashed his vehicle.Sentencing in the District Court[8] I need only focus on that aspect of the sentencing which addresses reparations.[9] The Judge outlined the charges and the facts of the offending, noting that therewas "relatively extensive damage" to the Subaru Legacy of $8,736.50.5 She said therewas no reparation schedule in respect of the Honda Jazz, but the victim of thatoffending was insured, and it had been accepted that a reparation payment of $500 wasappropriate and that Mr Banning was able to pay that immediately.[10] Having dealt with all relevant matters in order to fix those aspects of hissentence which Mr Banning does not appeal, at the conclusion of her judgment, on theoperating a vehicle carelessly charge, the Judge said that she had "made the reparationorders", and in terms of the charge itself, Mr Banning was convicted and discharged.6Approach on appeal[11] An appeal against sentence must be allowed only if the Court is satisfied thatthere has been an error in the sentence imposed and that a different sentence should beimposed.7 A material error requiring correction will be established if the sentence ismanifestly excessive or wrong in principle.8 The Court will not intervene where the5 Police v Banning, above n 3, at [2].6 At [16].7 Criminal Procedure Act 2011, s 250.8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[31].sentence is within the range that can properly be justified by accepted sentencingprinciples.9The appellant's submissions[12] Ms Harding submits that there is a dispute as to whether the Judge actuallymade a reparation order in respect of the Subaru Legacy. She says the Judge merelyreferred to $8,736.50 as the amount of damage caused to the Subaru. Ms Hardingsubmits that, had counsel realised the Judge had made such an order at sentencing,counsel would have asked the Judge to correct this.[13] However, even if an order was made, Ms Harding submits that this was in erroras the order was not required because Mr Banning is paying the value of the damagedirectly to Vero in instalments as a civil settlement. Ms Harding has produced on theappeal an email from Vero that confirms that, at least at the end of September 2022,Mr Banning has paid 13 instalments to Vero totalling $455.00.[14] Ms Harding submits that as Vero has already paid the owner of the Subaru,there is no loss to the owner for the damaged caused. Despite this, the reparation orderwould require Mr Banning to pay reparation to the owner, and thus would be payingfor the same damage twice. She notes that neither Vero, the police, nor the ownersought reparation. She argues that Vero clearly does not want to be paid through thecourt collection system and instead requires Mr Banning to pay the amount to itdirectly as a civil settlement.[15] In respect of the reparation order for $500, Ms Harding submits that there isnew information that makes this order inappropriate, namely that the owner of theHonda Jazz did not in fact have to pay the insurance excess. She submits that the $500amount was based on a "guesstimate" by the parties of what an insurance excess mightbe, given the insurer, IAG, had not been in touch at the time of sentencing. It has sincebeen confirmed that IAG waived that excess. Like the situation with the Subaru,Ms Harding notes that Mr Banning has entered into a payment plan with IAG forpayment by him of a total of $3,667.40 by instalments (although I note from9 At [36].submissions made today that there may need to be some adjustment to that figure).Accordingly, Ms Harding submits there was no loss to the owner after all and again,IAG and Mr Banning have entered into a private arrangement regarding payment byMr Banning.The respondent's submissions[16] Counsel for the respondent submit that the Judge plainly made both reparationorders in issue, and that the orders should be amended first, to make the amountspayable to the insurers, and second, to change the amount relating to the Honda Jazzin light of the new information provided.[17] In their written submissions, counsel refer to the scheme for reparation ordersunder the Sentencing Act, submitting that the court may impose a sentence ofreparation if an offender has, through or by means of an offence of which the offenderis convicted, caused a person to suffer loss. Counsel highlight that where a court islawfully entitled to impose a sentence or order of reparation, it must impose it unlessit is satisfied the sentence or order would result in undue hardship for the offender, orthat special circumstances would make it inappropriate.[18] Counsel submit that case law suggests there are two ways in which the Courtcan deal with reparation orders where loss or damage is insured. The first is to orderreparation payable directly to the victim's insurance company, as in Kennett v Police.10Counsel acknowledge that the High Court in Kennett did not explicitly refer to s 38 ofthe Sentencing Act 2002, which provides that every sum payable under a sentence ofreparation must be paid to the person who suffered the harm, loss, or damage, or, withthat person's consent, to the person's insurer. Counsel submit, however, that it can beinferred that the Court in Kennett was satisfied that the victim consented given he orshe proceeded with the insurer paying out his or her claim. The second (lesspreferable) approach, counsel submit, is to take into account the amounts the offenderhas agreed to pay under s 10 of the Sentencing Act, as in Suckling v Police.11Section 10(1) provides that the Court must take into account any offer of amends10 Kennett v Police [2014] NZHC 231.11 Suckling v Police [2019] NZHC 463.(including financial) and any remedial action the offender proposes to take in relationto the circumstances of the offending.[19] Counsel acknowledge that in determining whether a sentence of reparation isappropriate, the Court must take into account whether there is a right available to theperson who suffered the loss or damage to bring proceedings in relation to that loss ordamage. Counsel submit that this does not, however, preclude a sentence ofreparation; it is merely a factor to be taken into account to determining whetherreparation is the most appropriate remedy. Counsel submit that making the amendedreparation orders on the appeal would be consistent with the need to hold Mr Banningaccountable for his offending, and to ensure that he does pay the relevant amounts tothe insurers.[20] Alternatively, counsel submit that the matter should be remitted to the DistrictCourt for reconsideration of the sentence in light of the new matters before the Court,namely that Mr Banning is agreeable to paying the insurers directly for the amountsabove.Analysis[21] First, while it is not expressed in particularly clear terms, which is unfortunate,I am satisfied the Judge did make a reparation order in relation to the Subaru Legacy.The Judge clearly had before her a reparation report in relation to the Subaru Legacy,confirming damage in the sum of $8,736.50, and contrasted that with the fact that therewas no reparation schedule in relation to the Honda Jazz. It is in this context that theJudge's comments at the conclusion of her judgment are to be read, namely that on thecharge of operating a vehicle carelessly, she had "made the reparation orders" (plural).Further, it would have made no sense for the Judge to make a reparation order for $500where there was no reparation report, yet not make a reparation order where there wasa reparation report and more extensive damage. There is no suggestion Mr Banningargued undue hardship as a reason why the Judge might have ordered reparation inrelation to one vehicle but not the other.[22] Nevertheless, there being no express direction otherwise, at least on the faceof the Judge's sentencing notes, the reparation orders made by the Judge have theeffect of requiring Mr Banning to pay the reparations directly to the victims concerned.Given both victims have already been paid out in full by their respective insurer, itwould plainly be an error for Mr Banning to be ordered to make those paymentsdirectly to the victims, which would effectively amount to a "windfall" to them, andinvolve a double payment by Mr Banning.[23] I am not satisfied, however, that the reparation orders ought to be amended onthis appeal to require that they are paid directly to the insurers. Rather, I consider thatthe reparation orders ought to be quashed altogether. There are two reasons for this.[24] First, there is no evidence before the Court that the victims consent to thereparations being paid to the insurers. As noted, pursuant to s 38 of the SentencingAct, there must be consent from the victim before the Court can order reparationspayable direct to an insurer. This is not a mere technicality, but a statutoryrequirement. I cannot accept the respondent's submission that I should "infer" consentby the fact that the victims have accepted the pay-outs from their insurers. Rather, Iexpect the victims have simply not been approached about this matter. One cannotconsent to something one does not know about.[25] I accept that the reparations were ordered to be paid to an insurer in Kennettand there is no direct reference in the judgment to the victim consenting to this. It isnot known, however, whether there was evidence of consent before the Court inKennett, and that simply was not referred to in the judgment, or alternatively, it mayhave simply been an oversight that s 38 requires the victim's consent. It also appearsthat the insurer was involved in the preparation of the reparation report in that case,which does not appear to be so in this case.[26] The second reason why I do not consider it appropriate to amend the reparationorders is that pursuant to s 32(3) of the Sentencing Act, a court must take into account,when determining whether a reparation order is appropriate, whether there is or maybe a right available to the person who suffered the loss or damage to bring proceedingsor to make any application in relation to that loss or damage. This is relevant becauseit is clear that each of the insurers concerned has chosen to engage with Mr Banningand come to a private arrangement with him that he will pay the amounts sought byway of instalments.[27] IAG noted with Mr Banning that absent such an arrangement, the matter wouldbe referred to the Disputes Tribunal. Insurers have the right of subrogation, and thuscould bring a claim against Mr Banning in the Disputes Tribunal in negligence,essentially "standing in the shoes" of the vehicle owner. No such proceedings havebeen commenced and I therefore proceed on the basis that IAG is satisfied that thearrangement it has in place with Mr Banning is sufficiently robust for it not to proceedto proceedings. Not all communications between Vero and Mr Banning are before theCourt, but the Vero correspondence dated 23 May 2022 refers to earliercommunications between the parties and to an agreement that the matter is "settled"by Mr Banning paying the amount due by way of instalment payments. Again, itappears that Vero is satisfied with this arrangement, and has not sought to takeproceedings against Mr Banning before the Disputes Tribunal.[28] IAG and Vero are sophisticated entities. Neither sought a reparation order inthis proceeding (unlike the insurer in, for example, R v Tuhi12). Given the insurers'rights against Mr Banning (by way of subrogation), the payment arrangements now inplace and that they are part-performed (at least in relation to the Subaru Legacy), inthe particular circumstances of this case I do not consider it necessary to "overlay"those arrangements with reparation orders. The need to hold Mr Banning accountablefor his offending is suitably met by the other aspects of the sentence imposed by theDistrict Court, and the private payment arrangements he has entered into with the twoinsurers.[29] For these reasons, the appeal is allowed. The reparation orders made in theDistrict Court are quashed._____________________________Fitzgerald J12 R v Tuhi [2012] NZHC 2955, at [27] and [42].