Torrance v The Queen

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2019-488-11

[2019] NZHC 1316

BETWEEN
DAVID AIRD TORRANCE

Appellant

AND

THE CROWN

Respondent

Hearing: 11 June 2019

Appearances:

Appellant in person

R B Annandale for the Respondent

Judgment:

11 June 2019

ORAL JUDGMENT OF GAULT J

Solicitors / Parties:
Mr D A Torrance
Mr R B Annandale, Marsden Woods Inskip Smith, Office of the Crown Solicitor, Whangarei

TORRANCE v THE CROWN [2019] NZHC 1316 [11 June 2019]

[1] Mr Torrance pleaded guilty to one charge of careless driving causing injury.1 He is a 68-year-old pensioner. On 12 October 2018 he was driving along Mangapai Road and lost control of his car on a moderate right hand corner and collided with a car driven by the victim, Ms Metcalf. Ms Metcalf suffered serious injuries, including two fractured vertebrae and a smashed disk in her neck.

[2] Judge G L Davis in the Whangarei District Court sentenced Mr Torrance to 250 hours community work and disqualified him from driving for a period of six months, noting his history of speeding. In addition, the Judge required Mr Torrance to pay reparation totalling $6,309.75, comprising $2,809.75 for the loss of property and a further $3,500 for emotional harm, at a rate of $50 per week, beginning on 17 May 2019.

[3] Mr Torrance is unrepresented. He appeals the sentence of reparation on the basis he will have major difficulty paying it and queries why ACC is not covering the accident.

[4] In advance of the hearing Mr Torrance submitted a handwritten note, raising four issues:

(a)The Notice of Court fine does not allow for the instalments indicated by Judge Davis.

(b)The loss of property should be covered by insurance.

(c)The emotional harm should have been covered by ACC.

(d)Whether the reparation is for the injuries and not the carelessness (the corollary presumably being that it should also be covered by ACC).

1 Land Transport Act 1998, s 38. Maximum penalty 3 months’ imprisonment and a fine not exceeding $4,500.

Discussion

[5] On a sentence appeal this Court will only disturb the sentence if the appellant can show it was manifestly excessive or wrong in principle.2

[6]The Crown responds to the issues raised by Mr Torrance as follows:

(a)The Notice of Court Fine says the appellant can call a number to arrange the instalment plan signalled by Judge Davis. If Mr Torrance had called that number, the instalment plan would have been put in place.

(b)The $2,809.75 imposed for the loss of property would have been for loss not covered by insurance.

(c)Only lost wages and some treatments are covered by ACC. Reparation for emotional harm is not covered.

(d)If no payments are missed, then the appellant will pay off the reparation within two and half years. The Crown says this is not manifestly excessive given previous authority.3

[7] I consider the Crown’s points sufficiently address Mr Torrance’s issues except for Mr Torrance’s last issue above, regarding whether reparation is for injuries and not carelessness. But I consider it is clear from Judge Davis’ judgment that the reparation is to cover property loss and emotional harm, neither of which is covered by ACC.

[8] On Mr Torrance’s first point, being his concern that he had to pay the full amount immediately, I have some sympathy for Mr Torrance. I have a copy of the Notice of Fine, and on its face it does seem to require him to pay the full amount immediately. At two prominent places on the document is the total amount, followed by a request: “Please pay by 31 May 2019”. The only mention of instalments is in a small line which says “call … to discuss paying your fine over time”. While it would

2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]-[35].
3 Guiness v Police [2015] NZHC 883.

have been best for Mr Torrance to call that number first, or seek advice from elsewhere, I can understand his concern at the notice that does not appear to conform to the Judge’s order. The Judge was clear that the reparation is to be paid at a rate of
$50 per week, so this is not an appeal point.

[9] The final issue is whether the sentence of reparation imposed is manifestly excessive. Mr Torrance says he will have major difficulty paying the amount. He clarified that he was particularly referring to paying the full amount now. To this extent this issue falls away, as noted above. In relation to $50 per week, beyond his status as a pensioner, Mr Torrance has not provided any evidence of his income or financial position. In the absence of this, I do not consider a sentence to pay $50 per week for two and a half years was manifestly excessive. Courts have frequently adopted the position that reparation that would force a defendant to pay reparation over a period of more than five years will be excessive.4 This sentence, however, does not come near that threshold.

[10]Mr Torrance has not disputed any other part of his sentence.

Conclusion

[11]For these reasons, I dismiss the appeal.

Gault J

4 See, for example, Guinness v New Zealand Police [2015] NZHC 883; and Lawrence v Police
[2019] NZHC 916.

The case of Torrance v The Crown involves Mr. David Aird Torrance, who was convicted of careless driving causing injury and sentenced by Judge G L Davis in the Whangarei District Court to 250 hours of community work, a six-month driving ban, and reparation of $6,309.75 for property loss and emotional harm. Mr. Torrance appealed the reparation amount on the grounds that he would have significant difficulty paying it, and questioned why the Accident Compensation Corporation (ACC) was not covering the accident costs. He raised four issues, including concerns about the immediate payment requirement, the coverage of loss of property by insurance, the coverage of emotional harm by ACC, and the basis of the reparation amount.

The legal issues before the court were whether the reparation amount was manifestly excessive or wrong in principle, and whether the reparation should have been covered by ACC. The Crown argued that the reparation was for losses not covered by insurance or ACC, and that the reparation amount was not manifestly excessive. The court noted that the reparation was intended to cover property loss and emotional harm, neither of which is covered by ACC. The court also considered Mr. Torrance's concern about the immediate payment requirement, noting that while the Notice of Fine did not conform to the Judge's order, the reparation was to be paid at a rate of $50 per week, not immediately in full.

After considering the issues, the court determined that the reparation amount was not manifestly excessive. Although Mr. Torrance had some difficulty with the immediate payment requirement, this was not an appeal point as the reparation was to be paid at a rate of $50 per week. The court also noted that courts have held that reparation that would force a defendant to pay over a period of more than five years would be excessive, and this sentence did not come near that threshold. The court dismissed the appeal, as Mr. Torrance had not disputed any other part of his sentence.

The final orders of the court were to dismiss the appeal, with no other orders made. The reparation amount of $6,309.75, to be paid at a rate of $50 per week, was upheld. The court found that the reparation was not manifestly excessive or wrong in principle, and that the concerns raised by Mr. Torrance did not warrant a change in the sentence.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established