	Home \| Databases \| WorldLII \| Search \| Feedback Court of Appeal of New Zealand

Home | Databases | WorldLII | Search | Feedback

Court of Appeal of New Zealand

You are here: NZLII >> Databases >> Court of Appeal of New Zealand >> 2006 >> [2006] NZCA 131

The Queen v Hawken [2006] NZCA 131 (21 June 2006)

Last Updated: 13 July 2006

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 "has no assets or income". Mr Ruffin does not dispute that. Mr Hawken is currently in prison. He hopes to get paid employment as soon as he is released – in October 2006. It is very difficult to gauge what his employment prospects are.
[6] The only "asset" which Mr Hawken has is the potential claim against one John Russell for an alleged debt of about $400,000. This was the potential asset referred to at sentencing and noted above (at [4]). Mr Russell continues to dispute the debt. It is next to impossible to determine the strength of Mr Hawken’s claim. In any event, Mr Hawken does not have the funds to instruct counsel in respect of prosecuting the claim.
[7] In the circumstances, we are satisfied that it remains the case that there is no realistic prospect of Mr Hawken being able to pay anything by way of reparation in the foreseeable future. For that reason, we are satisfied that the sentence of reparation must be quashed.
[8] It will be open to the Commissioner of Inland Revenue to proceed against Mr Hawken for the sum of which he defrauded the revenue. If Mr Hawken is bankrupted, then Inland Revenue will be able to assess the chances of success on the claim against Mr Russell. If Inland Revenue thinks the claim has reasonable prospects, then it may wish to underwrite the Official Assignee’s prosecution of that civil claim. As well, Inland Revenue may be in a position to probe the fact that certain Hawken "family" assets appear to be held in a trust controlled by Mr Hawken’s wife. There is no evidence before us as to whether the trust has legitimately acquired those assets, which include the Hawken family home.

Solicitors:
Crown Law Office, Wellington

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2006/131.html

[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:

[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 "has no assets or income". Mr Ruffin does not dispute that. Mr Hawken is currently in prison. He hopes to get paid employment as soon as he is released – in October 2006. It is very difficult to gauge what his employment prospects are.
[6]	The only "asset" which Mr Hawken has is the potential claim against one John Russell for an alleged debt of about $400,000. This was the potential asset referred to at sentencing and noted above (at [4]). Mr Russell continues to dispute the debt. It is next to impossible to determine the strength of Mr Hawken’s claim. In any event, Mr Hawken does not have the funds to instruct counsel in respect of prosecuting the claim.
[7]	In the circumstances, we are satisfied that it remains the case that there is no realistic prospect of Mr Hawken being able to pay anything by way of reparation in the foreseeable future. For that reason, we are satisfied that the sentence of reparation must be quashed.
[8]	It will be open to the Commissioner of Inland Revenue to proceed against Mr Hawken for the sum of which he defrauded the revenue. If Mr Hawken is bankrupted, then Inland Revenue will be able to assess the chances of success on the claim against Mr Russell. If Inland Revenue thinks the claim has reasonable prospects, then it may wish to underwrite the Official Assignee’s prosecution of that civil claim. As well, Inland Revenue may be in a position to probe the fact that certain Hawken "family" assets appear to be held in a trust controlled by Mr Hawken’s wife. There is no evidence before us as to whether the trust has legitimately acquired those assets, which include the Hawken family home.