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Court of Appeal of New Zealand |
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Court of Appeal of New ZealandLast Updated: 22 September 2011
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CA669/2010
[2011] NZCA 457 |
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BETWEEN JOHN KENNETH SLAVICH
Appellant |
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AND THE QUEEN
Respondent |
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Hearing: 29 August 2011
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Court: Stevens, Ronald Young and Venning JJ
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Counsel: Appellant in Person
M D Downs for Respondent |
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Judgment: 16 September 2011 at 10.30 am
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JUDGMENT OF THE COURT
A The application for adjournment of this appeal is refused.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
[1] 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]
[2] 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.
[3] 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
[4] Before we turn to consider the merits of the substantive appeal there are several matters which need to be dealt with.
Adjournment
[5] Firstly, at the commencement of the hearing Mr Slavich applied for an adjournment. We refused the application. We now record our reasons. Mr Slavich had previously filed an application for an adjournment on 16 August which had been refused by this Court on 18 August.
[6] The grounds of Mr Slavich’s application for an adjournment can be summarised in this way. He has before the Supreme Court proceedings challenging his original fraud convictions. We understand the appellant is seeking a recall of a judgment of the Supreme Court which refused him leave to appeal his conviction. He submitted that this Court should delay the hearing of this appeal until all proceedings before the Supreme Court are resolved.
[7] The application was essentially based on the same grounds as his application of 16 August which was refused. We considered there was no reason now for us to delay the hearing of this appeal. The fact that Mr Slavich may have proceedings relating to his criminal conviction before the Supreme Court is not a reason to delay this appeal. Mr Slavich was convicted of the offending which gave rise to the reparation order in 2006. The order relating to an alternative sentence of four and a half months’ imprisonment was made in September 2010 with the six month suspension expiring in March 2011. Almost six months has passed since that expiry. Given the extensive delay already this appeal should now be heard and resolved.
[8] For those reasons, therefore, the adjournment application was refused.
Interlocutory application
[9] The second application was described by Mr Slavich as an interlocutory application regarding professional issues (contempt of Court) and directions under s 16 of the Judicature Act 1908. We also refused that application at the hearing of the appeal.
[10] After the oral hearing of Mr Slavich’s appeal he sent by email to the Registrar of the Court of Appeal a letter together with what he described as a précis of his oral submissions as to why the Court should grant his interlocutory application. We have read this further written material. We have not found it necessary to refer the material to the Crown. The material is essentially another summary of Mr Slavich’s interlocutory application and submissions previously filed in support of that application.
[11] Mr Slavich sought orders that Mr Downs, counsel for the Crown, be found in contempt of Court; that we prohibit him from acting as counsel in this case; that we prohibit anyone from Crown Law or any Hamilton Crown prosecutors from representing the Crown in this appeal; and that further, this Court recall its decision on Mr Slavich’s appeal against conviction.[3]
[12] The reason for the applications appears to relate to Mr Slavich’s claim that there is missing evidence and documents relating to his trial for fraud. He complains about the Crown’s actions relating to this evidence. As we pointed out to Mr Slavich these are matters not covered by the present appeal. This appeal relates solely to the correctness, or otherwise, of the sentence of imprisonment in substitution for the reparation order. The interlocutory applications do not relate, therefore, to this appeal.
[13] The interlocutory applications are, therefore, refused together with the ancillary application made by Mr Slavich that under r 45 of the Court of Appeal (Civil) Rules we direct Mr Downs to file an affidavit.
“New” evidence
[14] The third pre-appeal application relates to an application for admission of what the appellant said was “new evidence” at this appeal relating to his capacity to meet the reparation order.
[15] The proposed evidence is tendered in affidavits from three members of the appellant’s family; his brother, Anthony Slavich, his mother, Delma Slavich and his daughter, Kirsty De Meyer, as well as the appellant. Mr Slavich’s submission was that this evidence was new evidence and that it established that White J had been wrong in some of his evidential findings in the High Court.
[16] This Court in R v Bain[4] identified the importance of the requirements of freshness and cogency being established in such an application.
[17] The Crown response to the application was that the evidence was neither new nor fresh given there was no explanation provided by the appellant as to why the evidence could not have been called at the hearing before White J. However, the Crown stance on admissibility was neutral, especially given the appellant was self represented. It took the view that the affidavit evidence supported White J’s factual conclusions.
[18] A brief summary of the proposed evidence is necessary. Anthony Slavich is a trustee of the K A S Family Trust and the director of Slavich Properties Limited. The beneficiaries of the Trust are the appellant’s children. Mr Anthony Slavich’s evidence was that the Trust was a one third shareholder in the company. He said that prior to conviction “the trustees arranged for some modest payments to him (the appellant) for his living expenses”. He said that the company had paid approximately $37,500 towards the appellant’s legal fees. Mr Anthony Slavich said he would not authorise payments from the Trust for the reparation as that would breach his obligations as trustee.
[19] Delma Slavich, the appellant’s mother, said she had paid legal fees of approximately $37,650 prior to the appellant’s conviction. She said she had also made small contributions towards his living expenses. However, she said she would not pay reparation on the appellant’s behalf as “that would be tantamount to agreeing with the Courts decision that he was a fraudster”. She said she had encouraged other family members “to treat the issue in the same way which I have done”.
[20] Finally, the appellant’s daughter, Mrs De Meyer. She had paid $5,000 towards her father’s legal fees personally. In addition, she said that the Trust had made no payments toward her father’s expenses since conviction. She confirmed she was a director of the Slavich company and had authorised payments for the appellant’s legal fees. She agreed with the approach taken by her grandmother, that is, that no reparation would be paid on the appellant’s behalf because that would be tantamount to agreeing with the Courts decision that the appellant was a fraudster.
[21] Clearly the evidence tendered is not fresh in the sense that it could have been given at the High Court hearing. The appellant says, however, he could not have anticipated that this evidence would have been needed in the High Court. This evidence, he said, was to correct factual errors made by the High Court Judge in his judgment.
[22] In Court we pointed out to the appellant the Crown submission that much of this affidavit evidence could be said to support the Judge’s factual conclusions regarding the availability of family money to pay the appellant’s reparation. We asked Mr Slavich in view of that submission whether he still wanted us to read the affidavit evidence in his appeal. He said that he did wish to continue with his application to admit this evidence.
[23] In the circumstances we are prepared to admit the further affidavit evidence. While it is not, strictly speaking, fresh evidence it does relate directly to the issues in the case and we appreciate that Mr Slavich may not have understood as a lay litigant his obligations at the hearing in the High Court.
[24] We, therefore, allow the affidavits from Mr Anthony Slavich, Mrs Delma Slavich and Ms Kirsty De Meyer, together with the appellant’s affidavit relating to these matters to be read in this appeal.
Substantive appeal
Background
[25] The appellant was found guilty on six charges of dishonesty after a trial. At sentencing as to the sentence of imprisonment Heath J said:[5]
Assessing the totality of your offending I take the view that an end sentence of two years, three months’ imprisonment should be imposed having regard to the reparation order I will also make.
[26] The Judge observed that the appellant’s bankruptcy would not discharge a debt incurred by fraudulent means and so it was not “an empty exercise to order reparation”. The Judge was satisfied that the appellant’s offending had caused a substantial loss to two financial institutions.
[27] The Judge then fixed the amount of reparation at $60,000 – $30,000 payable to each of the two financial institutions who had suffered loss. He gave the appellant 12 months within which to pay the reparation.
[28] The appellant did not pay the reparation. He unsuccessfully appealed his conviction. He applied for leave to appeal to the Supreme Court but that application was dismissed.
[29] On 18 February 2010 Heath J approved the issue of a warrant under s 19DA of the Crimes Act 1961 to show cause why the appellant should not be sentenced for the non-payment of reparation. The matter originally came before Andrews J in early 2010. She refused an application for an order staying an enforcement of the reparation order. The s 19DA case was then due to be heard on 19 June 2010 but the Crown sought an adjournment to make enquiries about the appellant’s statement of assets and liabilities, income and expenditure. The case was adjourned to 6 August 2010.
[30] On that date Mr Slavich again sought an adjournment of the application to impose a substituted sentence. The case was adjourned but only for a day to allow Mr Slavich to produce an affidavit which he said would prove, in part at least, that he had made payment of the reparation. He produced an affidavit but the Crown sought further time to investigate it. The case was further adjourned with a timetable for the exchange of evidence.
[31] The matter came before the Court on 10 September for hearing. Before that hearing Mr Slavich once again sought an adjournment but given there had already been four adjournments the case proceeded on 10 September.
The decision appealed from
[32] At the beginning of the hearing in the High Court on 10 September Mr Slavich once again applied for an adjournment which was refused. Two matters of particular relevance to this appeal were decided by White J.
[33] He said:
[13] Third, I am satisfied that Mr Slavich’s case may be distinguished from R v Raymer on the ground that Mr Slavich has had access to funds from his family trust for the payment of his legal fees and that his family trust would be able to meet the outstanding reparation.
[14] Fourth, there is no question that Heath J did discount the sentence on the grounds of both reparation and parity. The apportionment of 50:50 between a discount for reparation and the discount for parity is appropriate and I agree with the submission for the Crown that an inference to that effect may be drawn.[6]
[34] As a result the Judge made an order for the imprisonment of Mr Slavich for a term of four and a half months but said the order would be suspended for six months to enable Mr Slavich to arrange for the reparation to be paid. He then authorised the issue of a warrant for arrest of Mr Slavich if the reparation had not been paid by that date.
The law
[35] Sections 19 to 19E of the Crimes Act 1961 provide for the payment of monetary penalties, their collection, and for alternative sentences when they are unpaid. Section 19C authorises the issue of a warrant to collect the money owing and sub (2) authorises a report from a constable who executes the warrant as to the means of the offender.
[36] Section 19D provides as follows:
19D Execution
Where a constable [[or bailiff]] makes a report as mentioned in section 19C of this Act, the Judge who sentenced the offender to pay the fine or who ordered the offender to pay the other sum of money or, if that Judge is not available, any other Judge, shall consider the report and may make such order as he thinks fit including an order for the remission of either the whole or part of the fine or other sum of money, an order for the issue of a writ of sale or an order for the immediate imprisonment of the offender, or an order allowing time for payment or allowing payment by instalments.
[37] And s 19DA, sub (1) and (2) provide as follows:
19DA [[Community work]][[, community detention, and home detention]] for non-payment of fine
(1) In any case where, under section 19D of this Act, an order may be made for the imprisonment of any person in respect of the non-payment of any fine or other sum of money, the Judge may issue a summons to that person, or, whether or not a summons has been issued or served, may issue a warrant to arrest that person and bring him before the High Court.
[[(2) On the appearance of that person before the Court, the Court may, in its discretion, after considering the report referred to in section 19D, and after taking into account any other fines and any amount of reparation owing by that person, sentence that person to community work[, community detention, or home detention] in accordance with the relevant provisions of Part 2 of the Sentencing Act 2002.]
[38] A Judge making orders for an alternative sentence pursuant to s 19D or s 19DA does not have to be satisfied the offender has had the means to pay the penalty since its imposition. In this case the Judge, however, was satisfied that Mr Slavich had the means through family members to pay the reparation owing.[7]
Discussion
[39] To return to the appellant’s grounds of appeal. The first and second grounds are essentially the same point. That is, the Judge was not entitled to conclude that the appellant’s family trust would be able to meet the outstanding reparation.
[40] The appellant says that the “new” evidence before this Court in the affidavits establishes that the trustees will not pay the outstanding reparation nor indeed will any member of his family. Thus, when the Judge said the appellant had access to funds to pay the reparation he was wrong.
[41] The evidence, both in the High Court and before this Court, clearly established that either through the family trust, the family company or individual family members the reparation could be paid. Those entities have already paid $80,000 of Mr Slavich’s legal fees as well as an unknown amount by way of contribution towards his living expenses prior to his conviction. The family members now say that neither the trust nor the company nor individually will they make further payments on behalf of Mr Slavich, because as Mrs Slavich said they consider the High Court decision convicting Mr Slavich for fraud is wrong.
[42] Mr Slavich accepted in Court that, with appropriate agreement by the trustees, and the beneficiaries (for the trust) or the directors of the company or individual family members, the reparation could be paid. It is clear, therefore, that family “interests” could pay the reparation on behalf of the appellant but currently choose not to do so.
[43] The Judge in the High Court understood that the trust had paid the appellant’s legal fees. Mr Slavich emphasised the Judge was wrong in reaching this conclusion. The factual material we have before us indicates that the legal fees appear to have been paid by a combination of the family company and family members. However, we consider this distinction hardly matters. The point is, as Mr Slavich accepted, family interests have paid his legal fees and some of his living expenses. These same interests could, if they chose, pay his reparation. The Judge’s conclusion, therefore, that family interests could have made payment of his reparation was correct. We therefore reject the appellant’s first two grounds of appeal.
[44] As to the third ground of appeal, that the Judge failed to follow the Raymer decision in the High Court, two points can be made. Firstly, neither the Judge in the High Court in this case, nor this Court need to follow the Raymer decision. However, more importantly, the facts in Raymer were quite different. There, the Judge satisfied himself that neither the appellant nor the appellant’s family members had the capacity to pay reparation. Further, the Judge in Raymer was influenced by the fact that the Court of Appeal had already increased Mr Raymer’s sentence as a result of a Crown appeal. This case is quite different. Here it is clear the appellant’s family members do have the capacity to make payment of reparation. We, therefore, reject the third ground of appeal. We consider the Raymer decision can be confined to its particular facts.
[45] Finally, the appellant has concentrated in his submissions on his inability to pay the reparation since his release from prison. This is understandable given the focus, at least in part at the High Court hearing, was on the appellant’s ability to pay. However, as we have observed an ability to pay the reparation since its imposition is not a prerequisite to an alternative sentence being imposed under s 19D or s 19DA.
[46] By September 2010, when the decision was given in the High Court substituting a sentence of imprisonment for the reparation order, four years had expired since the making of the order and three years since payment was due. Section 19D empowers a Judge where there has been a failure to pay a monetary penalty to impose instead a sentence of imprisonment. This is what the High Court did and what it was empowered to do in this case.
[47] We are satisfied the High Court correctly assessed the length of imprisonment to be substituted on the basis of the reduction in the period of imprisonment given to the appellant in the original sentencing by Heath J assuming the reparation was paid. We consider this was the correct approach in the circumstances.
Summary
[48] For the reasons given, therefore, we reject the appellant’s grounds of appeal. We are satisfied that the Judge properly made an order under s 19D substituting a sentence of imprisonment for the reparation. Rather than confirm the imposition of the sentence of imprisonment immediately, we give Mr Slavich one further opportunity until 17 October 2011 within which to pay the reparation.
[49] The warrant of imprisonment is, therefore, suspended until 17 October 2011. If Mr Slavich pays the reparation in full within that time then the order for imprisonment will be cancelled. If he does not do so then he is, by 5 p.m. on 18 October 2011, surrender himself to the Hamilton Police so that he may be taken to prison to serve his sentence of imprisonment.
Solicitors:
Crown Law Office, Wellington for Respondent
[1] R v
Slavich [2009]
NZCA 188.
[2]
R v Raymer HC Wellington T 119/89, 15 December 1992.
[3] R v Slavich [2009] NZCA188.
[4] R v Bain [2004] 1 NZLR 638.
[5] R v Slavich HC Hamilton CRI 2006-419-89, 21 November 2006 at [52].
[6] R v Slavich HC Hamilton CRI 2006-419-89, 10 September 2010.
[7] At [13].
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