The Triple Lottery

Abstract

Under s 32 of the Sentencing Act 2002 reparation may be imposed for “emotional harm” and “loss or damage consequential on [...] physical harm”. This conflicts with New Zealand’s Accident Compensation Scheme (ACC) if the physical or emotional harm is covered by ACC. Following the Supreme Court decision in Davies v Police, amendment to s 32 allows reparation to be imposed for “statutory shortfalls” in ACC entitlements. In practice the sentence has been misapplied and is a triple “lottery” for victims. Judicial misapplication of reparation has resulted in layering of compensation, facilitating double recovery. Reparation for “emotional harm” and “loss or damage consequential on [...] physical harm” was inserted to include victims of “real crime” in the sentencing process and provide them with more avenues to obtain compensation, but in practice reparation payments have disproportionately affected offenders under the Health and Safety at Work Act 2015 (HSWA). The purpose of this paper is to assess whether the sentences of reparation for “emotional harm” and “loss or damage consequential on [...] physical harm” should be retained in light of the conflict with ACC and recent HSWA cases.