Andrews v Collections HC Dunedin CRI 2010-412-17

[2010] NZHC 935

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2010-412-000017

WAYNE PHILLIP ANDREWS

v

COLLECTIONS

Hearing:         9 June 2010

Appearances: A Dawson for Appellant

L C Denton for Police

Judgment:      9 June 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      This is an appeal against a sentence of four months’ community detention imposed in lieu of outstanding fines.

Factual background

[2]      The appellant is aged 28 years and has a casual job at Macrae’s Mines.  He had outstanding fines of $33,929 arising from a multiplicity of driving infringement offences that were committed between 2002 and December 2009.  Of the $33,929 that was outstanding, $10,474 of it comprised enforcement fees.

[3]      The  information  before  the  District  Court  Judge  included  a  pre-sentence report.   It told the Judge that in addition to the appellant’s numerous infringement

ANDREWS V COLLECTIONS HC DUN CRI-2010-412-000017 9 June 2010

offences,  he  also  has  convictions  which  include  resisting  police,  disorderly behaviour, dishonesty, driving offences and breach of community work.

[4]      At  the  time  of  the  decision  under  appeal,  the  appellant  was  subject  to cumulative sentences of 119 and 40 hours’ community work that had been imposed on 12 May 2009 and 1 December 2009.  Both sentences were imposed in respect of breach action on earlier sentences.

[5]      As at the date of sentencing, the appellant had completed 86.5 hours, leaving

72.5 hours outstanding.   His attendance was reported as having been erratic.   The appellant had been excused on 22 occasions for medical reasons and had failed to report on seven occasions.

[6]      As  regards  the  outstanding  fines,  the  pre-sentence  report  recorded  the appellant as having told the probation officer that because he was a casual worker his income was often unpredictable.   He was also recorded as having expressed both embarrassment and frustration at incurring such a substantial number of driving infringements over such a significant period of time.  He further stated that having recently been granted custody of his two year old son, he was wanting to get things sorted, move forward financially and provide for his family with less hindrance.  In short, Mr Andrews the appellant was wanting to make a clean slate of things so he could start afresh.  It appears, indeed, that it was Mr Andrews himself who initiated the application that subsequently came before the District Court Judge.

[7]      The pre-sentence report concluded by advising the Judge that because of Mr Andrew’s four previous breaches, CPS Community Work staff considered him unsuitable for a further sentence of community work.   The recommendation was therefore community detention with specified special conditions.

[8]      The District Court Judge agreed with that recommendation and imposed a sentence of four months’ community detention in respect of fines of $10,000.  The Judge said he was not prepared to remit all of the appellant’s fines, saying:

[3]      What I intend to do is this.  You will be sentenced to four months’

community detention and that will be in respect of outstanding fines of

$10,000.  I am not prepared to remit all of your fines for you to simply sit back, stay at home, and go to work as and when you see fit.  The matter of the balance of your outstanding fines can be reviewed in four months’ time. What should happen with the balance of the fines can then be considered, taking into account what you have done plus the community work.

[4]       There will be three conditions of the community detention.  The first is that the curfew address will be 10 Larkins Street, Helensburgh, Dunedin. Secondly, the curfew will commence on 14 April 2010.   And thirdly, the curfew hours will be 7.00 pm to 7.00 am daily.

[5]       Once  that  sentence  has  been  completed,  and  hopefully  that  will provide you with an incentive to comply, then the outstanding fines can be looked at.

Grounds of appeal

[9]      On appeal, the appellant does not challenge the imposition of a sentence of community detention.   However, he submits that all of the fines and not just the

$10,000  should  have  been  remitted  because of  his  personal  circumstances.    He contends that the Judge’s failure to remit all of the fines means the sentence was manifestly excessive.

[10]     In support of that submission counsel, Mr Dawson, contended that the Judge had failed to take into account:

i)The nature of the fines, in that they were for infringement offences,   ie   less   serious   offending,   and   also   that   they comprised a significant portion of enforcement fees.

ii)The attempts that had been made by the appellant to pay the fines.

iii)The need to have a clean slate, given changed domestic circumstances, Mr Dawson submitting that the remission provisions have as their underpinning principle the desirability of allowing people to make a clean start.

iv)The Judge failed to take into account that the difficulties experienced in complying with community work had been in

large measure due to a knee injury.  The Judge was not aware of the knee injury and subsequent surgery, only that there were medical issues – something which perplexed the Judge, it appears, given he was also aware the appellant has a job at the mines.

v)The sentence has proved to be somewhat counter-productive because  of  the  curfew  hours.  These  have  impeded  the

appellant in being able to take up work at the mines.

Discussion

[11]     Mr  Dawson  has  said  all  that  could  possibly  be  said  on  behalf  of  this appellant, and he has said it well.

[12]     In imposing the sentence he did, the Judge was exercising powers under s 88 of the Summary Proceedings Act 1957.  As Mr Dawson properly acknowledged, the discretion is a broad one and partial remission of fines, as occurred in this case, is reasonably common practice.

[13]     In the decision of Sheary v Registrar of Collections Unit at Tauranga HC Tauranga CRI-2008-463-000072, 23 December 2008, Williams J helpfully identified the factors which a Court should take into account in exercising its discretion:

•    The gravity of the offending.

•    The number of offences.

•    The offender’s previous record of offending.

•    The totality of the fines being imposed.

•    The offender’s personal circumstances including his ability to pay.

•    The time over which the offending occurred.

•    The numerous other circumstances conventionally taken into account by

Courts in deciding on the appropriate penalty and its level.

[14]     I accept that in this case the District Court Judge has not expressly articulated all of the factors identified in Sheary.   However, that of itself does not mean his decision was wrong.   It is unreasonable to expect a busy District Court Judge to articulate each and every one of the factors.

[15]     In my view the decision the Judge was reached was an entirely appropriate one in all the circumstances, and the sentence cannot conceivably be described as manifestly excessive.   The Judge was undoubtedly cognisant of the appellant’s personal circumstances and took them into account.   As Miss Denton submits, it would arguably have been open to the Judge to have imposed a term of home detention or even a term of imprisonment.  As it was, the Judge imposed a far less restrictive outcome.   Miss Denton also points out that four months’ community detention for remission of such a substantial sum as $10,000 can also be fairly regarded as relatively lenient treatment having regard to the approach taken in other decisions.

[16]     In addition, the Judge has left the door open for this appellant.   He has directed there is to be a review in four months’ time, once the appellant has had an opportunity to complete his sentence of community detention as well as the outstanding hours of community work.

[17]     I agree with Ms Denton’s submission that this was an appropriate response given the past history of non-compliance which cannot be explained away by the medical problems, as well as the persistent offending.

[18]     The need for a clean slate is important in remission cases, but so too is the integrity of the sentencing system.  The sentence in this case was clearly designed to give the appellant an opportunity to demonstrate the genuineness of his resolve to make a fresh start and to change his ways.  I am confident that if he does that in the next four months, he will meet with a favourable reception from the District Court.

[19]     Finally,  as regards the  further point raised by Mr Dawson  regarding the practical difficulties being caused by the curfew hours, in my view the most appropriate way of dealing with that is for the appellant to apply for a variation

through the relevant authorities, rather than for me to vary the sentence without knowing the full details.

[20]     In short, I am satisfied that although as I have said Mr Dawson has said everything that could possibly be said, there are no grounds for interfering with this decision.  It was a decision that was open to the Judge and in my view was a wise decision.

[21]     The appeal is accordingly dismissed.

Solicitors:

Aspinall Joel, Dunedin

Crown Solicitor’s Office, Dunedin