Austin v Christchurch Collections Unit

[2014] NZHC 2514

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000082 [2014] NZHC 2514

MICHAEL JOHN AUSTIN

v

CHRISTCHURCH COLLECTIONS UNIT

Hearing:	14 October 2014
Appearances:	R A Peters for Appellant S J Jamieson for Crown
Judgment:	14 October 2014

JUDGMENT OF DUNNINGHAM J

[1]      The appellant, Mr Austin, owes the respondent $7,521.26 in unpaid fines and approximately $75,000 in outstanding reparation.

[2]      On 13 August 2014, Judge E Smith, remitted the sum of unpaid fines and substituted a sentence of 250 hours’ community work cumulative on any community work outstanding. The Judge left the order for reparation untouched.

[3]      Mr Austin now appeals on the grounds that:

(a)       the  starting  point  of  300  hours’  community  work  adopted  by

Judge Smith  was  too  high  and  as  a  result  the  end  sentence  of

250 hours’ community service is manifestly excessive; and

(b)      the  Judge  did  not  take  into  account  Mr  Austin’s  longstanding

repayment of his outstanding reparations.

AUSTIN v CHRISTCHURCH COLLECTIONS UNIT [2014] NZHC 2514 [14 October 2014]

[4]      By way of background, Mr Austin has been incurring fines and reparation orders against him since at least 1988.  The respondent records regular payments of these penalties from that time, most of them in weekly instalments in varying amounts.   Most recently Mr Austin has directed $50 per week to repayment, apparently  from  his  domestic  purposes  benefit,  the  last  payment  received  on

25 June 2014.

[5]      It is relevant to note that Mr Austin has received an alternative sentence of community work in lieu of unpaid fines on four previous occasions:

(a)       1 July 2010:  60 hours’ community work for $3,600 of unpaid fines;

(b)2 November  2010:     90  hours’ community  work  for  $1,883.34  of unpaid fines;

(c)       4 March 2008:    240 hours’ community work for $3,222 of unpaid fines; and

(d)      16 March 2004:  250 hours’ community work for $16,668.50 of fines.

[6]      Judge Smith’s decision comprised two paragraphs:

[1]      Maybe you will not incur any more fines so you will think because if

I do I will get community work.

[2]       Mr Austin, I am satisfied that you are unable or willing [sic] to repay the fines portion.  Accordingly, I remit all of your fines but not the reparation and the order for reparation repayment remains.  In lieu of that remission of all fines I sentence you to 250 hours of community work which is to be cumulative should you have any community work outstanding.

[7]      The transcribed legal discussion amplifies on this.  It shows that counsel for Mr Austin accepted that community work was  a likely outcome and  that while Mr Austin was reluctant to accept that sentence, he did not want to find himself “on the next bus out to Paparua”.

[8]      Counsel for Mr Austin expressed the difficulty he was facing with his benefit payments and that was the reason he was yet again before the Court.

[9]      Judge Smith considered Mr Austin, either unable, or unwilling to pay, and the situation was one of his own making.  The Judge considered 300 hours’ community work  was  an  “awful  lot”  and,  in  the  end,  sentenced  Mr Austin  to  250  hours’ community work.

The legal basis of the appeal

[10]     The power to  impose a sentence of community work in  lieu of fines  is provided for in s 88A(3) of the Summary Proceedings Act 1957, and s 106E of that Act relevantly provides that a District Court Judge may sentence a defendant to community work for non-payment of one or more fines provided:

(a)      an assessment of the defendant’s financial capacity has been recently completed;

(b)      the Judge has considered that assessment; and

(c)      the Judge is satisfied that all other methods of enforcing the fine or fines have been considered or tried and that they are inappropriate or have been unsuccessful.

[11]     Section  89  of  the  Summary  Proceedings  Act  confirms  that  any  person sentenced by a District Court Judge to community work under s 88AE has a right of appeal under s 244 of the Criminal Procedure Act 2011, as if the defendant had been convicted of an offence.  Section 250 of that Act governs appeals against sentence from the District Court to the High Court.

[12]     Mr Austin appeals this case on the basis that Judge Smith made an error of principle in adopting a starting point of 300 hours’ community work and as a result the end sentence was manifestly excessive.   While s 250 makes no reference to manifestly excessive sentence, this concept is of course well ingrained in the Court’s

consideration of appeals against sentence.1

[13]     An appeal must be allowed if I am satisfied that Judge Smith made an error in opposing the sentence she did and that a different sentence should be substituted. However, the substituted sentence must be more than a minor adjustment to the existing sentence.2

Did the District Court Judge make an appealable error?

Compliance with s 106E

[14]     As was raised today, by Ms Jamieson, it is not clear from Her Honour’s sentencing   notes,   whether   or   not   the   requirements   of   s   106E   of   the Summary Proceedings Act were complied with.

[15]     Mr Austin does not raise this issue, though I consider it must be dealt with. The Judge had in front of her a Registrar’s report dated 6 August 2014 pursuant to s 88 of the Summary Proceedings Act which detailed the amount outstanding, the payments  made  by  Mr Austin  and  the  frequency  with  which  those  payments occurred, a previous appearance in front of Judge Somerville, his latest incurrence of fines and that he had one vehicle registered to his name. Attached to that report was a summary of fines, schedule of unpaid fines and a payment transaction list.

[16]     I am satisfied that these documents would have given the Judge a more than adequate assessment of Mr Austin’s financial capacity.  The legal discussion before the Judge included reference to the difficulties that Mr Austin was facing with his benefit, that it had been suspended and that any money he was receiving was going towards payment of reparation.

[17]     Judge Smith was well aware that the matter was ongoing.  While there was no explicit reference to the Registrar’s report, it was available to her and she did conclude that Mr Austin was in a position where he was unable or unwilling to pay, so I do not consider that the Judge erred in this respect.

Was the starting point too high?

[18]     The key question on appeal is whether Judge Smith adopted a starting point that  was  not  available  to  her.    I  am  not  satisfied  that  she  actually  considered

300 hours was indeed the starting point.   She considered this level of community work was an available response, instead she concluded that 250 hours was proportionate to the amount owed by Mr Austin and his excuse for not paying them.

[19]     This response, I do not consider can be questioned on appeal.  The domain of appellate Courts is whether the end sentence was available and within range, rather than the method by which that sentence was released.

[20]     In assessing this ground of appeal, I also note Randerson J’s comments in Davis v Registrar of Collections Unit at Dunedin, regarding relationship between the sum of fines owing and the amount of community work substituted: 3

No guidance is given in the legislation as to the relationship between the amount of the fines remitted and the number of hours of community work imposed.  Plainly, the discretion to be exercised under s 88 is intended to be broad, taking into account all relevant circumstances.    Relevant considerations would include the amount of the fines, the crimes for which they were imposed, the length of time over which they were accumulated, the reasons for non-payment, the extent to which the offender has paid or has attempted to pay, the financial and other circumstances of the offender and the likelihood or otherwise of the balance of fines being paid (where remission of part of the fines is to be considered).

[21]     In any event, comparable cases suggest that a 300 hour starting point and a

250 hour end sentence was well within the available range.  I note, for example, that in:

(a)       Robinson  v Ministry of  Justice,  Collections, 40 hours’ community work was upheld on appeal in respect of $1,115 in unpaid fines; 4

(b)Gerrard  v Ministry of  Justice,  Collections,  100  hours’ community work was upheld on appeal as a substitute for $2,730 in unpaid fines; 5

3      Davis v Registrar of Collections Unit at Dunedin HC Christchurch CRI-2005-412-13,

3 May 2005.

4      Robinson v Ministry of Justice, Collections [2013] NZHC 3148.

5      Gerrard v Ministry of Justice, Collections HC Hamilton CRI-2009-419-77, 9 December 2010.

(c)      of more relevance, in Slattery Cookson v Christchurch Collections Unit, which was in fact a decision involving Mr Austin, 240 hours’ community work in lieu of $3,222 in unpaid fines was upheld by the Court of Appeal as a “stern, but not excessive” substitution of community work; 6 and

(d)      Davis  v  Registrar  of  Collections  Unit  at  Dunedin,  300  hours’

community  work  was  substituted  on  appeal  for  400 hours  when

$4,000 of fines was remitted. 7

[22]     I am satisfied these cases demonstrate that an end sentence of 250 hours’ community work is a proportionately available sentence for about $7,500 in unpaid fines.

Failure to take into account obligation to pay reparation

[23]     The second question on appeal is whether Judge Smith failed to take into account Mr Austin’s longstanding commitment to pay off his reparation.  That matter was not pressed today, however, in any event, I am satisfied the Judge was aware of the amount of outstanding reparation but the issue before her solely related to the fines portion of the debt.

[24]     There is, therefore, in my view, no error in focusing solely on the fines portion and leaving aside the reparation.

[25]     So, in conclusion, I am satisfied Judge Smith made no errors in substituting a sentence of 250 hours community work for Mr Austin’s unpaid fines and the appeal is dismissed.

Solicitors:

Thompson and Morgan, Christchurch

Raymond Donnelly & Co., Christchurch

6      Slattery-Cookson v Christchurch Collections Unit HC, Christchurch CRI-2008-409-71,

6 June 2008.

7      Davis v Registrar of Collections Unit at Dunedin, above n 1.