Austin v The Queen
[2011] NZCA 427
•30 August 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA734/2010 CA735/2010 CA736/2010 [2011] NZCA 427 |
| BETWEEN MICHAEL JOHN AUSTIN |
| AND THE QUEEN |
| Hearing: 25 August 2011 |
| Court: O'Regan P, Ronald Young and Venning JJ |
| Counsel: R A Peters for Applicant |
| Judgment: 30 August 2011 at 2.30 pm |
JUDGMENT OF THE COURT
The application for extension of time to appeal is refused.
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REASONS OF THE COURT
(Given by Ronald Young J)
In April 1996, March 1998 and April 2003 the applicant was convicted of various frauds.[1] He was sentenced on each to pay reparation. The reparation totalled almost $100,000. In addition, in 1996 he received a suspended prison sentence of 14 months and a sentence of nine months period detention;[2] in 1998, two years’ imprisonment;[3] and in 2003, two years’ imprisonment with leave to apply for home detention.[4] The 1996 reparation was ordered to be paid at $350 a week; no periodic payment order was made with regard to the 1998 reparation and the 2003 reparation was ordered to be paid at $50 per week to each of the four complainants. About $15,000 has been paid by the applicant since. The total now owing is uncertain but estimated to be somewhere between $67,000 and $85,000. The applicant now seeks an order for extension of time to file these appeals. The proposed appeals are years out of time.
[1] The applicant is also known as Michael John Slatterly-Cookson.
[2] R v Austin DC Christchurch T179/95, 3 April 1996.
[3]R v Austin DC Christchurch T4/98, 31 March 1998. Note that the Judge replaced the suspended sentence from 1996 with one of six months, which was cumulative on the 1998 sentence.
[4] R v Austin DC Christchurch T014510, 11 April 2003.
The thrust of the application is twofold. Firstly, it is claimed that the original reparation orders were “plainly excessive” and not capable of compliance. Secondly, the applicant says it is now clear he cannot pay the reparation. However, the applicant says that he believed that he could pay the reparation in each case but has now been overwhelmed by the orders.
This Court in R v Knight identified the interests of justice as the pivotal question in whether to extend time for an appeal to be filed.[5] In particular, this Court said the relevant considerations are:[6]
... the strength of the proposed appeal and the practical utility of the remedy sought, the length of delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.
[5] R v Knight [1998] 1 NZLR 583.
[6] At 589.
We are not prepared to extend time for the filing of this appeal for a number of reasons.
The applicant has not identified why there has been such a significant delay in filing these appeals. The applicant has not provided any relevant detail regarding his financial position when the reparation orders were made to establish they were wrongly made.
As the Crown noted, in April 1996, Judge Green took into account the fact that the applicant said he could pay substantial reparation in deciding to suspend a sentence of imprisonment.
Further, in 1998 the applicant’s outstanding fines were remitted to enable him to pay as much reparation as possible. And then, at his 2003 sentencing the Judge’s decision to allow the applicant leave to apply for home detention was also influenced by the applicant’s inability to pay reparation if he was to be imprisoned. On each sentencing the applicant agreed to the reparation order. On each occasion he was either in employment, self employed or he told the Court he expected to shortly obtain employment. It is clear, therefore, that the applicant has had a number of advantages to encourage him to pay reparation.
The applicant has not identified any error by the sentencing Judges in ordering reparation. They were orders agreed to by the applicant where he was confident he could meet the payments. The fact he is now unable to do so is not a basis to extend time to file these appeals.
We note the applicant has previously had his attention drawn to s 145(2) of the Sentencing Act 2002. In 2008, when considering the applicant’s appeal against a sentence for non‑payment of fines, Panckhurst J pointed out that there was a process in s 145 for remission of reparation and substitution of an alternative sentence in the appropriate circumstances.[7] No such application has been made by the applicant.
[7]Slattery‑Cookson v Christchurch Collections Unit at District Court HC Christchurch CRI‑2008‑409‑71, 6 June 2008.
We are satisfied it is not in the interests of justice to extend time for filing these appeals. The appropriate course now, in our view, is for Mr Austin to make an application in the District Court for an alternative sentence pursuant to s 145 if it is the case that he can no longer pay the reparation ordered.
Result
For the reasons given, the application for leave to extend time to appeal is refused.
Solicitors:
Thompson & Morgan, Christchurch for Appellant
Crown Law Office, Wellington for Respondent
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