Cole v Registrar of Collections Unit Dunedin

[2022] NZHC 979

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2022-412-07

[2022] NZHC 979

BETWEEN

JACOB TAFIA WARREN WAYNI COLE

Appellant

AND

REGISTRAR OF COLLECTIONS UNIT DUNEDIN

Respondent

Hearing:	9 May 2022
Appearances:	S M Turner for Appellant R P Bates for Respondent
Judgment:	9 May 2022

JUDGMENT OF MANDER J

[1]                 Mr Jacob Cole was convicted and sentenced by Judge Rollo in the Dunedin District Court to six months’ supervision, 65 hours’ community work and ordered to pay $3,562 in reparation on a charge of accessing a computer system for a dishonest purpose.1 Mr Cole had $5,250.20 in outstanding fines and a request was made to have those fines remitted and substituted with community work. As a result, 300 hours’ additional community work was imposed. Mr Cole appeals that order on the basis the amount of community work is manifestly excessive.2

[2]                 Details of the outstanding fines were set out in a registrar’s report. They largely relate to infringement fees accumulated since 2015 for breaches of motor vehicle and traffic rules.3 It was noted Mr Cole had paid $25,028.20 in fines over the last 11 years.

1      Crimes Act 1961, s 249(1)(a) – maximum penalty of seven years’ imprisonment.

2      Summary Proceedings Act 1957, s 89(2) and Criminal Procedure Act 2011, s 244.

3      The infringement offences included no warrant of fitness (x5), parked on a footpath (x1), exceeded 50 kph (x5), displayed an expired parking receipt (x4), parked over the time limit (x3), operate

COLE v REGISTRAR OF COLLECTIONS UNIT DUNEDIN [2022] NZHC 979 [9 May 2022]

The Judge calculated the imposition of 300 hours’ community work for $5,250.20 in fines amounted to approximately $17.50 an hour (net of tax) in Mr Cole’s time.

The appeal

[3]                 On behalf of Mr Cole, Mr Turner submitted the amount of community work was manifestly excessive and breached a number of sentencing principles, namely the need to impose the least restrictive sentence as required by s 106E(4) of the Summary Proceedings Act, and the totality principle.4 It was said to have also been imposed without regard to the hierarchy of sentences.5 Reference was made to a decision of this Court in which Randerson J identified relevant considerations that were to be taken into account in exercising the Court’s discretion to remit fines:6

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).

[4]                 Mr Turner emphasised the outstanding fines related to infringement fees, rather than substantive criminal offending, and were being serviced by way of an attachment order on Mr Cole’s benefit. Mr Cole has limited financial means. He is currently unemployed and has limited assets. It was noted he has shared custody of his daughter who he must support. Mr Turner argued the purpose for remitting the fines was to provide him with a “clean slate”, in order to allow him to make reparation for his current offending without the burden of the existing fines.

[5]                 In support of his argument that the amount of community work imposed failed to take into account the hierarchy of sentences and the need to impose the least restrictive sentence, Mr Turner emphasised  that  community  work  impinges  on  Mr Cole’s liberty,7 and that insufficient regard had been taken of it being a more

unlicensed vehicle (x5), parked in prohibited area (x3), drive or use vehicle with exemption (x2), operate vehicle without WOF (x1).

4      Sentencing Act 2002, s 85.

5      Section 10A.

6      Davis v Registrar of the Collections Unit at Dunedin HC Christchurch CRI-2005-412-13, 3 May 2005, at [9].

7      Citing May v Department for Courts HC Auckland A26-02, 28 June 2002.

restrictive sentence than the original fines. Mr Turner submitted the combination of 65 hours’ community work for the substantive offence and the 300 hours to remit outstanding fines cumulatively resulted in a sentence that was disproportionately long. Counsel argued the Judge had failed to step back to consider the overall effect of the sentence, given it was only 35 hours short of the maximum amount of community work that can lawfully be imposed.8

Analysis

[6]                 Mr Turner submitted that Mr Cole had made significant efforts to meet his obligations, having over some 11 years paid $25,028.20, which ought to have been taken into account when setting the amount of community work for the remaining balance. However, Mr Power, who appeared  on  behalf  of  the  Registrar,  argued Mr Cole’s fines record may be viewed as an aggravating factor. He noted Mr Cole had amounts that were outstanding from 2015 (over five years ago) and that during the latter period he had regularly failed to comply with various regulatory obligations and to pay the resulting fines. In response, Mr Turner noted that Mr Cole’s accumulation of fines had markedly slowed in recent years, with only one infringement offence in 2020 and one in 2021. He argued this exhibited an increased maturity on Mr Cole’s part which had not been recognised in the remission decision. In that regard, it was emphasised Mr Cole, prior to the offending for which he was for sentence, had not offended since 2010 and that his efforts in that regard were not reflected in the amount of hours of community work imposed.

[7]                 Both counsel referenced the hourly rate calculated by the Judge. Mr Turner submitted the level of community work imposed was inconsistent with the current minimum wage rate of $21.20 per hour and was effectively punishing Mr Cole for being unemployed. This was based on an argument that, had he the advantage of a minimum wage job, clearance of his fines by labour would have occurred in less time than the length of community work imposed. However, Mr Power points out that if tax is added to the apparent hourly rate of $17.50, as calculated by the District Court Judge, a rate approximate to the minimum wage is actually achieved. Mr Power acknowledges that if this rate of $21.20 is applied to the outstanding fines balance it

8      Sentencing Act, s 55(2).

would equate to approximately 250 hours. He suggested that may amount to a fairer amount of community work.

[8]                 A number of cases assist in providing some gauge as to the amount of community work that should be imposed when remitting fines, although, as is apparent from Davis,9 that exercise is a matter of discretion for the sentencing court and no set formula can be adopted. In Hill v Christchurch Collections Unit 250 hours’ community work was imposed for outstanding fines and enforcement fees that totalled

$7,662.18.10  As in this case, the outstanding fines related to matters such as failing to

produce a driver licence, failing to comply with traffic signals, operating an unlicensed motor vehicle and operating a vehicle without a warrant of fitness. This Court found the level of community work imposed to be well within the available range.

[9]                 In Austin v Christchurch Collections Unit, the appellant had been incurring fines and reparation orders for a lengthy period and had been making regular payments. A number of cases were referenced in upholding the 250 hours’ of community work imposed when remitting outstanding fines of $7,521.26:11

(a)Robinson v Ministry of Justice, Collections, 40 hours’ community work was upheld on appeal in respect of $1,115 in unpaid fines;¹²

(b)Gerrard v Ministry of Justice, Collections, 100 hours’ community work was upheld on appeal as a substitute for $2,730 in unpaid fines;¹³

Quoting from the judgment:

(c)of more relevance, in Slattery Cookson v Christchurch Collections Unit, which was in fact a decision that also involved 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;¹⁴ 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.¹⁵

9      Davis v Registrar of the Collections Unit at Dunedin, above n 6.

10     Hill v Christchurch Collections Unit [2015] NZHC 368.

11     Austin v Christchurch Collections Unit [2014] NZHC 2514, [2015] NZAR 101 at [21].

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

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

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

15     Davis v Registrar of Collections Unit at Dunedin, above n 6.

Decision

[10]              The authorities indicate there is a significant range in the amount of community work that can be imposed for the purpose of remitting fines and there is no set scale. This likely reflects that such an exercise involves the exercise of the court’s discretion which, in turn, is likely to be dependent on the particular circumstances of the individual concerned. Here, the value of the outstanding fines was fairly moderate. They were imposed for matters relating to Mr Cole’s legal obligations in relation to his vehicle and the way he operated it, and were accumulated over a number of years. There is a paucity of information about Mr Cole’s financial circumstances. However, he has regularly been paying the outstanding amount of fines by instalment, although that is no doubt the result of a deduction being made from his benefit at source.

[11]              Overall, I am inclined to accept Mr Power’s suggestion that an adjustment should be made that effectively brings the hourly rate up to that of the minimum wage when tax is taken into account ($21.20 per hour). In doing so, I am mindful that the outstanding monies relate to the non-payment of infringement fees, rather than from fines imposed for substantive criminal offending, and that when combined with the sentence of 65 hours’ community work for his current offending, Mr Cole will still have to complete over 300 hours’ community work.

Result

[12]              The appeal is allowed. The fines of $5,250.20 are remitted but the order that Mr Cole serve 300 hours community work is quashed. In its place I make an order that he serve 250 hours community work.

Solicitors:
Crown Solicitor, Dunedin