Duncan v Ministry of Justice HC Napier CRI 2010-441-000006

[2011] NZHC 184

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2010-441-000006

ROBERT JOSEPH DUNCAN

Appellant

v

MINISTRY OF JUSTICE

Respondent

Hearing:         7 March 2011

Appearances: P J Jensen for Appellant

R J Collins for Respondent

Judgment:      7 March 2011

Reasons:        8 March 2011

REASONS FOR JUDGMENT OF LANG J [Appeal against sentence]

Counsel:             P J Jensen, Station Street Chambers, 94 Station Street, Napier 4110

Solicitors:           Elvidge & Partners, PO Box 609, Napier

DUNCAN V MINISTRY OF JUSTICE HC NAP CRI 2010-441-000006 7 March 2011

[1]      Mr  Duncan  pleaded  guilty  on  arraignment  in  the  District  Court  to  four indictably laid charges of cultivation of cannabis, producing cannabis oil, and possession of ammunition.   He also pleaded guilty to summarily laid charges of possession of Class C controlled drugs, possession of Class C controlled drugs, and dangerous driving.

[2]      On 7 September 2010 his Honour Judge Adeane sentenced Mr Duncan to two years imprisonment on those charges.  At the same time he made an order remitting outstanding fines and enforcement fees totalling $7,775.  In their place he imposed a cumulative sentence of one month’s imprisonment.

[3]      Mr  Duncan  does  not  challenge  the  sentences  that  the  Judge  imposed  in relation to the criminal charges to which he pleaded guilty.  He appeals, however, against the order remitting the fines and the cumulative sentence of one month’s imprisonment that the Judge imposed when he made that order.

[4]      Section 106E(2)(a) of the Summary Proceedings Act 1957 prohibits a Judge of the District Court from issuing a warrant of commitment for the imprisonment of a  defendant  for  non  payment  of  a  fine  unless  the  defendant  has  completed  a statement of means within the immediately preceding 14 days.  It is common ground in the present case that the Judge did not obtain a statement of means in respect of Mr Duncan before he sentenced him to imprisonment for non payment of his fines. Mr Duncan maintains that he is in a position to pay the fines and he wants the fines to be reinstated for that purpose.

[5]      The Crown agrees with counsel for Mr Duncan that, in the absence of a statement of means completed within the immediately preceding 14 days, the Judge had no power to issue the warrant of commitment in respect of the outstanding fines. For that reason the sentence must be quashed and the fines remitted.

[6]      I made orders accordingly at the conclusion of the hearing on 7 March 2011.

Lang  J