Gourlay v Ministry of Justice Collections HC Hamilton CRI-2011-419-32

[2011] NZHC 1871

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-419-32

BETWEEN  ZANE DAVID GOURLAY Appellant

ANDMINISTRY OF JUSTICE COLLECTIONS Respondent

Hearing:         7 July 2011

Appearances: L Caley for the Appellant

J Tarrant for the Respondent

Judgment:      7 July 2011

ORALJUDGMENT OF PRIESTLEY J (Appeal against sentence)

Counsel/Solicitors:

L Caley Barrister, Hamilton. Email: [email protected]

J Tarrant, Crown Solicitors, Hamilton. Email: [email protected]

GOURLAY V MINISTRY OF JUSTICE COLLECTIONS HC HAM CRI-2011-419-32 7 July 2011

[1]      The appellant is a serving prisoner.   He had been sentenced by a District Court to  two  cumulative terms  of imprisonment  totalling 18  months.   The two convictions incurred were relating to assaults with intent to injure or injuring.

[2]      To his credit the appellant, once imprisoned, took some steps to address the issue of unpaid fines.  As a result of actions then taken by the Collections section of the  Ministry  of  Justice  the  appellant  appeared  before  Judge  Cocurollo  in  the Hamilton District Court on 7 April 2011.

[3]      The Judge’s sentencing notes in their entirety read:

[1]       Your fines of $12,345 are remitted.

[2]       In lieu, you are now sentenced to eight months’ imprisonment.  That

is cumulative on your current sentence.

[3]       You have standard release conditions six months after the sentence expiry date.

[4]      As both counsel accept, it is, with respect, not possible to discern the basis on which the Judge imposed the eight month imprisonment term.

[5]      In imposing that term Judge Cocurollo was exercising a statutory power conferred on him by s 90 of the Summary Proceedings Act 1957. That section states:

90       Scale of imprisonment for non-payment of fine

The period of imprisonment imposed under this Act in respect of the non- payment of any fine or where the sale of any property under any process does not produce sufficient proceeds to pay the fine, shall be such period as in the opinion of the Court or District Court Judge fixing the period will satisfy the justice of the case, not exceeding,—

(a)       In the case of an offence that was punishable by imprisonment, the maximum term of imprisonment to which the defendant was liable on the conviction, or a period of 1 year, whichever is the lesser:

(b)       In any other case, a period of 3 months.

[6]      Although the section’s heading refers to a “scale” of imprisonment for non- payment  of  fines,  no  real  scale  is  prescribed.    The  section  only  sets  out  a jurisdictional divide, and instead confers the broad “justice of the case” discretion to which I have referred.   The relevant fines in this case were those under subs (b)

being fines imposed for driving offences where there was either no period of imprisonment or a period of imprisonment of less than one year.

[7]      Counsel have referred me to some helpful authorities.  The lead case, dealing solely with whether s 90, permits cumulative terms, is the Court of Appeal judgment R v Wright.[1]    That judgment makes it clear that s 90 permits cumulative terms in respect of each fine.

[1] R v Wright CA45/06, 6 July 2006.

[8]      The total amount of fines in play in Wright slightly exceeded $95,000.  The High Court decision to impose 12 months imprisonment (reached cumulatively in lieu of the fines) was upheld.

[9]      It would be an error to use the $95,000 figure in Wright as some form of benchmark whereby the s 90 power can be exercised in respect of fines totalling a lesser sum in some proportionate or pro rata way.

[10]     I note the recent and helpful judgment of French J in Robertson v Registrar of Collections at Invercargill.[2]     Her Honour correctly points out that the resulting prison term flows from the exercise of a discretion rather than from some mathematical formula.

[2] Robertson v Registrar of Collections at Invercargill (High Court Invercargill CRI-2010-425-48, 7 February 2011).

[11]     The  approach  articulated  by  Randerson  J  in  Davis  v  Registrar  of  the Collections  Unit  at  Dunedin[3]   is  appropriate.    The  discretion  must  be  exercised having regard to a number of relevant considerations which include the total sum; the offences for which they were imposed; the length of time over which the fines have accumulated; the personal financial circumstances of the offender; and (if relevant) the reason for non-payment.

[3] Davis v Registrar of the Collections Unit at Dunedin (High Court Christchurch CRI-2005-412-13, 13 May 2005).

[12]     It also seems to me that when imposing a fine, although s 106E(7) recognises that a term of imprisonment imposed on somebody already undergoing a sentence of

imprisonment is a special circumstance, nonetheless relevant Sentencing Act 2000

policies should be borne in mind.  These must obviously include the s 7(1) purposes of denunciation and deterrence (non-payment); the promotion in an offender of a sense of responsibility; and the relevant s 8 principles which should include the least restrictive outcome and rehabilitative prospects.

[13]     Arguably too totality issues under s 85 should be considered, although the standard practice of imposing a cumulative sentence probably gives limited range for totality  given  the  clear  Parliamentary policy  set  out  in  part  3  of  the  Summary Proceedings Act.

[14]     So where does all this lead so far as the appellant is concerned?  Mr Caley, with helpful submissions, says that the eight month sentence is manifestly excessive and that, at most, a sentence of two months imprisonment should be imposed.  Mr Caley points out that in an ideal world District Courts endeavour to deal with the whole  issue  of  unpaid  fines  with  community  based  sentences.     I  note,  from discussion with Mr Caley and an example he gave, that District Courts in some parts of New Zealand, particularly when dealing with young men who are persistently driving outside the terms of their licences, or are failing to register or warrant their vehicles, defer sentencing for a couple of months so that these persistent failures can be rectified.  Such a s 90 sentencing approach, designed to break a repetitive cycle, is to be applauded.

[15]     Counsel  points  to  the  mitigating  factor  of  the  appellant  himself  having triggered Part 3 of the Summary Proceedings Act.  Mr Caley correctly points out that the bulk of the unpaid fines relate to breaches of the relevant driving licence held by the appellant.   He submits that it would be extremely helpful if, on release, the appellant was obliged to undergo some form of defensive driving course and was made to obtain a restricted licence.

[16]     Ms Tarrant, for her part, submitted (with some diffidence) that it should be inferred that Judge Cocurollo had the relevant principles in his mind despite the somewhat sphinx-like nature of his judgment.   In her submission, however, eight months sat at the top of the range and anything below four months imprisonment would be manifestly inadequate.

[17]     I now turn to the circumstances of the appellant, and in particular the matters for which the fines were imposed.  The District Court had before it a very full report provided by the Deputy Registrar of the fines/collections unit.  There were 45 fines imposed in all.  The total sum involved was $12,345.  The period of non-payment across the range of fines was three years and 11 months.

[18]     I have done my own analysis.  Four unpaid fines stem from 2006; 16 from

2007; three from 2008; 13 from 2009; and 9 from 2010.

[19]     The bulk of these relate to driving licence infringements; 17 in breach of graduated licence conditions; one for driving contrary to licence conditions; seven for failure to produce a driving licence.  There are two categories of typical motor vehicle non-compliance fines, being seven for having no current warrant of fitness and seven for having an unregistered motor vehicle.

[20]     As  Mr  Caley  accepts,  this  range  of  offending  by a  20  year  old  man  is unfortunately typical.   Despite the imposition of fines the appellant continued to drive on a learner’s licence only; breached the conditions of learner licences which are imposed for safety and control reasons; obviously took no steps to rectify the position;  and  thus  over  a  period  of  almost  four  years  continued  to  attract infringement notices.  Regrettably the appellant made no attempt to pay off any of the fines in question other than a paltry $11 payment in December 2009.

[21]     I am told that there were other fines imposed which have disappeared off the record which, of his own volition or with assistance from family members, the appellant has paid.  It was not of course for those paid fines that he was imprisoned.

[22]     So, relevant factors in exercising the discretion seem to me to be first that all the fines  are  motor vehicle  related  and  that  the bulk  of  those  relate  to  licence conditions.  Secondly is the appellant’s youth.  I agree with counsel there is some need  to  promote  the  appellant’s  rehabilitation  and  to  give  him  some  credit  for himself initiating steps to take the burden of unpaid fines away from him.

[23]     In the absence of any reasons given by the Judge I am unable to discern the manner in which he has exercised his discretion.  Thus, in accordance with normal appellate principles I intend to re-exercise it.  I consider that fines can be properly grouped into two categories.  In the first category fall 27 fines relating to breach of licence conditions or failure to produce a licence at all.   The other fines are all related to mandatory obligations imposed on the owner of the motor vehicle.  There is one speeding fine.  I note from the police criminal history the appeallant has been convicted of dangerous driving, it being clear that this was incurred in a boy-racer type of situation.  I am not dealing with any relevant fine here, however.

[24]     In my judgment the driver licence related fines, given their volume and the fact  that  they  extend  over  just  under  four  years,  should  be  dealt  with  by  the imposition of a term of three months imprisonment.  The other fines are also motor vehicle related.   Doubtless the offending was prompted by the somewhat cavalier approach which the appellant seems to have displayed towards his obligation as the driver of a motor vehicle.  I consider those fines, in the circumstances, should best be met by the imposition of a one month term of imprisonment, cumulative, of course, on the three months.

[25]     Thus in exercising the discretionary power, I would have reached a total term of imprisonment of four months.  This is one half of the eight month term imposed by the Judge.  I am satisfied that for appellate purposes, and having regard to well known principles relating to manifestly excessive sentences, the sentence of eight months imprisonment imposed on the appellant in April 2011 is manifestly excessive by four months.

[26]     Accordingly the appeal is allowed.  The eight month term of imprisonment is quashed.   A four month term of imprisonment, cumulative on the appellant’s current sentence, is imposed.  That four months comprises two cumulative sentences of three months and one month respectively.

[27]     The  imposition  by Judge  Cocurollo  on  the  appellant  of  standard  release conditions  remains  afoot.    I make  a  strong  recommendation  to  the  Corrections Department that, on release, a regime be put in place to ensure first the appellant

obtains at least a restricted licence and secondly that he attends a defensive driving course.    The exact  mechanisms  whereby the Probation  Service implements  that recommendation I leave to them.   Were I satisfied that I had statutory power to impose such conditions (counsel being unsure on that issue) I would unhesitatingly have imposed them.

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Priestley J