Hawker v Ministry of Justice Collections HC Hamilton CRI-2011-419-33

[2011] NZHC 1309

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-419-33

BETWEEN  GARRY HAWKER Appellant

ANDMINISTRY OF JUSTICE COLLECTIONS Respondent

Hearing:         7 July 2011

Appearances: G Walsh for the Appellant

J Tarrant for the Respondent

Judgment:      7 July 2011

ORALJUDGMENT OF PRIESTLEY J (Appeal against sentence)

Counsel/Solicitors:

G Walsh, Barrister, Hamilton. Email: [email protected]

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

HAWKER V MINISTRY OF JUSTICE COLLECTIONS HC HAM CRI-2011-419-33 7 July 2011

[1]      This appeal requires consideration of the discretion conferred by s 90 of the

Summary Proceedings Act 1957.

[2]      At the relevant time the appellant had accumulated 53 unpaid fines.   The fines sum totalled $12,069.79.   The fines had been imposed over a period of six years and 10 months.

[3]      The report to the Hamilton District Court in March 2011 from the Deputy Registrar of the Fines/Collections Unit suggests that other fines had been incurred. Some $4,876 had been paid off fines during the same period.

[4]      The report refers to a total of 23 arrangements which have been made to try to assist the appellant in paying fines.  Some 19 of those had been by the attachment order  mechanism.     No  voluntary  payments,  however,  have  been  made  since December 2006.

[5]      The offences which had led to the fines being imposed were in the main driving offences.  Twenty-two of those related to failure to display a current warrant of fitness.  Another 11 related to breaches of registration requirements.  Alarmingly, however, there were 10 speeding fines and another four relating to intersection or road sign breaches.  There was also a careless use fine.  There were three non-traffic fines which it is unnecessary for me to mention.

[6]      The application for remission under s 88B appears to have been triggered by the imprisonment of the appellant for a period of 22 months under the Misuse of Drugs Act 1975.  In due course the application, doubtless in a busy court, was called before Judge Tompkins on 28 March 2011.  The Judge’s sentencing notes are short. He refers to the quantity of fines, the long history of non-payment and repetitive defaults.  He imposed a period of four months imprisonment under s 90, such period to be cumulative to the term of imprisonment the appellant was already serving.

[7]      This appeal challenges that term of imprisonment on various grounds.  The main ground, as Mr Walsh candidly accepts, is that, by adding four months to the current term the appellant was serving, the Judge had insufficient regard to the

totality principle enshrined in s 85 of the Sentencing Act 2002.   By that route, submits counsel, the total term of imprisonment which the appellant must serve, 26 months, is manifestly excessive.

[8]      It is unnecessary for me to traverse the substantive law or indeed to set out in full counsel’s focused submissions.   Since the Court of Appeal judgment of R v Wright[1] it is very clear that in respect of sentences to which s 90(b) applies, the Court has jurisdiction to impose cumulative sentences which take the term of imprisonment above three months.

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

[9]      Ms Tarrant, in her submissions, has referred to the decision of Randerson J in Davis v Registrar of the Collections Unit at Dunedin.[2]     His Honour stressed the importance of having regard to a number of relevant considerations when exercising the s 90 discretion.  These include the total sum of the fines, the length of time over which they have accumulated, non-payment and personal issues, and of course the offences for which they were imposed.

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

[10]     As  one  might  expect  from  an  experienced  District  Court  Judge,  Judge Tompkins has touched on, albeit briefly, what seem to be the most salient factors which lay behind his sentencing.

[11]     What must be of concern in this particular case is the repetitive history of the appellant’s offending so far as driving a motor vehicle is concerned.  He is, so the court file states. aged 48 (he was just short of his 48th birthday when the matter was before the District Court).   He has an extensive criminal history which includes a number of more serious offences under the relevant legislation which imperil road safety, such as driving with excess blood alcohol and dangerous driving.  It is very

clear from the miscellany of infringement notices which he has accumulated over the past six years and 10 months that the appellant has very limited regard to the road rules.  His speeding offences relate to breach of speed restrictions of every known type in New Zealand.  He has also breached road signs and driven carelessly.  His

offending, in my judgment is much more serious than say the hypothetical young

man who just fails to drive within the terms of his driving licence and/or obtain a warrant of fitness for his motor vehicle.

[12]     The outstanding sum of fines, their duration, and the sheer scope so far as the driving offences are concerned in my judgment make the four month term imposed by the  Judge  well  within  range.    In  fairness  to  Mr  Walsh  he  did  not  contend otherwise.

[13]     Returning to the totality principle it is abundantly clear, given the policy which Parliament has stipulated in Part 3 of the Summary Offences Act and also under s 83 of the Sentencing Act that a cumulative sentence is inevitable in these circumstances.   The sole remaining issue is whether the increase of an existing Misuse of Drugs Act sentence of 22 months to 26 months offends against the totality principle.

[14]     Although I can understand that, for a variety of reasons, the appellant would have preferred to keep his finite sentence to one of under two years, given the scope and purpose of the s 90 discretion I do not consider for one moment that totality has been infringed here.   Indeed my own view, for what it is worth, is that the four months sentence imposed by Judge Tompkins was, if anything, lenient given the appellant’s driving history.

[15]     For these reasons therefore the appeal is dismissed.

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Priestley J