La Rue v Ministry of Justice Collections Unit
[2016] NZHC 666
•13 April 2016
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2016-443-00009 [2016] NZHC 666
BETWEEN TROY WILLIAM HENRY LA RUE
Appellant
AND
MINISTRY OF JUSTICE COLLECTIONS UNIT Respondent
Hearing: 7 April 2016 Counsel:
M S Boyd for appellant
J E Bourke for respondentJudgment:
13 April 2016
RESERVED JUDGMENT OF DOBSON J
[1] Between July 2014 and July 2015, Mr La Rue incurred fines of $6,244. They were imposed for driving and motor vehicle related offences. Mr La Rue was summonsed to appear under s 88 of the Summary Proceedings Act 1957 for non-payment of those fines in the New Plymouth District Court on 21 January 2016.
[2] The outcome was that Judge Roberts remitted the unpaid fines and imposed instead a sentence of 300 hours’ community work. Mr La Rue has exercised his right of appeal under s 89 of the Summary Proceedings Act against the number of hours of community work imposed.
[3] The appeal relies principally on the manner in which the matter was dealt with by the Judge. When it was called, the Judge had had his attention drawn to a Facebook posting by Mr La Rue that made derogatory remarks about him, in the
context of his pending retirement.
LA RUE v MINISTRY OF JUSTICE COLLECTIONS UNIT [2016] NZHC 666 [13 April 2016]
[4] The Judge insisted that Mr La Rue read out the whole of the relevant Facebook posting, which is reproduced in the notes on sentencing, together with relevant exchanges that followed, in the following terms:
DEFENDANT:
“LOL I hope the fuckers gone by Friday. Ha ha. Fucker, nah fuckin cunt whose old face and saggy chin. Fuck off.”
THE COURT:
Who were you talking about?
DEFENDANT:
Well I’m talking to mate aren’t I?
THE COURT:
No, no. Who are you talking about?
DEFENDANT:
Well, I’m guessing in respect to this post.
THE COURT:
Who are you talking about when you talk about, “The fucking old cunt with the saggy old chin.”
DEFENDANT:
Well, I guess I’m talking about you Sir.
THE COURT: Thank you. DEFENDANT:
And I, I don’t really know what to say about that but I do apologise.
THE COURT:
No, no you don’t have to say anything, that’s what you thought.
DEFENDANT:
Yep.
THE COURT:
For your own benefit, Mr La Rue, I don’t read that drivel. That was drawn
to my attention by my registrar. You’re a brave soul though aren’t you?
DEFENDANT:
Well, all I can say is you got me on that one.
THE COURT:
I got you cold mate.
DEFENDANT:
You did and I apologise for it.
THE COURT:
Now you’re hardly a picture yourself are you?
DEFENDANT:
Oh, no.
THE COURT:
No. You don’t work do you?
DEFENDANT:
No I don’t.
THE COURT:
Right. You’re otherwise indolent aren’t you? Bone idle. Get it back off him.
[1]
Outstanding fines $6244 remitted.
[2] Substitution 300 hours’ community work.
THE COURT:
Work off your laughter in the cells while we get the order typed.
…
THE COURT:
Damage done Mr La Rue. Don’t give a toss.
[5] However amusing these exchanges may have been for an interested bystander, it is an inappropriate way to deal with a matter of unpaid fines. Predictably, counsel argued on the appeal that the Judge set the number of hours community work, taking into account the irrelevant consideration of Mr La Rue’s derogatory comments about him.
[6] Counsel have searched the Court file and noted that the Registrar’s report to the Judge had endorsed “250?” in the Judge’s handwriting. On the printed form on which the Judge records the outcome, the Judge had initially recorded “275” and then crossed it out, replacing it with “300” as the number of hours of community work that were imposed as the substitute sentence. Ms Boyd submitted that the increases in the number of hours evidenced a provisional view of the Judge that 250 hours might be appropriate, then a decision that 275 hours were appropriate, but substitution of that with 300 hours having occurred whilst the Judge was dealing with the matter.
[7] There may be other explanations for this sequence of the number of hours’ community work to be imposed, but counsel’s reconstruction is at least a reasonable possibility. It therefore adds weight to the criticism that the Judge was diverted from a relevant analysis of the appropriate substitute sentence by Mr La Rue’s Facebook criticism of him. That concern is more than sufficient to justify revisiting what the appropriate sentence should be.
[8] The options in this situation include remitting the matter back to the District Court for re-sentencing. The attraction of that outcome is that it would place reconsideration of the appropriate number of hours in the forum where these matters are routinely determined. However, I consider it would be undesirable to protract this matter and, after discussion with counsel, resolved to effect the re-sentencing as best I could.
[9] The task was described by Justice Randerson in the following terms:1
[9] … No guidance is given in the legislation as to the relationship between the amount of the fines remitted and the number of hours of community work imposed. Plainly, the discretion to be exercised under s 88 is intended to be broad, taking into account all relevant circumstances. 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).
1 Davis v Registrar of Collections Unit at Dunedin HC Christchurch CRI-2005-412-13, 3 May
2005.
[10] More recent are the observations of Justice Andrews in Brand v Registrar of
Collections at New Plymouth:2
[16] … the discretion as to what length of sentence to impose, are not matters for the application of a mathematical formula, for that would have the effect of fettering the Judge’s discretion. The Judge’s discretion must be exercised by deciding what satisfies the justice of the case, after taking the relevant considerations into account.
[11] The lack of consistent relativity between the fines remitted and the number of hours’ community work is illustrated by two further decisions cited on behalf of the respondent:
· Tocker v Ministry of Justice Collections: $10,753.52 of fines substituted with 60 hours of community work, upheld on appeal;3
· Ross v Ministry of Justice: $30,000 of fines substituted with 400 hours of community work, and that considered not manifestly excessive on appeal.4
[12] Ms Boyd suggested, from anecdotal experience in the Wellington District Court, a rule of thumb of $10 fines remitted for an hour of community work if the circumstances of non-payment and the default were within usual bounds. She also submitted that 125 hours would be adequate in the present case. I agree with Andrews J that to apply any rule of thumb of that type fetters the discretion that ought to be applied in light of the considerations such as those that Randerson J cited in Davis.
[13] Here, the report in respect of Mr La Rue stated that he was a recipient of a benefit, that a means assessment showed he had no disposal income to go towards his fines, and that he had made no payments since his last community work sentence for fines in May 2014. Given the overbearing way in which the matter was dealt with in the District Court, I consider some leniency in the extent of community work
required is justified.
2 Brand v Registrar of Collections at New Plymouth HC New Plymouth CRI-2008-443-25,
10 November 2008.
3 Tocker v Ministry of Justice Collections HC Wellington CRI-2010-435-4, 18 May 2010.
4 Ross v Ministry of Justice HC Hamilton CRI-2010-419-000019, 9 June 2010.
[14] I accordingly quash the sentence of 300 hours’ community work and substitute it with a sentence of 200 hours’ community work. This is on the basis that the outstanding fines of $6,244 are remitted.
Dobson J
Solicitors:
Hannam & Co, New Plymouth for appellant
Crown Solicitor, New Plymouth for respondent
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