Moynihan v Registrar of Collections at Invercargill HC Invercargill CRI 2011-425-48

[2011] NZHC 1894

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2011-425-48

DANIEL MICHAEL MOYNIHAN

Appellant

v

REGISTRAR OF COLLECTIONS AT INVERCARGILL

Respondent

Hearing:         22 November 2011

Appearances: S Vidal for the Appellant

M-J Thomas for the Respondent

Judgment:      22 November 2011

ORAL JUDGMENT OF WHITE J

Solicitors:           Crown Solicitors, Invercargill:  [email protected]

Southern Law, Invercargill:  [email protected]

MOYNIHAN V REGISTRAR OF COLLECTIONS AT INVERCARGILL HC INV CRI 2011-425-48 22

November 2011

[1]      Mr Moynihan appeals against the decision of District Court Judge Garland in the District Court at Invercargill on 17 October 2011 remitting his remaining outstanding “fines” of $2,576.80 and sentencing him to two months’ imprisonment cumulative on a sentence imposed on 18 August 2011.

[2]      Mr Moynihan had been sentenced on a number of charges in the District Court at Invercargill by District Court Judge P A Moran on 18 August 2011 to a term of imprisonment of 12 months and, but for the further sentence imposed by District Court Judge Garland, would have been released tomorrow.

[3]      The principal ground for the appeal is that the District Court Judge did not have before him a payment transaction report, which was before me, which showed that in the period from 14 May 1999 to 24 May 2011 Mr Moynihan had paid some

$7,881.80   in   reduction   of   outstanding   reparation   and   fines   totalling   some

$10,458.60, leaving the balance of $2,576.80.

[4]      In these circumstances, as Miss Thomas, the Crown Solicitor, acknowledged, District  Court  Judge  Garland’s  decision  should  not  stand  as  it  is  clear  that Mr Moynihan has shown an ability to make regular payments in reduction of his reparation  and  fines  and  that  there  is  every  prospect  that  if  he  were  released tomorrow in accordance with the decision of District Court Judge Moran he would be in a position to obtain employment and resume making further payments in reduction of the outstanding reparation and fines.

[5]      The  appeal  is  therefore  allowed.    The  decision  of  District  Court  Judge Garland remitting the remaining reparation and fines of $2,576.80 is cancelled, the outstanding amount of $2,576.80 is reinstated and the decision of two months’ imprisonment cumulative on the sentence imposed on 18 August 2011 is quashed

under s 121(3)(b) of the Summary Proceedings Act 1957.

D J White J