P v Police HC Napier CIV 2007-404

[2005] NZHC 39

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2005-441-35

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         6 September 2005

Appearances: S Manning for the appellant

D Kerr for the respondent

Judgment:      13 September 2005

JUDGMENT OF ELLEN FRANCE J

[1]      The  appellant  pleaded  guilty  to  a  total  of  40  charges  of  having  in  his possession an objectionable publication (s 131(1) Films, Videos, and Publications Classification Act 1993) and of importing into New Zealand prohibited electronic publications (s 209(1)(c) Customs and Excise Act 1996).  On ten of these charges he was convicted and discharged.  On the other 30, he was convicted and fined $200 and $130 court costs on each.

[2]      The total fine imposed was therefore $6,000 and the total costs $3,900.  The appellant appeals against the order for costs.

P   V NZ POLICE HC NAP CRI 2005-441-35  13 September 2005

Factual background

[3]      The appellant subscribed to three different websites and made payment using his credit card.  He downloaded from those sites a number of images and text stories deemed objectionable.  Most of the material related to boys and young persons being exploited for sexual purposes.   The material from one of the websites was more graphic.  The charges represent a sample of the range of types and images and text stories held by the appellant.

Grounds of appeal

[4]      The appellant argues that there must be some link between the actual costs and  the  costs  figure  imposed.    Those  costs  do  not  increase  exponentially  in proportion to the number of informations filed.  Where the fine imposed is $6,000, it is manifestly excessive to then impose a sum of more than half that figure again by way of costs.  While the sum of $200 imposed here by way of fine on each charge is consistent with other, similar, offending, the appellant submits the costs imposed are not.

The respondent’s submissions

[5]      The  respondent  submits  what  the  Judge  has  done  here  reflects  common practice on a matter within the discretion of the sentencing Judge.  The Judge has considered the totality of the sentence and has exercised the discretion appropriately.

The District Court Judge’s decision

[6]      In terms of the 20 importation charges, the Judge noted the maximum penalty is six months imprisonment or a maximum fine of $10,000 on each charge.   The Judge considered that, given the nature of the material, a fine was appropriate.

[7]      On the 20 charges of possession of objectionable publications, the Judge took the view this material was more serious.   But, given the absence of any previous

convictions and the non-involvement of  anyone  else,  again,  a  fine  was  seen  as appropriate.  (The maximum penalty is a fine of $2,000.)

[8]      The Judge referred to having seen a schedule of penalties imposed in other, similar cases.  From that, the Judge concluded a fine of around $200 was appropriate on most charges.

[9]      So that the total amount was within the appellant’s capacity to pay, on ten of the charges the Judge convicted and discharged.

Discussion

[10] An award of costs is a matter of discretion for the sentencing Judge. That is clear from s 4 of the Costs in Criminal Cases Act 1967. Section 4(1) states that the Court “may”, subject to any regulations made under the Act, order a convicted defendant to pay “such sum as it thinks just and reasonable” towards the costs of the prosecution. “Costs” are defined in s 2 of the 1967 Act to mean “any expenses properly incurred”, here, by a party in carrying out a prosecution.

[11]     There  are  Regulations  prescribing  Court  fees.    Regulation  4(1)  of  the Summary Proceedings Regulations 1958 and the Second Schedule prescribes a total of $130 by way of Court fees.  The $130 is made up by the sum of $30 for the filing of any information and $100 for the hearing of any information.

[12]     In considering whether the appellant has shown that the costs order here is manifestly excessive, there are two relevant principles.

[13]     The first is the totality principal.  In the context of the Fair Trading Act 1986, Tipping  J  in  Steele  v  Commerce  Commission  (HC,  Christchurch  AP  311/92,

17 December 1992) said:

“Court costs are no doubt a method by which those appearing in the Courts make a contribution to the expense of running the Courts.   However, it is obvious that a case involving 14 charges is not, in administrative terms, 14 times more expensive than a case involving one charge.  I do not doubt that in  many  instances  it  will  be  appropriate  as  a  matter  of  administrative

convenience to impose the standard figure for Court costs on each of a number of separate informations.   If however, that is done then some recognition should be given to that fact when assessing the level of fines.”

[14]     The Judge in this case has considered the matter from a totality aspect in taking into account the ability to pay.  However, totality is not the sole determinant here.   Section 115 of the Summary Proceedings Act does provide for an appeal against an order for costs, alone.

[15]     The second relevant principle follows from the statutory provisions and it is that the costs ordered must have some relevance to the costs of prosecution (see Hall’s Sentencing APPV.7).   The sentencing Judge was given a schedule of sentencings under the Films, Videos Act.   It suggests that generally a lump sum approach is taken, being either a single charge of $130, or a greater figure which is still less than $130 per each information.

[16]     The lump sums imposed include one of $500 (12 charges under ss 123 and

124 of the Films, Videos Act); one of $1,000 for Court costs and, in the same case,

$1,500 for prosecution costs and a fine of $2,000 (44 charges under s 131).  In some cases there are also smaller awards of solicitors fees.

[17]     The exception to this apparent pattern is the Roberts case (10 December

2002, Waitakere District Court) where the defendant was convicted on 48 charges (29 x s 124, 19 x s 131).   On the s 124 charges he was sentenced to two years imprisonment; he was fined $19,000 on the 19 s 131 charges and Court costs of $130 were imposed on each of the 19 charges.

[18]     I accept the appellant’s submissions about the absence of the necessary link between the actual costs and the award made here.  In addition, the order is out of step with those in other, similar, cases.  In the circumstances, I am satisfied the order of costs was manifestly excessive.

Result

[19]     The appeal is accordingly allowed.  There is no change to the fine imposed. The order for costs of $3,900 is quashed and an order of $1,500 substituted.  This is not a statement that the total penalty to the appellant was excessive but $3,900 on a guilty plea hearing was.  Anything less than $1,500 will make the total cost to the

appellant inadequate.

Ellen France J

Delivery time:  13 September 2005, 10:00am

Solicitors/Counsel:

S Manning, PO Box 143, Napier

D Kerr, Crown Solicitor, PO Box 609, Napier