Pittwood v Ministry of Health
[2014] NZHC 2976
•28 November 2014
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2014-443-000016 [2014] NZHC 2976
BETWEEN JOANNE PITTWOOD AND BRENDAN
PITTWOOD Appellants
AND
MINISTRY OF HEALTH Respondent
Hearing: 20 October 2014 (Additional material received on 31 October
and 11 November 2014)
Appearances:
J Hannam for the Appellants
S Carter for the RespondentsJudgment:
28 November 2014
JUDGMENT OF ELLIS J
This judgment was delivered by me on Friday 28 November 2014 at 2.15 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Counsel/Solicitors:
J C Hannam, Hannam & Co Lawyers, New Plymouth
S Carter, Luke Cunningham & Clere, Wellington
PITTWOOD v MINISTRY OF HEALTH [2014] NZHC 2976 [28 November 2014]
[1] Mr Pittwood pleaded guilty to six representative charges of performing a restricted activity contrary to s 9(4) of the Health Practitioners Competence Assurance Act 2003 (the Act). Mrs Pittwood pleaded guilty to three representative charges under the same section. The maximum penalty on conviction under s 9(4) is a fine of $30,000.
[2] On 5 June 2014, Judge Roberts imposed a fine of $10,000 on each charge.1
Thus Mr Pittwood has been fined a total of $60,000 and Mrs Pittwood has been fined a total of $30,000. They appeal on the grounds that the fines are manifestly excessive.
The offence provisions
[3] Section 9 of the Act relevantly provides:
9 Certain activities restricted to particular health practitioners
(1) The Governor-General may, from time to time, by Order in Council made on the recommendation of the Minister, declare an activity that constitutes or forms part of a health service to be a restricted activity.
…
(3) The Minister may recommend that an Order in Council under this section be made only if … he or she is satisfied that members of the public risk serious or permanent harm if the activity is performed by persons other than health practitioners who are permitted by their scopes of practice to perform that activity.
(4) No person may perform, or state or imply that he or she is willing to perform, an activity that, by an Order in Council made under this section, is declared to be a restricted activity unless the person is a health practitioner who is permitted by his or her scope of practice to perform that activity.
…
(6) Every person commits an offence punishable on … conviction by a
fine not exceeding $30,000 who contravenes subsection (4).
[4] The Health Practitioners Competence Assurance (Restricted Activities) Order
2005 was promulgated under s 9(1). It lists five “restricted activities”, including what is known as high velocity, low amplitude manipulative techniques (HVLA) in
1 Ministry of Health v Pittwood DC New Plymouth CRI-2013-043-1469, 5 June 2014.
relation to cervical spinal joints. HVLA is a form of treatment practised by some osteopaths and/or chiropractors.
[5] The risks associated with cervical spine manipulation include stroke or death; fracture of bones; and irritation of cervical nerve roots causing pain, anaesthesia, paraesthesia and weakness.
Facts
[6] For some considerable time Mr and Mrs Pittwood were, together, holding themselves out as osteopaths and/or chiropractors, practising under the name Optimum Healthcare Partnership. They ran the practice from a building at the back of their house in New Plymouth. Both were using HVLA on their patients.
[7] Mr Pittwood was not and never has been a registered osteopath, or a registered chiropractor. He was not therefore permitted to perform HVLA.
[8] Mrs Pittwood had previously been registered as an osteopath. However she was suspended from practice on 29 March 2007. For reasons that are not altogether clear to me her suspension remains in force. Accordingly, she was also not permitted to perform HVLA.
[9] The Ministry of Health received an initial complaint in 2010 from a woman who had taken her daughter to Optimum Healthcare in late 2009 for treatment of neck pain. She made the complaint after discovering that neither Mr nor Mrs Pittwood was registered.
[10] By 2012, the Ministry had received further complaints. An investigation revealed that it was widely believed in the community that the appellants were registered osteopaths.2
[11] On 29 January 2013, a search warrant was executed at the appellants’
property.
2 A search of the internet on 3 December 2012 for osteopaths in New Plymouth revealed nine references to Optimum Healthcare.
[12] A registered osteopath and member of the Osteopathic Council examined the patient records. The records indicated that the appellants would regularly undertake HVLA on their patients, and that the cervical manipulation performed was “often crude with non-specific quality”. Two or three “segments” were adjusted together, whereas a competent practitioner aims to adjust just one at a time.
The charges
[13] The summary of facts records that over the period in question the appellants had performed HVLA on at least 50 patients. Charges against them were, however, laid representatively, in relation to nine individuals (six in relation to Mr Pittwood and three in relation to Mrs Pittwood) who had been treated between 2010 and
2013.3 Although it seems that the Pittwoods’ offending predated 2010, the three year
limitation period operated to prevent the laying of charges in relation to that earlier period.4
[14] More particularly, the charges were that: (a) Mr Pittwood performed HVLA:
(i)“regularly” on Ms JS, who had been a patient since 2008. He charged her $60 each time (CRN 13043500859);
(ii) on at least four occasions on Miss AG, who was 15 years old
(CRN 13043500861);
(iii) on Mrs JG (Miss AG’s mother) four or five times during 2012.
On one occasion, Mrs JG experienced a migraine afterwards and on another she was dizzy for the remainder of the day
(CRN 13043500862);
3 Some of the representative charges relate to shorter time-spans.
4 Health Practitioners Competence Assurance Act 2003, s 173.
(iv)“regularly” on Ms PA who had been a patient since 2008. Mr Pittwood saw her three times over a short period and then on average twice a year (CRN 13043500863);
(v)“regularly” on Mr DA who had been a patient since 2006 (CRN 13043500864);
(vi) twice on Ms MM, which caused her considerable pain (CRN
13043500865).
(b) Mrs Pittwood performed HVLA:
(i) “frequently” on Ms KM who had been a patient since 2006.
The charge on each occasion was $60. Ms KM believed Mrs Pittwood was a registered osteopath because of an advertisement in the yellow pages and certificates on the wall (CRN 13043500868);
(ii)“on occasion” on Ms JS, who is also the complainant in the charge against Mr Pittwood in CRN 13043500859 above (CRN 13043500869);
(iii)twice on Ms MM, who is also the complainant in the charge against Mr Pittwood in CRN 13043500865 above (CRN
13043500871).
Previous convictions
[15] Mr Pittwood has no previous convictions.
[16] Mrs Pittwood has 12 earlier convictions for using a document with intent to obtain a pecuniary advantage. It appears that those convictions relate to falsified
ACC treatment invoices. It was as a result of those charges that she was suspended from practice in 2007.5
District Court sentencing
[17] Judge Roberts did not seek to differentiate between the nine charges in terms of their seriousness or between the two offenders in terms of their culpability. In selecting a starting point of general application he referred to the decision of Ministry of Health v Park, a case involving an unregistered optometrist who conducted eye examinations and prescribed contact lenses and glasses.6 In that case there had been 477 consultations or appointments, but only in two representative charges under s 9(4).7 There, the sentencing Judge adopted a starting point fine of
$19,000 on each charge, which he reduced to $15,000 on each due to Mr Park’s
guilty plea and remorse and his willingness to pay reparation.8
[18] The Judge also referred to Ministry of Health v Dawson.9 Mr Dawson had been convicted of two offences against s 9(4) for performing HVLA when he was not a registered chiropractor and 12 charges under s 7(2) for false advertising. The sentencing Judge adopted a starting point of $2,500 on each of the two s 9(4) charges, which he reduced to $1,500 each on account of Mr Dawson’s inability to pay.10 On appeal to this Court, Brewer J commented that these sentences were at the
lenient end of the spectrum but nonetheless upheld them.11 Judge Roberts
considered, however, that the offending in Dawson “had little correlation to the facts in hand”.12
[19] The Judge considered that the aggravating factors in the Pittwoods’ case
were:
5 Re Pittwood HPDT Decision 84/Ost06/42P, 29 March 2007.
6 Ministry of Health v Park DC Manukau CRI 2007-092-19622, 18 February 2008. “Prescribing of an ophthalmic appliance, optical appliance, or ophthalmic medical device intended for
remedial or cosmetic purposes or for the correction of a defect of sight” is a restricted activity in terms of s 9(4).
7 There were other representative charges relating to breaches of s 7 of the Act.
8 Once the fines imposed for the s 7 offending had been taken into account the end, combined, sentence was a fine of $48,000.
9 Ministry of Health v Dawson DC Nelson CRI-2008-043-3385, 27 January 2011.
10 Once the fines on the lesser s 7 charges had been taken into account, the combined sentence was a fine of $9,000.
11 Dawson v Ministry of Health HC Auckland CRI-2008-043-3385, 19 October 2011.
12 Ministry of Health v Pittwood, above n 1, at [39].
(a) the fact that the offending was premeditated in the sense that there was a deliberate and sustained pattern of conduct;
(b) the degree of risk involved;
(c) the duration of offending (and in particular that Mrs Pittwood had continued in “business as usual” notwithstanding her suspension in March 2007);
(d) the harm to the victims; and
(e) the financial gain to the appellants.
[20] In light of the decision in Park, Judge Roberts adopted a starting point of
$15,000 for each offence, which he described as “midrange”.13 Then, after noting that:
(a) the first call of the prosecutions had been on 28 August 2013;
(b) the appellants had pleaded not guilty on 11 September 2013; and
(c) guilty pleas were not entered until June 2014;
His Honour said that the guilty plea discount should not be more than 15 per cent. He imposed no uplift for Mrs Pittwood’s previous convictions, which he said were of a quite different nature.
[21] In the end, and “looking at things overall”, Judge Roberts imposed a fine of
$10,000 on each of the nine charges, which yielded a penalty totalling $60,000 for
Mr Pittwood and $30,000 for Mrs Pittwood.14 Tellingly, however, the Judge also noted: 15
13 At [45] (incorrectly numbered as [3] on the penultimate page of the sentencing notes).
14 At [48] (incorrectly numbered as [6]).
15 At [44] (incorrectly numbered as [2]).
There is an aspect of unreality about this process. The fines that I am asked to impose will literally, as I have said, be crippling. The likelihood of full payment, the prospect is low indeed.
The appeal
[22] The heart of the appellants’ submissions is that the combined level of fine was manifestly excessive and (as the learned Judge acknowledged) they could not afford to pay. They submitted that a $3,000 fine per charge would be appropriate with a further $1,000 downwards adjustment for totality. That would result in final fines of $12,000 for Mr Pittwood and $6,000 for Mrs Pittwood.
[23] They also contended that:
(a) Park is distinguishable because Mr Park was carrying out the “restricted activity” on all of his clients, whereas they were only engaging in a restricted activity with some of their clients;16 and
(b) they are not completely unqualified, or “dangerous” practitioners.
[24] The respondent accepts that the fines imposed are at the upper end of the available range but says they are not manifestly excessive, given the circumstances of the offending and the particular need for deterrence. The Ministry notes that the summary of facts to which the appellants pleaded guilty states that they had performed HVLA on “at least 50 patients” and that some of these patients had HVLA performed on them “regularly”. Accordingly, and as in Park, the offending was extensive.
[25] The Ministry also says that:
(a) the Pittwoods’ offending occurred over a longer period of time than in
Park (three years compared with six months);
16 That submission was not correct, as my brief discussion of the case above makes clear. It is only prescribing that is a restricted activity.
(b)the restricted activity in the Pittwoods’ case was more dangerous than in Park;
(c) by contrast with Park, the appellants did not enter their guilty plea at the first available opportunity, nor show any remorse. Rather, the Ministry says that they sought to blame others and to minimise the seriousness of their offending;
(d)the Pittwoods’ offending is far more serious than that in Dawson, where the comparable offending involved two “specific and quite discrete incidents only” and did not result in representative charges.17
[26] Lastly, the Ministry says that no evidence was adduced at sentencing in support of the contention that the appellants were financially incapable of meeting the fines over a period of time. Their combined income appeared to be not insubstantial and to take account of the effect that the combined sentences would have on them financially as a couple would be wrong in principle.
Preliminary comments
[27] Sentencing for regulatory offences of the kind presently at issue gives rise to a number of issues, all of which are evident in the present case.
[28] First, there is an issue of how such charges are laid. More particularly, offending of this nature (performing a restricted activity without the relevant registration) is likely to:
(a) have continued over some period of time; and
(b)will also be likely to comprise a series of discrete acts that may or may not be readily identifiable (either on the basis of information
provided by individual complainants or from patient records).
17 Ministry of Health v Dawson, above n 9, at [8].
[29] Obviously, decisions about the number of charges laid, and whether representative charges are appropriate, involve the exercise of prosecutorial discretion. Sections 16 – 20 of the Criminal Procedure Act 2011 are, of course, relevant to that exercise.
[30] But the potential effect of such prosecutorial charging decisions is made clear by comparing the present case with that of Mr Park, to which I have already referred above. As I said there, Mr Park had treated 477 separate patients over two, six month periods, although it is not clear on which of those 477 occasions he engaged in the relevant restricted activity. It may, however, fairly be assumed that there were many.
[31] As I have said, Mr Park was charged with only two, representative, s 9(4) counts. The (relatively high) $19,000 starting point adopted in relation to each count necessarily reflected the Court’s view of the seriousness of the offending overall. It is notable that there was no reduction required for totality in Mr Park’s case.
[32] By contrast, the Pittwoods faced nine representative charges which encompassed comparatively few discrete instances of offending. The number of charges necessarily exposed the Pittwoods to a far higher overall fine, particularly if a starting point akin to that in Park were adopted for each. Accordingly, and because fines cannot be imposed concurrently, the need for the sentencing court to take a hard look at totality seems to me to be particularly acute.
[33] Secondly, although the facts underlying multiple charges in these kinds of cases are likely to be very similar (because they occur in the context of a more or less continuous stream of offending), the Court is still in my view required to consider whether there are material differences between the charges or (indeed) between the respective culpability of co-offenders. In the present case, for example, there are the distinctions that might reasonably be drawn between:
(a) offences involving complainants who suffered physical harm and offences involving complainants who did not; and
(b)Mrs Pittwood, who was a trained (but not presently registered) osteopath, and Mr Pittwood, who has never been eligible for registration.
[34] And thirdly, in all cases where a Court is, or might be, required to impose multiple fines for non-imprisonable offences, there is the relevance of an offender’s ability to pay. That is a matter which appears to have been entirely overlooked by the learned District Court Judge in the present case. More particularly, s 40 of the Sentencing Act 2002 provides:
(1) In determining the amount of a fine, the court must take into account, in addition to the provisions of sections 7 to 10, the financial capacity of the offender.
(2) Subsection (1) applies whether taking into account the financial capacity of the offender has the effect of increasing or reducing the amount of the fine.
(3) If under an enactment an offender is liable to a fine of a specified amount, the offender may be sentenced to pay a fine of any less amount, unless a minimum fine is expressly provided for by that enactment.
…
(emphasis added)
[35] The mandatory nature of s 40(1) was confirmed by the Court of Appeal in R v Khan.18 Where a financial penalty is the only penalty authorised by statute, it is contrary to principle to impose a fine which the offender has no prospect of paying.19
[36] In terms of the Court’s power to obtain the information needed to undertake this inquiry, s 41(2) states:
(2) If the court considers that a fine of $100 or more may be an appropriate sentence, but it is uncertain about the offender's ability to pay the fine, the court may direct the offender to make a declaration as to his or her financial capacity in accordance with section 42.
18 R v Khan CA 312/05, 7 March 2006 at [39] and [40].
19 Ministry of Agriculture and Fisheries v Finn (1994) 12 CRNZ 127 (HC).
Further evidence sought and received
[37] Given both the omission of any reference to ss 40 and 41 from the sentencing remarks, and the tenor of the Judge’s comments noted at [21] above. I afforded the Pittwoods the opportunity to file further evidence on the issue before preparing this judgment.20 The evidence filed took the form of an affidavit from their (relatively newly instructed) accountant, Marise James of Staples Rodway Taranaki Ltd.
[38] The affidavit annexes the couple’s financial statements for 2012 and 2013
and its narrative discloses that:
(a) apparently due to the effect of these proceedings on the Pittwoods and personal issues suffered by their former accountant, they are quite seriously in arrears with their GST and PAYE. They have now entered into an arrangement with the Commissioner of Inland Revenue that requires them to make payments to IRD of $2,500 until April 2016;
(b)the Pittwoods’ house is owned by their Family Trust, with equity of approximately $50,000 (or a little under 15 per cent). The bank will not make further advances;
(c) they have agreed to put their life insurance payments on hold and reduce their regular church donations, to dispose of two hire purchase vehicles and to commit to a budgeting plan;
(d)on the basis of the above their forecasted cash surplus for the current year is approximately $16,000.
[39] Issue was taken by counsel for the Ministry about aspects of the fresh financial evidence and, in particular, the absence of further information about the
Pittwoods’ family trust and their continued (albeit reduced) church donations.
20 Although it seems that a statement of means was included with the submissions on sentence made on behalf of the Pittwoods’ the statement was vague and uncorroborated. In any event, it was not referred to at all by the sentencing judge.
[40] I accept that, ideally, there might be further elucidation on some matters. But I am not inclined to go too far behind the sworn evidence of a professional accountant. I am prepared to accept that they are in straitened financial circumstances, and would be unable to pay fines at the level imposed by the District Court.
[41] I also record that I do not accept the Ministry’s submission that no account should be taken of the fact that the Pittwoods are married. Their combined position is plainly relevant to an assessment of their respective abilities to pay.
Discussion
[42] In my view the learned District Court Judge made two material errors when sentencing the appellants:
(a) he failed to consider each (representative) offence separately and to differentiate in terms both of the comparative seriousness of the offences themselves and the relative culpability of the two appellants; and
(b) he failed to take into account the Pittwoods’ ability to pay.
[43] But the mere existence of error does not mean that the sentences imposed were manifestly excessive. It is trite that, in sentencing matters, the precise methodology adopted by the Judge is less important than the end result. That said, however, the Judge’s own comment that the totality of the fines he imposed would be “crippling” for the appellants seems to me to be a clear indicator that something has gone awry.
[44] In any event, in order to assess whether the sentences imposed were indeed manifestly excessive it is necessary now to consider the matter afresh, in light of all the matters I have canvassed above. I begin in the orthodox way, by assessing the gravity of the Pittwoods’ offending.
Gravity
[45] Viewed overall, the conclusion that the offending was serious is inescapable. Although the risk of harm is inherent in any s 9(4) offence, the risk here is particularly grave, far graver than in Park. I have already noted above the finding that the Pittwoods were adjusting two or three cervical “segments” at a time which is contrary to best practice. Accordingly it may simply be fortuitous that no-one was seriously injured.
[46] The risks were, in my view, greater in the case of Mr Pittwood, who appears to have had no formal training and for whom registration was never an option. That is borne out by the fact that some of his patients did report actual harm.
[47] Equally, the fact that Mrs Pittwood has previously been registered (and was not deregistered for safety reasons) is arguably in her favour, in terms of any specific risk analysis. Conversely, however, there seems to have been a deliberate choice made by Mrs Pittwood not to take the steps necessary to reregister after her previous suspension had ended. It therefore becomes particularly important in her case that any fine imposed is not perceived as simply some kind of de facto registration fee.
[48] Next, there is the fact that both the appellants’ offending took place on many occasions, against a number of individuals and over a long period of time. In the context of representative charges it is important not to double count or effectively to sentence for other actions that do not form the basis of charges. However, the Court of Appeal has acknowledged that: 21
It is a well established principle that the Court may not increase the sentence for a particular offence merely because of the commission by the defendant of other offences for which he has not been charged or has gained an acquittal… On the other hand it is perfectly permissible to take into account facts and circumstances (which fortuitously of themselves might constitute separate offences) in order to determine the gravity of and appropriate punishment for the offence for which he is charged and convicted.
21 Lane v Auckland City Council [1975] 1 NZLR 353 (CA). To similar effect see also R v
Pattison (2002) 19 CRNZ 407 (CA) and R v Wharton (2003) 20 CRNZ 109 (CA) at [14].
[49] Accordingly, the existence of further patients on whom the Pittwoods performed HVLA but in relation to whom they were not charged is a relevant aggravating factor.
[50] Lastly, and in terms of the element of financial gain, this seems to me to be largely inherent in the nature of this kind of offending. It is difficult (although admittedly not impossible) to conceive of a situation where unauthorised HVLA is performed other than for reward. I would not give this factor any significant weight.
Appropriate starting points
[51] In setting the appropriate starting points for each charge I take into account the various aggravating features noted above. Also relevant, in terms of differentiating the various charges, is the number of times on which the offending occurred in relation to the relevant patient, which ranges from two times to “regularly” and “frequently”.
[52] As well, there are the starting points adopted in the two other s 9(4) cases already mentioned, Dawson and Park. In that respect I respectfully disagree with Judge Roberts and consider that Dawson does appear to be a useful comparator. I say that principally because Mr Dawson was engaged in exactly the same activity, (unauthorised) HVLA. Moreover, it seems that (like Mrs Pittwood at least) he may have been a formally (overseas) trained chiropractor who was (for reasons that are not clear) “at war” with the relevant regulatory body and had been refused registration but continued to practise HVLA anyway. It will be recalled that in his case the sentencing Judge adopted starting points of $2,500 on two single (ie not representative) charges.
[53] In light of all these matters (including the two cases just mentioned) I
consider that the appropriate starting points in relation to Mr Pittwood’s offending
are as follows:22
22 The different level of fine for each charge is intended to reflect (a) the number of times on which HVLA is said to have been performed on the relevant complainant and (b) whether any actual harm resulted.
(b) in relation to Miss AG (CRN 13043500861), $12,000; (c) in relation to Mrs JG (CRN 13043500862), $18,000; (d) in relation to Ms PA (CRN 13043500863), $15,000; (e) in relation to Mr DA (CRN 13043500864), $15,000; (f) in relation to Ms MM (CRN 13043500865), $10,000.
[54] For Mrs Pittwood’s offending, the starting points would be:23
(a) in relation to Ms KM (CRN 13043500868), $10,000; (b) in relation to Ms JS (CRN 13043500869), $7,500;
(c) in relation to Ms MM, (CRN 13043500871), $7,500.
[55] Those starting points would give total fines for Mr Pittwood of $85,000 and for Mrs Pittwood of $25,000 (and a combined total of $110,000). Overall that is approximately 20 per cent less than the total yielded by the starting points adopted by Judge Roberts.
What adjustments to the starting points should be made?
[56] The three bases for making adjustments to these starting points that exist in the present case are:
(a) totality;
23 The different level of fine for each charge is intended to reflect the number of times on which HVLA is said to have been performed on the relevant complainant. No actual harm is alleged to have been suffered by Mrs Pittwood’s patients. The starting points are also intended to reflect the somewhat lower level of risk posed by Mrs Pittwood’s activities, by comparison with that posed by her husband.
(c) financial circumstances.
[57] There does not seem to be any consistency of approach as to whether adjustments for totality should be made before or after the Court considers factors personal to the offenders. No doubt that is because the Court of Appeal has said it does not matter.24 I note, however, that in cases to which s 85 of the Sentencing Act directly applies25 the statutory focus is on the “gravity of the overall offending” which suggests (for example) that discounts for guilty pleas should be applied after a
totality assessment. And it certainly makes more sense to perform the totality exercise before any consideration of financial means.
[58] In the present case, the combined starting point fines for each appellant are, in my view, clearly disproportionate to the gravity of the seriousness of their respective offending. Looked at on a totality basis I consider that an appropriate overall level of fine would be $50,000 for Mr Pittwood and $15,000 for Mrs Pittwood. That conclusion would require a reduction in the quantum of each fine of approximately 40 per cent.
[59] For Mr Pittwood the post-totality figures would therefore be: in relation to
Ms JS (CRN 13043500859), $9,000; in relation to Miss AG (CRN 13043500861),
$7,000; in relation to Mrs JG (CRN 13043500862), $10,000; in relation to Ms PA (CRN 13043500863), $9,000; in relation to Mr DA (CRN 13043500864), $9,000; in relation to Ms MM (CRN 13043500865), $6,000. For Mrs Pittwood the specific adjusted fines would be: in relation to Ms KM (CRN 13043500868), $6,000; in relation to Ms JS (CRN 13043500869), $4,500; and in relation to Ms MM (CRN
13043500871), $4,500.
24 See for example Wairea v R [2012] NZCA 423 where the Court said at [16]:
[16] We are not satisfied that the Judge erred in applying the totality principle. It is immaterial whether the totality adjustment is carried out before or after personal circumstances are taken into account. The end sentence properly reflected the totality of Mr Wairea’s serious offending committed over a three week time span.
25 Section 85 relates specifically to sentences of imprisonment, rather than fine.
[60] The figures that I consider are proportionate to the totality of the Pittwoods’ respective offending then require further downwards adjustment to reflect their guilty pleas. There was no dispute that something in the order of 15 per cent was appropriate. Thus:
(a) the combined total of Mr Pittwood’s fines becomes $42,500; (b) the combined total of Mrs Pittwood’s fines becomes $12,500.
[61] Then, there is the final question about the impact of the Pittwoods’ financial capacity on the appropriateness of this $55,000 total. As I have already indicated I am inclined to accept their accountant’s evidence that between them they have a surplus of only $16,000 per year.
[62] Also relevant in this regard are the powers conferred on the Court to alleviate (or at least spread) the financial hardship arising from the imposition of significant fines. In that respect s 81 of the Summary Proceedings Act 1957 provides that:
(1) If a fine is payable, the Court may -
(a) make an order doing either or both of the following:
(i) allowing a greater time than 28 days for payment: (ii) allowing payment to be made by instalments; or
(b) direct the Registrar to determine whether to enter into an arrangement with the defendant allowing greater time to pay or to pay by instalments, or both, under section 86.
…
(3) The Court may take into account information received from any source about the defendant's financial capacity before making an order under subsection (1)(a).
(4) If the Court makes an order under subsection (1)(a) and the Court is subsequently satisfied either that the defendant provided false or misleading information about the defendant's financial capacity before the order was made or that the defendant's financial capacity has changed significantly since the order was made, the Court may, after giving the defendant the opportunity to be heard, vary, suspend, or cancel the order.
[63] Section 86 confers powers on the Registrar following a referral under s 81(1)(b). It states:
(1) If a fine is payable and is not subject to an order for immediate payment, the Registrar may enter into an arrangement with a defendant or with a representative of the defendant to allow for either or both of the following:
(a) a greater time for payment:
(b) payment to be made by instalments.
(2) No arrangement under subsection (1) may permit a fine to remain unpaid for more than 5 years after the date on which the arrangement is entered into.
(3) Before the Registrar enters into an arrangement under subsection (1), the Registrar may consider any information received from any person about the financial position of the defendant or, as the case requires, about the defendant's representative.
[64] The weight of authority (including Finn) suggests that requiring individuals to pay fines by instalments which go beyond about 12 months is undesirable. Ms Carter referred me, however, to Hill v Ministry of Fisheries where Fogarty J noted that five years was “allowable” under s 86 and declined to interfere with the sentence
under appeal in that respect.26
[65] Plainly, Fogarty J’s statement is correct in as far as it goes. However to the extent he can be taken to have confirmed in any general way the appropriateness of a five year instalment period (and I do not think he can) I would respectfully disagree. Although in my view an instalment period of that length might well be appropriate where the offender is a corporation, it will rarely be so for individuals. As Lord
Bingham CJ said in R v Rollco Screw and Rivet Co Ltd:27
With a personal defendant, with a fine hanging over him, there are arguments for keeping the period of that continuing punishment within bounds. It appears to us that those arguments are much weaker (if indeed they apply at all) when one is considering a corporate defendant. There is not the same sense of anxiety as is liable to afflict an individual, and it appears to us to be acceptable on proper facts and in appropriate
26 Hill v Ministry of Fisheries HC Christchurch CRI 2004-409-000204, 18 February 2005. The decision was upheld by the Court of Appeal in relation to a quite separate (liability) issue: CA152/05, 20 March 2006.
27 R v Rollco Screw and Rivet Co Ltd [1999] 2 Cr App R (S) 436, CA at 441.
circumstances for a fine to be payable by a company over a substantially longer period than might be appropriate in the case of an individual.
[66] In a case such as this, therefore, I consider that two years is really at the outer limits of what is realistic.
[67] In the end, I consider that the fines that I would otherwise impose for the various offences should be further adjusted under s 40 by approximately half. A reduction of this magnitude is not unprecedented.28 Accordingly, I propose to reduce Mr Pittwood’s fines to a total of $20,000 and Mrs Pittwood’s fines should be further reduced so that they total $6,000.
[68] My present view is that pursuant to s 81 of the Summary Proceedings Act an arrangement should be made whereby these total fines of $26,000 are payable by the Pittwoods in instalments. However, I appreciate that they may need to discuss this proposal and an appropriate instalment period with their accountant and with each other. For that reason I am going to make a direction to the Registrar of the District Court under s 81(1)(b) of the Summary Proceedings Act that, in light of this judgment, he is to determine whether to enter into an arrangement with the Pittwoods allowing them to pay by instalments under s 86. The details of any such arrangements I leave to be worked out between the Pittwoods and the Registrar although I reserve leave in the event of any difficulty. I reiterate, however, that I do not consider that an instalment period of anything approaching five years is appropriate or desirable.
Result
[69] The appeal is allowed accordingly. The fines imposed by the learned District Court Judge on each of the nine representative charges are quashed and the following fines are substituted:
(a) For Mr Pittwood’s offending:
(i) in relation to Ms JS (CRN 13043500859), $3,600;
28 For comparative purposes the schedule to this judgment records fine reductions made on s 40
“ability to pay” grounds in other cases.
(ii) in relation to Miss AG (CRN 13043500861), $2,800; (iii) in relation to Mrs JG (CRN 13043500862), $4,000; (iv) in relation to Ms PA (CRN 13043500863), $3,600;
(v) in relation to Mr DA (CRN 13043500864), $3,600; and
(vi) in relation to Ms MM (CRN 13043500865), $2,400. (b) For Mrs Pittwood’s offending:
(i) in relation to Ms KM (CRN 13043500868), $2,400; (ii) in relation to Ms JS (CRN 13043500869), $1,800; and (iii) in relation to Ms MM (CRN 13043500871), $1,800.
(c) The Registrar of the District Court at New Plymouth is to determine whether to enter into an arrangement with the Pittwoods to allow for payment of these fines to be made by instalments, in light of what I have said in this judgment.
(d)Leave is reserved to the Pittwoods and the Ministry to raise any matters that are consequential upon, or ancillary to, these orders with
me by way of memorandum.
Rebecca Ellis J
SCHEDULE
| Case | Offence(s) | Reduction for financial capacity |
| Shanly v Police [2013] NZHC 1197. | Owner of truck and trailer on road with gross weight over maximum (x2). | Starting point of around $3,000 on each count reduced to $2,000 each (“based in large measure on financial capacity”). |
| Grant v Police [2012] NZHC 1226. | Failure to answer witness summons. | $450 fine reduced on appeal to $75 (District Court Judge did not take into account s 83 of Summary Proceedings Act under which Court must only order immediate payment if satisfied defendant has means to pay). |
| Guangda v Ministry of Fisheries HC Wanganui CRI-2010-483-41, | Obtaining benefit by knowingly possessing paua otherwise than in accordance with Fisheries Act 1996 (x2). | $3,000 fine on each count reduced on appeal to $1,000 on each. |
| Zheng v Ministry of Health HC Auckland CRI-2007-404-384, 30 June 2008. | Advertising new medicine before consent given by Minister of Health (x1); and sale of new medicines before consent given (x5). | For the defendant company: $12,000 starting point reduced to $6,000. |
| Waaka v Police HC Dunedin CRI-2007-412-16, 6 June 2007. | Theft and using offensive language. | $900 fine reduced on appeal to $300. |
| R v Khan No 2 CA312/05, 4 April 2006. | Male assaults female. | $3,500 fine and $1,500 reparation reduced on appeal to $500 fine and $1,500 reparation. |
| Taylor v Hertz HC Auckland CRI-2006-404-467, 1 May 2006. | Carrying on business as motor vehicle dealer without a licence. | $9,000 reduced on appeal to $800. |
| Smallridge v Department of Inland Revenue HC Auckland CRI-2004-404-342, 5 October 2004. | Failing to file income tax returns (x3) and goods and services tax returns (x46) | $75 starting point on each charge reduced to $45 on each (primarily due to straitened financial means and also in combination with other mitigating factors). |
| East Bay Heli Services Ltd v R HC Rotorua AP53/03, 13 November 2003. | Unlawful hunting. | For defendant Grant Matthews: $9,000 reduced on appeal to $2,500. |
| Manukau City Council v Wall DC Auckland T/9048059005, 14 August 2000. | Felling protected trees. | Starting point of $3,000 reduced to $1,200. |
| Sulusi v Minister of Agriculture and Fisheres HC Napier AP19/95, 2 August 1995. | Taking paua without permit, possession of paua for sale, selling paua in contravention of Fisheries Act and giving false particulars. | Mr Sulusi: $1,500 reduced on appeal to $325. Mrs Sulusi: $1,000 reduced on appeal to $200. |
| MacDuff v Ministry of Agriculture and Fisheries HC Invercargill AP52/90, 10 December 1990. | Landing consignment of undersized rock lobster tails. | $2,500 reduced on appeal to $500. |
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