Richards v Ministry of Justice HC Hamilton CRI 2009-419-83
[2010] NZHC 466
•30 March 2010
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2009-419-83
DAVID TE HOKO WHETU RICHARDS
Appellant
v
MINISTRY OF JUSTICE
Respondent
Hearing: 23 March 2010
Appearances: J Buckle for appellant
J O'Sullivan for respondent
Judgment: 30 March 2010
JUDGMENT OF ALLAN J
In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 2.00 pm on Tuesday 30 March 2010
Solicitors:
J Buckle, Hamilton jame[email protected]
Crown Solicitor Hamilton
RICHARDS V MINISTRY OF JUSTICE HC HAM CRI 2009-419-83 30 March 2010
[1] This is an appeal by Mr Richards against a sentence of four months imprisonment imposed upon him in the Hamilton District Court on 15 October 2009, in lieu of unpaid fines of $11,374.68, which were remitted by the sentencing Judge, Judge Everitt. In support of the appeal Mr Buckle submits that:
a) Judge Everitt must be taken to have overlooked the parole consequences of imposing a cumulative sentence of four months imprisonment in the context of the appellant’s earlier sentence of
21 months imprisonment for other offending;
b)In all the circumstances the sentence of four months imprisonment was manifestly excessive.
Background
[2] The fines were accumulated over a period of almost ten years. For the most part, they were imposed for relatively minor offences. There were eight charges of failing to carry a warrant of fitness, five of exceeding the posted speed limit, 13 of breach of learner licence conditions, one of failing to comply with a red traffic signal, five of driving an unlicensed motor vehicle, nine other minor licensing offences, and finally one lone offence of obtaining credit by fraud.
[3] Although I have characterised this offending as minor (in order to distinguish it from much more serious criminal offending), I do not in any sense intend to down- play the appellant’s culpability. There is substance in the observations of the Deputy Registrar of the Collections Unit, who submitted to the learned District Court Judge:
Forty-two of the offences could be considered to be accident promoting. Of particular concern are those for no warrant of fitness, which (although being minor in themselves) relate directly to vehicle fitness and road safety. Also of concern are the breaches of learner licence conditions. These conditions were imposed to address the unduly high accident rate involving young and inexperienced drivers. They are designed to allow inexperienced drivers to drive under certain conditions while gaining experience. In this case 11 breaches were for driving unaccompanied. This meant that a person who had passed the theory test only was driving unsupervised.
His offending can only be described as deliberate and repetitious and his attitude towards his fines as cavalier.
[4] The Registrar also advised the sentencing Judge that there were, initially, voluntary arrangements to pay the fines, but after 2007 compulsory payments by way of attachment orders were required. Enforcement action was taken on at least seven occasions for breach of existing arrangements.
[5] The Court was told that only $1,419.32 in total had been paid off by the appellant over time. In addition, some $6,650.00 was remitted without penalty in the Feilding District Court.
[6] On 21 August 2009, the appellant appeared before Judge Connell in the Hamilton District Court for sentence on charges of injuring with reckless disregard, and of assault with intent to injure. He was sentenced to one year nine months imprisonment on the first charge and to a concurrent 12 month term on the second.
[7] Some two months later Mr Richards appeared before Judge Everitt in respect of the outstanding fines. He accepted that it was appropriate to substitute a sentence of imprisonment in return for the remission of his fines. The only issue was the term of the substituted sentence. Judge Everitt’s sentencing notes read in their entirety:
[1] Mr David Richards appears today pursuant to outstanding fines totalling $11,374.68. He is represented by a duty solicitor and has indicated to the Court that he wishes to have the matter dealt with and does not oppose the imposition of an alternative sentence. The only alternative sentence is one of imprisonment.
[2] He is currently serving a term, I think, of 18 months imprisonment imposed in August 2009 in this Court. I am cognisant of the decisions of the Court in the case referred by Mr Bardsley, namely Court of Appeal decision upholding the decision of Chisholm J which upheld a decision of Judge O’Driscoll in R v Wright CA45/06 6 July 2006. The fines in this case are nowhere near as extensive as in that case, but they have been owing over almost 12 years.
[3] I propose to try and be as fair as possible to Mr Richards, eliminating these fines by a cumulative sentence of imprisonment on his current term, but not as to be so extensive as to be crushing, bearing in mind the totality principle.
[4] I have broken the fines down into two sections, no warrant of fitness and speeding, breach of learner’s licence and failing to comply with road traffic signal. I believe it is fair and reasonable to impose a sentence of two
months imprisonment on each of those groups making a total of four months imprisonment to be cumulative on your current sentence. That will then wipe out $11,374.68.
[8] The result was that Mr Richards was required to serve cumulative terms totalling two years one month.
Legal principles
[9] The maximum penalty which the Court may impose for non-payment of fines is governed by s 90 of the Summary Proceedings Act 1957 which provides:
90 Scale of imprisonment for non-payment of fine
The period of imprisonment imposed under this Act in respect of the non- payment of any fine or where the sale of any property under any process does not produce sufficient proceeds to pay the fine, shall be such period as in the opinion of the Court or District Court Judge fixing the period will satisfy the justice of the case, not exceeding,—
(a)In the case of an offence that was punishable by imprisonment, the maximum term of imprisonment to which the defendant was liable on the conviction, or a period of 1 year, whichever is the lesser:
(b) In any other case, a period of 3 months.
[10] In R v Wright the Court of Appeal held that s 90 does not restrict the sentence of imprisonment to a maximum of three months regardless of the number or amounts of the fines remaining unpaid. Rather, the provisions of s 90, read in the context of Part 3 of the Act, provide for a maximum penalty of three months imprisonment for each fine remaining unpaid. Counsel in this case accordingly agreed that Judge Everitt had jurisdiction to impose a cumulative sentence of four months imprisonment.
[11] In the present case, the proceedings which ultimately came before Judge Everitt were initiated by the Registrar pursuant to s 88 of the Summary Proceedings Act.
[12] Section 88(3) authorises a range of alternative orders including a sentence of imprisonment. Where such a sentence is imposed it must conform with s 106E of the Act, which limits the imposition of a sentence of imprisonment, but not where a
defendant is already at the time of sentencing undergoing a sentence of detention in prison (s 106E(7)). By reason of the appellant’s status as a serving prisoner, the learned District Court Judge was not required to consider a statement of means, or to have regard to other methods of enforcing the fines: see s 106E(2).
[13] As a matter of sentencing technique, the Judge chose to separate into two groups certain of the offences for which fines had originally been imposed. Those which fell into the general category of driving without a warrant of fitness and speeding (comprising 12 offences) attracted a cumulative term of 2 months imprisonment; a further group relating to the breach of conditions attached to a learner licence and failure to comply with a road traffic signal (a total of 14 offences) attracted a further term of two months imprisonment.
[14] The remaining offences appear to have attracted no penalty whatever. They included driving an unlicensed motor vehicle, other driver licensing offences, and certain minor offences together with the conviction for obtaining credit by fraud.
The parole period point
[15] Judge Everitt thought that the appellant might have been serving a current term of 18 months imprisonment: [2]. It is common ground that the appellant was by then serving the term of 21 months imprisonment imposed upon him earlier by Judge Connell.
[16] Mr Buckle submits that Judge Everitt may, in making the assumption that the existing term was only 18 months imprisonment, have calculated the additional four month term, knowing that he would not thereby affect the appellant’s parole entitlement at the point at which he had served one-half of his overall sentence. But as Mr Buckle readily accepts, there is simply nothing on the record to suggest that the Judge did take parole considerations into account.
[17] Moreover, and rather more importantly, he would not have been justified in doing so. In general, it is not appropriate for a Court on sentencing to have regard to parole eligibility in determining a proper sentence: R v Stockdale [1981] 2 NZLR
189 (CA); R v Graham CA293/05 14 December 2005 at [47]. Only in an exceptional case would it be proper for the Court to consider the parole consequences of a sentence of imprisonment. Mr Buckle did not seek to argue that this was such an exceptional case. This ground of appeal must fail.
Manifestly excessive?
[18] Little guidance is provided in the Summary Proceedings Act as to the proper approach to sentencing in substitution for unpaid fines. Helpfully, Randerson J gathered together certain of the relevant considerations in Davis v Registrar of The Collections Unit Dunedin HC Dunedin CRI-2005-412-13, 3 May 2005. That was an appeal against a sentence of 400 hours of community work imposed in the District Court for non-payment of fines totalling about $4,000. At [9] His Honour said:
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).
[19] The observations of Randerson J were adopted by Panckhurst J in Hadfield v
Collections Unit Christchurch HC Christchurch CRI-2008-409-125, 15 August
2008. Hadfield was an appeal from a sentence of 12 months imprisonment for failure to pay reparation amounting to $335,794.00. Although regarded as stern, that sentence was upheld on appeal.
[20] In Wright Judge O’Driscoll had sentenced the appellant to 12 months imprisonment for non-payment of fines totalling $95,184.34. That sentence was comprised of four cumulative terms each of three months imprisonment, which is of course the maximum prescribed by s 90(b) of the Summary Proceedings Act. In the District Court, the Judge had grouped the fines by reference to the calendar year in which they were initially imposed. Chisholm J upheld that sentence. On appeal to the Court of Appeal, the appellant effectively confined his argument to the issue as
to the proper construction of s 90, to which I have earlier referred. Ultimately, therefore, the original sentence was upheld.
[21] Although eschewing any arithmetical approach to the sentencing, Mr Buckle submits that the present sentence (four months imprisonment in return for the remission of fines of about $11,000), was significantly out of line with Wright (12 months imprisonment for the remission of fines of about $95,000). He argues that there ought however to be some degree of proportionality between the custodial sentence imposed and the quantum of the fines remitted. He suggests that an appropriate sentence in this case would have been between six weeks and three months imprisonment.
[22] In reply, Ms O’Sullivan submits that to accede to the appellant’s argument would be to engage in tinkering. I am not sure that that would be so. On a proportionate basis, a reduction from four months to three months or less would be significant.
[23] Nevertheless, I accept her submission that the circumstances simply do not warrant this Court interfering with the exercise of Judge Everitt’s sentencing discretion. Here, there were a large number of original offences. There appears to have been little effort over many years to pay the fines. Enforcement action was taken on no fewer than seven occasions. The appellant benefited from the remission of fines totalling more than $6,000 in the Feilding District Court but seems to have done little in recent times to discharge his obligations.
[24] Finally, and importantly, there is no suggestion that the appellant has either the willingness or ability to pay. These fines have been outstanding for ten years or more. The Judge was entitled to take a stern line. In my opinion a sentence of four months imprisonment in all the circumstances of this case was neither significantly out of line with Wright, nor manifestly excessive.
Result
[25] For the foregoing reasons the appeal against sentence is dismissed.
C J Allan J
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