Robertson v Registrar of Collections at Invercargill HC Invercargill Cri-2010-425-000048

[2011] NZHC 852

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

cri-2010-425-000048

DANNY RAY ROBERTSON

Appellant

v

REGISTRAR OF COLLECTIONS AT INVERCARGILL

Respondent

Appearances: S Vidal for Appellant

?? for Crown

Judgment:      7 February 2011

ORAL JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      Mr  Robertson,  the  appellant,  appeals  against  a  sentence  of  two  months’

imprisonment for non-payment of fines.

[2]      The sentence was imposed by a District Court Judge following proceedings being  initiated  pursuant  to  s  88  of  the  Summary  Proceedings  Act  1957.    Mr Robertson was a sentenced prisoner, having been sentenced the previous week to a term of imprisonment of one year, eleven months for assault.

[3]      The total amount of fines owing was $7895.  This comprised $5895 worth of fines for traffic infringement offences and enforcement fees of $2000.   The fines

were amassed between August 2008 and March 2010.

ROBERTSON V REGISTRAR OF COLLECTIONS AT INVERCARGILL HC INV cri-2010-425-000048 7

February 2011

[4]      Mr Robertson is 22 years of age.

[5]      This was not the first occasion on which Mr Robertson has had outstanding fines remitted.   In 2004, $860 was remitted by a Judge.  In 2007, $19,790.05 was remitted and Mr Robertson was sentenced to 200 hours’ community work.  In 2008 a further $6321.51 was remitted and he was sentenced to 180 hours’ community work.

District Court decision

[6]      In remitting the fines and imposing a two-month prison sentence the District

Court Judge had this to say:

[1]       In relation to your position Mr Robertson this is not a question of where I make decisions in relation to penal policy or the way in which sentences are dealt to.  You have amassed large amounts of fines over the years.  In 2007 you had over $19,000 remitted for 200 hours of community work.   By 2008 you had amassed another $6,321 for which you got 180 hours  community  work.    Now  you  have  $7,895  amassed.    You  are  a sentenced inmate.   Prison is inevitable in relation to the fines that I am remitting.  I do not take note of, and I totally disregard, what impact it might have upon your current sentence and parole.

[2]       The fines of $7,895 are remitted.  In lieu you are sentenced to two months imprisonment cumulative on the one year 11 months imposed on 3

December 2010…

[7]      The  Judge’s  reference  to  parole  was  occasioned  by  the  fact  that  the imposition of an additional two months meant Mr Robertson would no longer be entitled to automatic early release and that he would have to apply for parole, the additional two months taking him over the two-year threshold.

Grounds of appeal

[8]      On  appeal,  Ms  Vidal  acknowledges  that  in  itself  the  fact  the  original infringement offences are not punishable by imprisonment does not mean the Judge was  not  entitled  to  impose  a  custodial  sentence.    However,  she  submits  that  a sentence of two months cumulative was manifestly excessive and wrong in principle.

[9]      In support of that contention, she advanced the following arguments:

(i)The Judge failed to give proper consideration to the legislative framework which  is  a hierarchical  one underpinned  by the principle that imprisonment should be a last resort and inappropriate for default that is not wilful but due rather to a lack of means.

(ii)The Judge failed to have regard to the relatively modest level of the fines.

(iii)The Judge failed to have regard to appropriate alternative penalties such as extension of payment or remission without any other penalty.

(iv)The Judge failed to take into account Mr Robertson’s past compliance with the community work sentences which in Ms Vidal’s  submission  demonstrated that  when  a sentence was imposed that Mr Robertson was able to comply with, he did so comply.

[10]     While Ms Vidal does not take issue with the Judge’s refusal to have regard to parole implications of the sentence, she nevertheless submits that parole issues are relevant because they mean appellate interference would not amount to tinkering.

Discussion

[11]     Section 106E(2) of the Summary Proceedings Act states:

(2)       Subject to section 83 of this Act, a District Court Judge shall not direct the issue of a warrant of commitment for the imprisonment of the defendant under this Part of this Act for non-payment of a fine unless—

(a)       A statement of means has been completed by the defendant within the immediately preceding 14 days; and

(b)      The defendant has had the same opportunity for legal representation as is available to a defendant who is liable to a sentence of imprisonment under section 30 of the Sentencing Act 2002; and

(c)      The defendant is before a District Court Judge; and

(d)       The defendant's last completed statement of means has been considered by the District Court Judge; and

(e)      The warrant of commitment can be executed immediately;

and

(f)       The Judge is satisfied that all other methods of enforcing the fine have been considered or tried and that they are inappropriate or unsuccessful; and

(g)       The Judge is satisfied that the defendant has the means to pay the fine.

[12]     At  first  blush,  subs  (2)(f)  would  support  Ms  Vidal’s  argument  about

imprisonment being a sentence of last resort.

[13]     However s 106E(7) specifically states that none of the above requirements apply in the case of a defendant who is already in prison.  I therefore do not accept that the Judge has erred.  The legislature has deliberately removed the requirement about imprisonment being the sentence of last resort, and so the need to give effect to that deliberate policy decision means in my view that the Judge was correct in his approach.  He is not required to be satisfied that there were other alternatives before imposing a term of imprisonment.

[14]    Turning then to the issue of whether a two-month prison sentence was manifestly excessive.  Section 90 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.

[15]     The Court of Appeal has confirmed that the period of three months under s

90(b) applies to the non-payment of any fine: see R v Wright (CA45/06, 6 July

2006).  That means that technically Mr Robertson was liable to up to three months’

imprisonment in respect of each of the 20 unpaid fines.

[16]     In considering whether two months’ imprisonment was manifestly excessive having regard to the level of unpaid fines and the number of fines, as well as Mr Robertson’s past history, I have had regard to several previous decisions.   They include  Wright  v  Collections  Unit  Dunedin  Court  HC  Dunedin  CRI-2005-412-

000048, 28 November 2008; Sheary v Registrar of Collections Unit at Tauranga HC Tauranga CRI-2008-463-000072, 23 December 2008; Brand v Registrar of Collections  at  New  Plymouth  HC  New  Plymouth  CRI-2008-413-000025,  10

November 2008; Davis v Registrar of Collections Unit at Dunedin HC Christchurch CRI-2005-409-000013, 13 May 2005; Hadfield v Collections Unit Christchurch HC Christchurch CRI-2008-409-000125, 15 August 2008; and Pene v Registrar of Collections Unit at Hamilton HC Hamilton CRI-2010-419-000014, 25 March 2010.

[17]     Having regard to the comparator cases, and bearing in mind that a prison term results from the exercise of a discretion rather than a mathematical formula, I am satisfied that a sentence of two months was within range.

[18]     I am also satisfied that a cumulative sentence was justified under s 88(1) of the Sentencing Act 2002, assault being different in kind from the unpaid fines.

[19]     Finally,  for  completeness,  I  should  record  that  I  have  also  considered questions of totality.  In Brand Andrews J held that the totality principle in s 85 of the Sentencing Act is relevant when considering the imposition of a prison sentence in lieu of unpaid fines where the offender is already serving an existing prison sentence, as of course is Mr Robertson in this case.  Having addressed that issue, I am satisfied for the purposes of s 85(2) that the totality principle does not warrant any reduction.   In particular, I am satisfied that the imposition of a cumulative sentence has not resulted in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

[20]     For all these reasons, I have come to a clear view that the grounds of appeal are not sustainable.   The appeal is  therefore  dismissed and the sentence of the District Court Judge confirmed.

Solicitors:

Southern Law, Invercargill

Crown Solicitor’s Office, Invercargill