Robinson v Police HC Christchurch CRI-2007-409-000096

[2007] NZHC 1843

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2007-409-000096

WAYNE WILLIAM ROBINSON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 June 2007

Counsel:        A N D Garrett for Appellant

Z R Johnston for Respondent

Judgment:      14 June 2007

ORAL JUDGMENT OF PANCKHURST J

[1]      The appellant appeared in the District Court on 16 March for sentence upon two different offences.  One was a charge of driving with an excess breath alcohol concentration in October 2006.  The other was an offence against the Fisheries Act of possessing crayfish not obtained from a lawful source.   With reference to this charge  the  appellant  had  advertised  crayfish  for  sale  at  $15  each.    MAF  was suspicious as to this activity and set up a situation which resulted in the appellant calling at a house in Christchurch, offering to sell six crayfish at $20 each.   When asked as to their source, the appellant gave the class explanation, he had got them

from a man in a pub.

W W ROBINSON V NZ POLICE HC CHCH CRI-2007-409-000096  14 June 2007

[2]      Mr Robinson is a 50 year old sickness beneficiary and a recidivist  drink driver.  The present was his 14th  conviction for that offence.  He was sentenced to

14 months imprisonment, but granted leave to apply for home detention.

[3]      Mr Garrett confirmed that originally the notice of appeal was directed to that sentence  of  imprisonment.     However,  in  light  of  various  recent   authorities concerning drink driving, he now accepts that the penalty imposed was within the available range.  Instead attention has turned to the appropriateness of the fine.  Mr Garrett  submitted  that  for  a  beneficiary,  a  fine  of $1,000,  following  on  from a sentence of imprisonment, was clearly excessive or inappropriate.   It seems to me that this is a case which falls foul of s19(2) of the Sentencing Act 2002.   That subsection provides:

No court may, in respect of any particular offence, or in respect of 2 or more offences, impose on an offender both a community-based sentence and a sentence of imprisonment.

[4]      Hence, Judge Crosbie’s hands were tied.   Ordinarily, I rather suppose, he may well have imposed a sentence of community work in relation to the Fisheries Act offence.  That is usually an available option under the penalty provisions in that Act but, of course, he could not do so here because of the prohibition to which I have just referred.

[5]      In these circumstances Mr Garrett invites me to the view that a conviction and discharge should be entered in relation to the second charge.   He submits that given the two offences were dealt with together, which in turn led to the difficulty to which I have just averted, it would not be inappropriate to view the sentence of imprisonment as covering both offences.

[6]      I have difficulty with that submission.   It seems to me that the effect  of entering only a discharge to  the Fisheries Act  charge  is to  impose no  effective penalty  at  all.     Rather  I  am  attracted  to  Ms  Johnston’s  submission  that  the appropriate course is to leave the fine intact in the expectation that the appellant will be in a strong position, following his release from imprisonment, to apply pursuant to s88 of the Summary Proceedings Act, for the fine to be remitted and community

work substituted.   For what it is worth I certain subscribe to that approach and commend it to Mr Anderson’s attention.

[7]      The appeal against sentence is, however, dismissed.

Solicitors:

Tony Garrett Barrister, Christchurch for Appellant
Raymond Donnelly & Co, Christchurch for Respondent