The Queen v Wright

[2006] NZCA 156

IN THE COURT OF APPEAL OF NEW ZEALAND

CA45/06
CA46/06

THE QUEEN

v

MATTHEW BRUCE WRIGHT

Hearing:27 June 2006

Court:Glazebrook, John Hansen and Potter JJ

Counsel:J P Takas for Appellant

A Markham and M Inwood for Crown

Judgment:6 July 2006 

JUDGMENT OF THE COURT

A         THE APPEAL IS DISMISSED.

B         APPLICATION FOR SPECIAL LEAVE TO APPEAL IS REFUSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by John Hansen J)

[1]        On 15 September 2005, in the Dunedin District Court, Judge O’Driscoll sentenced the appellant to 12 months imprisonment for non-payment of fines totalling $95,184.34.  The sentence imposed was comprised of four cumulative sentences, each of three months imprisonment, which is the maximum prescribed by s 90(b) of the Summary Proceedings Act 1957 (the Act).

[2]        Pursuant to leave granted by the High Court under s 144(1) of the Act the issue is:

… whether s90 restricts the sentence of imprisonment to three months regardless of the number or amounts of the fines involved?

[3]        Special leave to appeal is sought on the following questions:

(a)Was the learned District Court Judge entitled to depart from a sentencing indication of three months prison?

(b)Did the District Court Judge use a principled approach to sentencing?

(c)Was the sentence manifestly excessive?

[4]        In the course of the hearing Mr Takas sought to obtain special leave on one further question.  That is whether procedural unfairness in the hearing in front of Judge O’Driscoll had the effect of reversing the onus in the High Court, requiring the sentence to be quashed.

Background

[5]        The appellant was before the Court on 18 July 2005 charged with eight breaches of community work.  Counsel for the appellant then asked Judge O’Driscoll whether he was prepared to give a sentencing indication encompassing not only the breaches of outstanding community work but also outstanding fines.  The intention was to give the appellant a clean slate.  At that stage fines outstanding were approximately $95,000.  At an earlier stage they had been in excess of $200,000 but some had been remitted.

[6]        The Judge indicated he would be prepared to impose a sentence of three months imprisonment for the breach of community work and a cumulative sentence of three months imprisonment for the non-payment of fines making a total of six months imprisonment.  Mr Takas indicated to the Judge the appellant was not prepared to proceed on the basis of that indication. 

[7]        Judge O’Driscoll’s response was:

Well I do it once and I will not do it again.

Later in the exchange the Judge said:

Well I’m happy to stand it down.  I’m just giving you a one off opportunity and all I’m saying is … I’m happy to give the sentence indication which I have now.  Another Judge may think that more than three months imprisonment is warranted for 95 or 90 odd thousand. 

[8]        The Judge indicated he would be in Dunedin until the following day and it was “up to the appellant”.  Following further discussion the appellant pleaded not guilty and the matter was adjourned at the request of counsel to 5 September for a fixture. However, on that date the appellant pleaded guilty to five charges of breach of community work and the remaining three charges were withdrawn.

[9]        By the time the appellant came before the Court on 13 September for sentence on the breach of community work he faced two further charges, one of burglary and one of domestic violence.  He entered pleas of not guilty to each of those charges and was remanded for a status hearing.

[10]     Pursuant to s 88(1)(c) of the Act a Registrar’s report and supporting affidavit relating to the unpaid fines were placed before the Court.  According to the affidavit the situation was:

Current balance as at 9 September 2005  $  95,184.34

Amount of fines paid by the Respondent  $    4,680.00
Fines remitted following completion of alternative
sentences (be they periodic detention, community
work or imprisonment)  $122,915.50
Fines remitted by Judges other than in relation to

alternative sentences  $  22,603.00

TOTAL fines incurred, including enforcement fees               $245,346.84                __________

[11]     Mr Robinson on behalf of the Collections Unit submitted that a sentence of six to nine months for the unpaid fines might be appropriate.  The Judge however indicated he was only prepared to deal with the breaches of community work that day and he would defer the fines issue until 15 September.  That was because the Judge needed to ensure that when the unpaid fine issue was determined the appellant was already undergoing a sentence of detention in terms of s 106E(7) of the Act.

[12]     Mr Takas then raised the issue of the sentencing indication given by the Judge on 18 July.  The following exchange took place:

Mr Takas, is it said that the sentencing now is under the indication that I gave earlier? ….. Yes I should think so.

Well he didn’t plead guilty on the day did he? ….. No.  I don’t recall it was a specific condition but if Your Honour is stepping back from that, then.

Well again? ….. And is making it clear, then that’s life.

[13]     The discussions continued and in response to the Judge’s question whether Mr Takas was saying he was bound by the indication Mr Takas said that if the Judge had qualified it as being good on the day then the Judge would not be bound by it.  In the course of these discussions Mr Takas said:

…..  I’ve already said that I don’t think the Court is bound …..,

Your Honour has made it perfectly clear that the Court does not consider itself bound …..,

Now I do accept that when Your Honour gave the sentencing indication, it was clear that it was for that day.

And:

….. I do accept that Mr Wright did not accept it on that day.

[14]     The Judge then proceeded to sentence the appellant on the five charges of breaching community work to sentences totalling ten weeks imprisonment.

[15]     On 15 September the Judge heard full submissions from Mr Robinson and Mr Takas on the issue of outstanding fines and the interpretation of s 90 of the Act.

[16]     The Judge accepted there were two possible interpretations.  Either the section imposed a maximum term of imprisonment of three months for all outstanding fines or a sentence of up to three months imprisonment could be imposed in relation to each outstanding fine.  He referred to two District Court decisions R v Hunt DC PMN PPN1510327175 20 July 2004 in which Judge Ross favoured the first interpretation and Community Probation Services v McCarthy DC DUN CRNs 4005006618, 6619, 5005500077 6 September 2005 in which Judge MacAskill expressed the obiter view favouring the latter interpretation.

[17]     In the event Judge O’Driscoll favoured the latter interpretation and imposed a cumulative sentence of three months imprisonment for unpaid fines in each of the years 2002, 2003, 2004 and 2005.  The total outstanding fines of $95,184.34 were remitted.

[18]     The appellant appealed.  The matter was heard by Chisholm J who was referred to the decision of Emery v Police HC AK AP134/91 24 June 2001 which had not been cited to Judge O’Driscoll by counsel.  In that case Doogue J proceeded on the basis of a Crown concession that the maximum penalty that could be imposed was three months in relation to all the offences in respect of which the appellant had been fined.  After referring to s 90 Chisholm J concluded:

[19] …  Like Judge O’Driscoll I have reached the conclusion that s90 does not restrict the sentence of imprisonment to a maximum of three months regardless of the number of amounts of the fines remaining unpaid.  On a plain reading of the section the period of three months under (b) applies to the “non payment of any fine”.  That interpretation is reinforced by the later reference to “the fine” and the reference in paragraph (a) to the maximum term of imprisonment for “an offence”.  To my mind the proposition advanced by Mr Takas would distort the plain words used in the section.  No doubt Parliament recognised that substantial individual fines might remain unpaid under circumstances where a sentence of up to three months imprisonment for individual fines could be justified.

[20]     As mentioned earlier, a contrary conclusion was reached by Judge Ross in R v Hunt.  He was concerned that the wider interpretation that I have adopted could lead to the offender being brought back to Court a number of times to deal with unpaid fines and that this might lead to “an unlimited maximum term of imprisonment depending on how much or how little of the fines are remitted on each successive occasion”.  Given the overriding requirement for the sentence to “satisfy the justice of the case” I do not think the concern raised by Judge Ross is a realistic possibility.  Another reason given by the Judge was that if the three month maximum was insufficient it was a matter to be dealt with by Parliament.  On my interpretation the legislation is clear and that issue does not arise.

[21]     It should also be mentioned that in this case there are a huge number of relatively small fines and it would be absurd to think that individual fines might attract a sentence of imprisonment.  Judge MacAskill suggested in Community Probation Services v McCarthy that in that type of situation a Court might find it convenient to group fines.  Judge O’Driscoll adopted that approach by grouping the fines for each year.  In all the circumstances that was a sensible approach.

[22]     The first ground of appeal fails.

Submissions

[19]     Mr Takas, in reliance on Bennion Statutory Intepretation (2ed, 1992) at 571 submitted that an appellant should only be penalised under clear law and the importance of observing this principle was increased as the detriment increased.  He submitted that as s 90 elevated the penalty for non-imprisonable matters to imprisonment, this underlined the importance of legislative clarity if up to three months imprisonment was to apply to each fine, no matter how minor the original offence.

[20]     He also submitted that the policy reasons enunciated by Judge Ross in Hunt supported such a strict interpretation.  The policy reason enunciated by Judge Ross was the possibility that a person who refused to pay fines could be brought back before the court time after time until all outstanding fines were dealt with. 

[21]     The Crown submitted that a purposive approach to the interpretation of s 90 was required.  Ms Markham submitted that Chisholm J’s interpretation of the section was correct.  She further submitted that Part 3 of the Act amounted to a sub-code for the enforcement of fines and supported a purposive interpretation.  Further support for the interpretation can be found in the definition of “Fine” in s 79.

Discussion

[22]     In interpreting s 90 it is necessary to concentrate on the purpose of the statutory provision: R v Karpavicius [2004] 1 NZLR 156 at [15].

Section 90 reads:

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.

[23]     In our view 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.

[24]     The period of three months imprisonment under s 90(b) applies to the non‑payment of “any fine”.

[25]     “Fine” is defined in s 79 as including:

(a)Any sum of money adjudged or ordered to be paid by a conviction or order, whether described as a fine, or as costs, expenses, fees or otherwise:

(b)Any prescribed costs, expenses, or fees payable in respect of the enforcement of any fine as defined in paragraph (a) of this definition.

(emphasis added)

[26]     We do not consider that the legislature intended a different definition for the word “fine” in s 90 from that specifically provided for in s 79.  “Fine” in s 90 refers to any sum of money adjudged or ordered to be paid by a conviction or order.

[27]     Such an interpretation is reinforced by the later reference to the “fine” in s 90 and the reference in (a) to the maximum term of imprisonment for “an offence”.

[28]     When the section is read as a whole the alternative maximum penalties prescribed under s 90(a) and (b) are determined by the particular offence for which the fine being considered was imposed.  Subsection (a) relates to the maximum penalty for non-payment of a fine imposed in respect of “an offence that was punishable by imprisonment”.  The provision in subs (b) for a maximum penalty “in any other case” in our view covers the residual category of a fine imposed for an offence or infringement which was not punishable by imprisonment.  But in doing so it is still a reference to “an offence” that is found in (a).

[29]     We agree with the Crown’s submission that Part 3 operates as a self‑contained code in relation to fines.  A review of Part 3 makes it plain that it refers to individual fines rather than all fines for which the defaulter is liable.  For example s 88(3)(f) talks of enforcement action may be taken or imprisonment imposed in respect of “a lesser amount than the fine due”.  Section  88(3)(fa) provides for a situation where an offender “has other fines due as well as the fine that is being considered by the District Court Judge under this section”.  Every fine is payable within 28 days after the date it was imposed and the enforcement procedures of s 87 apply where there is default in the payment of “any fine”.  Sections 87(2), 91, 92 and 100 provide for each enforcement procedure to cease on payment of “the unpaid amount of the fine”.

[30]     In our view the definition of fine, the general provisions of Part 3 and the specific wording of s 90 all lead to the conclusion that the three months maximum in s 90(b) is for each fine remaining unpaid.

[31]     In Emery it is apparent that Doogue J accepted a concession made by counsel for the respondent and was not required to embark upon any analysis of s 90.

[32]     The concerns expressed by Judge Ross and Mr Takas’s general submission of unfairness are ill-founded.  The term of imprisonment imposed under s 90 must be a period that “will satisfy the justice of the case”.  In those words lies the protection from any abuse. 

[33]     Furthermore, we think it would be ludicrous to interpret the section so that a person who was a fines defaulter for one fine of $500 faced exactly the same maximum sentence as a person in the position of the appellant who has a large number of unpaid fines totalling, at the time of sentencing, some $95,000.

[34]     Whilst s 13 of the Sentencing Act 2002 places a presumptive emphasis on fines as an appropriate sentence, Part 3 of the Act provides for a hierarchy of enforcement procedures culminating in imprisonment as a sentence of last resort and available only in limited circumstances.  It is a necessary part of the Court’s response to dealing with persistent defaulters.  An interpretation that would permit offenders to incur substantial fines safe in the knowledge they could not be imprisoned for any greater period than three months would defeat this clear purpose.

[35]     We are satisfied that the interpretation of Chisholm J was correct and the appeal is dismissed.

[36]     Three matters are raised in the application for special leave to appeal.  A rather undeveloped fourth ground of procedural unfairness was developed in the course of submissions in front of us.  It is apparent this latter ground was never raised in front of Chisholm J.  It took the form of arguing that if Judge O’Driscoll had imposed a sentence of three months imprisonment, as he was required to do by Emery, any appeal would have been a Crown appeal and the onus would have been on the Crown to show that a sentence of three months was inadequate.  Mr Takas seemed to think in these circumstances, although it was strictly a matter of statutory interpretation, the appellant bore some onus in front of Chisholm J.  In matters of statutory interpretation there is no such onus. 

[37]     In R v Slater [1997] 1 NZLR 211 this Court stated at 215:

Section 144 was not intended to provide a second tier of appeal from decisions of the District Court in proceedings under the Summary Proceedings Act.  Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified … are met and leave to appeal is granted.  Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance are to be diluted.

[38]     This Court further held in Waitakere CC v Hertzke [1997] NZRMA 222 that only in rare cases will a sentencing matter raise a question of law of such importance as to justify a further appeal to this Court.

[39]     Given the conflicting High Court decisions, Chisholm J was right to grant leave in relation to the interpretation of s 90.  It is disputable that questions (a) to (c) in [3] constitute questions of law.  The same applies to the procedural issue raised in submissions.  In any event, none raise questions of general or public importance. 

[40]     Justice Chisholm was right to decline leave in relation to them and the application for special leave is dismissed.

Solicitors:
Crown Law Office, Wellington