COLE v REGISTRAR OF COLLECTIONS UNIT DUNEDIN [2022] NZHC 979

COLE v REGISTRAR OF COLLECTIONS UNIT DUNEDIN [2022] NZHC 979 [9 May 2022]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2022-412-07[2022] NZHC 979BETWEEN JACOB TAFIA WARREN WAYNI COLEAppellantAND REGISTRAR OF COLLECTIONS UNITDUNEDINRespondentHearing: 9 May 2022Appearances: S M Turner for AppellantR P Bates for RespondentJudgment: 9 May 2022JUDGMENT OF MANDER J[1] Mr Jacob Cole was convicted and sentenced by Judge Rollo in the DunedinDistrict Court to six months' supervision, 65 hours' community work and ordered topay $3,562 in reparation on a charge of accessing a computer system for a dishonestpurpose.1 Mr Cole had $5,250.20 in outstanding fines and a request was made to havethose fines remitted and substituted with community work. As a result, 300 hours'additional community work was imposed. Mr Cole appeals that order on the basis theamount of community work is manifestly excessive.2[2] Details of the outstanding fines were set out in a registrar's report. They largelyrelate to infringement fees accumulated since 2015 for breaches of motor vehicle andtraffic rules.3 It was noted Mr Cole had paid $25,028.20 in fines over the last 11 years.1 Crimes Act 1961, s 249(1)(a) – maximum penalty of seven years' imprisonment.2 Summary Proceedings Act 1957, s 89(2) and Criminal Procedure Act 2011, s 244.3 The infringement offences included no warrant of fitness (x5), parked on a footpath (x1), exceeded50 kph (x5), displayed an expired parking receipt (x4), parked over the time limit (x3), operateThe Judge calculated the imposition of 300 hours' community work for $5,250.20 infines amounted to approximately $17.50 an hour (net of tax) in Mr Cole's time.The appeal[3] On behalf of Mr Cole, Mr Turner submitted the amount of community workwas manifestly excessive and breached a number of sentencing principles, namely theneed to impose the least restrictive sentence as required by s 106E(4) of the SummaryProceedings Act, and the totality principle.4 It was said to have also been imposedwithout regard to the hierarchy of sentences.5 Reference was made to a decision ofthis Court in which Randerson J identified relevant considerations that were to betaken into account in exercising the Court's discretion to remit fines:6Relevant considerations would include the amount of the fines, the crimes forwhich they were imposed, the length of time over which they wereaccumulated, the reasons for non-payment, the extent to which the offenderhas paid or has attempted to pay, the financial and other circumstances of theoffender and the likelihood or otherwise of the balance of fines being paid(where remission of part of the fines is to be considered).[4] Mr Turner emphasised the outstanding fines related to infringement fees, ratherthan substantive criminal offending, and were being serviced by way of an attachmentorder on Mr Cole's benefit. Mr Cole has limited financial means. He is currentlyunemployed and has limited assets. It was noted he has shared custody of his daughterwho he must support. Mr Turner argued the purpose for remitting the fines was toprovide him with a "clean slate", in order to allow him to make reparation for hiscurrent offending without the burden of the existing fines.[5] In support of his argument that the amount of community work imposed failedto take into account the hierarchy of sentences and the need to impose the leastrestrictive sentence, Mr Turner emphasised that community work impinges onMr Cole's liberty,7 and that insufficient regard had been taken of it being a moreunlicensed vehicle (x5), parked in prohibited area (x3), drive or use vehicle with exemption (x2),operate vehicle without WOF (x1).4 Sentencing Act 2002, s 85.5 Section 10A.6 Davis v Registrar of the Collections Unit at Dunedin HC Christchurch CRI-2005-412-13, 3 May2005, at [9].7 Citing May v Department for Courts HC Auckland A26-02, 28 June 2002.restrictive sentence than the original fines. Mr Turner submitted the combination of65 hours' community work for the substantive offence and the 300 hours to remitoutstanding fines cumulatively resulted in a sentence that was disproportionately long.Counsel argued the Judge had failed to step back to consider the overall effect of thesentence, given it was only 35 hours short of the maximum amount of communitywork that can lawfully be imposed.8Analysis[6] Mr Turner submitted that Mr Cole had made significant efforts to meet hisobligations, having over some 11 years paid $25,028.20, which ought to have beentaken into account when setting the amount of community work for the remainingbalance. However, Mr Power, who appeared on behalf of the Registrar, arguedMr Cole's fines record may be viewed as an aggravating factor. He noted Mr Colehad amounts that were outstanding from 2015 (over five years ago) and that duringthe latter period he had regularly failed to comply with various regulatory obligationsand to pay the resulting fines. In response, Mr Turner noted that Mr Cole'saccumulation of fines had markedly slowed in recent years, with only oneinfringement offence in 2020 and one in 2021. He argued this exhibited an increasedmaturity on Mr Cole's part which had not been recognised in the remission decision.In that regard, it was emphasised Mr Cole, prior to the offending for which he was forsentence, had not offended since 2010 and that his efforts in that regard were notreflected in the amount of hours of community work imposed.[7] Both counsel referenced the hourly rate calculated by the Judge. Mr Turnersubmitted the level of community work imposed was inconsistent with the currentminimum wage rate of $21.20 per hour and was effectively punishing Mr Cole forbeing unemployed. This was based on an argument that, had he the advantage of aminimum wage job, clearance of his fines by labour would have occurred in less timethan the length of community work imposed. However, Mr Power points out that iftax is added to the apparent hourly rate of $17.50, as calculated by the District CourtJudge, a rate approximate to the minimum wage is actually achieved. Mr Poweracknowledges that if this rate of $21.20 is applied to the outstanding fines balance it8 Sentencing Act, s 55(2).would equate to approximately 250 hours. He suggested that may amount to a faireramount of community work.[8] A number of cases assist in providing some gauge as to the amount ofcommunity work that should be imposed when remitting fines, although, as is apparentfrom Davis,9 that exercise is a matter of discretion for the sentencing court and no setformula can be adopted. In Hill v Christchurch Collections Unit 250 hours'community work was imposed for outstanding fines and enforcement fees that totalled$7,662.18.10 As in this case, the outstanding fines related to matters such as failing toproduce a driver licence, failing to comply with traffic signals, operating an unlicensedmotor vehicle and operating a vehicle without a warrant of fitness. This Court foundthe level of community work imposed to be well within the available range.[9] In Austin v Christchurch Collections Unit, the appellant had been incurringfines and reparation orders for a lengthy period and had been making regularpayments. A number of cases were referenced in upholding the 250 hours' ofcommunity work imposed when remitting outstanding fines of $7,521.26:11(a) Robinson v Ministry of Justice, Collections, 40 hours' communitywork was upheld on appeal in respect of $1,115 in unpaid fines;12(b) Gerrard v Ministry of Justice, Collections, 100 hours' communitywork was upheld on appeal as a substitute for $2,730 in unpaid fines;13Quoting from the judgment:(c) of more relevance, in Slattery Cookson v Christchurch CollectionsUnit, which was in fact a decision that also involved Mr Austin, 240hours' community work in lieu of $3,222 in unpaid fines was upheldby the Court of Appeal as a "stern, but not excessive" substitution ofcommunity work;14 and(d) Davis v Registrar of Collections Unit at Dunedin, 300 hours'community work was substituted on appeal for 400 hours when$4,000 of fines was remitted.159 Davis v Registrar of the Collections Unit at Dunedin, above n 6.10 Hill v Christchurch Collections Unit [2015] NZHC 368.11 Austin v Christchurch Collections Unit [2014] NZHC 2514, [2015] NZAR 101 at [21].12 Robinson v Ministry of Justice, Collections [2013] NZHC 3148.13 Gerrard v Ministry of Justice, Collections HC Hamilton CRI-2009-419-77, 9 December 2010.14 Slattery-Cookson v Christchurch Collections Unit HC Christchurch CRI-2008-409-71, 6 June2008.15 Davis v Registrar of Collections Unit at Dunedin, above n 6.Decision[10] The authorities indicate there is a significant range in the amount of communitywork that can be imposed for the purpose of remitting fines and there is no set scale.This likely reflects that such an exercise involves the exercise of the court's discretionwhich, in turn, is likely to be dependent on the particular circumstances of theindividual concerned. Here, the value of the outstanding fines was fairly moderate.They were imposed for matters relating to Mr Cole's legal obligations in relation tohis vehicle and the way he operated it, and were accumulated over a number of years.There is a paucity of information about Mr Cole's financial circumstances. However,he has regularly been paying the outstanding amount of fines by instalment, althoughthat is no doubt the result of a deduction being made from his benefit at source.[11] Overall, I am inclined to accept Mr Power's suggestion that an adjustmentshould be made that effectively brings the hourly rate up to that of the minimum wagewhen tax is taken into account ($21.20 per hour). In doing so, I am mindful that theoutstanding monies relate to the non-payment of infringement fees, rather than fromfines imposed for substantive criminal offending, and that when combined with thesentence of 65 hours' community work for his current offending, Mr Cole will stillhave to complete over 300 hours' community work.Result[12] The appeal is allowed. The fines of $5,250.20 are remitted but the order thatMr Cole serve 300 hours community work is quashed. In its place I make an orderthat he serve 250 hours community work.Solicitors:Crown Solicitor, Dunedin