ROBINSON v MINISTRY OF JUSTICE COLLECTIONS [2013] NZHC 3148

ROBINSON v MINISTRY OF JUSTICE COLLECTIONS [2013] NZHC 3148 [28 November 2013]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYCIV-2013-412-000027[2013] NZHC 3148BETWEEN STEVEN GRANT ROBINSONAppellantAND MINISTRY OF JUSTICECOLLECTIONSRespondentHearing: 21 November 2013Appearances: Appellant Appears In PersonR D Smith for RespondentJudgment: 28 November 2013JUDGMENT OF D GENDALL J[1] This is an appeal against a decision of the District Court at Dunedin given by His Honour Judge MacAskill on 26 September 2013. That decision related to unpaid fines of the appellant totalling $10,999.30 which incorporated $9884.30 in reparations and $500 in enforcement fees.[2] The appellant had apparently been paying off that sum from his benefit at the rate of $45.00 per week but requested that amount be reduced to $25.00 per week. The registrar effectively agreed to that course of action. A report was however submitted to the District Court Judge as the arrangement would have meant that the time taken to pay off the total debt would exceed that allowed by ss 86 and 86A Summary Proceedings Act 1957, namely 60 months.[3] At the District Court hearing an appearance on behalf of the Ministry of Justice Collections department indicated no opposition to the Court remitting outstanding fines and enforcement fees which totalled $1115.00 without further penalty. His Honour Judge MacAskill in the District Court however did not considerit appropriate to remit fines and enforcement fees without an alternate penalty. He indicated to the appellant an intention to impose the minimum term of 40 hours community work in lieu of the fines and enforcement fees.[4] In the District Court the appellant advised that he was not agreeable to that course, claiming medical reasons for not doing community work. The Judge however was at that time advised by the probation officer in court that the appellant was completing a sentence of community work and had last reported a fortnight before the hearing. Indeed the appellant himself confirmed he had 30 hours remaining on that existing sentence.[5] The District Court Judge then imposed a cumulative sentence of 40 hours community work in lieu of the outstanding fines and enforcement fees and recorded a warning that if the sentence was not complied with a sentence of imprisonment would follow.[6] The power to impose a sentence of community work in lieu of fines is provided for in s 88AE Summary Proceedings Act 1957. Sections 55 to 80 of the Sentencing Act 2002 concern the imposition of community work, community detention, offences related to community based sentences, review and cancellation of community based sentences and miscellaneous provisions.[7] Section 106E Summary Proceedings Act 1957 imposes restrictions on substituted sentences and for present purposes confirms a Judge may sentence a defendant to community work for non-payment of one or more fines, provided:(a) An assessment of the defendant's financial capacity has been recentlycompleted;(b) The Judge has considered the assessment; and(c) The Judge is satisfied that all other methods of enforcing the fine or fines have been considered or tried and that they are inappropriate or have been unsuccessful.[8] As to the right of appeal here, s 89 Summary Proceedings Act 1957 confirms that any person sentenced by a District Court Judge to community work under s 88AE of the Summary Proceedings Act 1957 has a right of appeal under s 244 Criminal Procedure Act 2011 as if the defendant had been convicted of an offence.[9] Section 244 Criminal Procedure Act 2011 confirms a right of appeal, in this case to the High Court.[10] In the District Court in the present case the Judge was provided with theregistrar's report prepared in accordance with the Summary Proceedings Act 1957 together with an attached means assessment and heard from a representative of the Ministry of Justice. The rate at which the appellant had been assessed as being able to pay his fines, namely $25.00 per week would clearly mean that payment of the total reparations would take in excess of eight years. It was proper therefore that this matter was required to go before the District Court Judge for consideration.[11] As I see the position, the Judge's decision to remit outstanding fines andenforcement fees was an understandable one given the period over which the sum would be paid off if left to stand. Further, I am satisfied the District Court Judge was justified in principle here in substituting a sentence of community work for remission of what was in excess of $1000 in fines and enforcement fees. The sentence substituted of 40 hours community work was effectively the first rung on the sentencing ladder and the minimum allowable by law. It would seem therefore that it was within the available range in terms of length.[12] On the information before the Judge at the time, and indeed on the advice provided to him by the probation service, it seems also that there was no impediment to the appellant completing community work although with certain leniency which, as I understand, has been extended by the probation service.[13] Before me on this appeal the appellant indicated that certain medical circumstances (including the requirement that he use a catheter and required sterile and proper toileting services) meant that he was unable to undertake a sentence of community work.[14] Thus it seems that the basis for the appellant's current appeal is his contentionthat he is unfit to complete community work. In my view that is a matter which if at all should be addressed by an application to cancel or vary the sentence filed in the District Court. This would need to consider all the circumstances involved including the earlier sentence of community work that this sentence was imposed cumulatively upon.[15] As I see it the District Court Judge here had exercised a discretion when remitting the fines in question to substitute the alternative community work penalty and was entitled to do so. The exercise of this discretion is not a matter typically interfered with on appeal.[16] For all these reasons the appeal by the appellant here is dismissed....................................................D Gendall JSolicitors:Wilkinson Adams, DunedinCopy to Appellant