PROCTOR v POLICE [2018] NZHC 763

PROCTOR v POLICE [2018] NZHC 763 [20 April 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-045[2018] NZHC 763BETWEEN TUI MARLEY PROCTORAppellantAND NEW ZEALAND POLICERespondentHearing: 17 April 2018Appearances: K Stretton & G H Vear for AppellantA L McConachy for RespondentJudgment: 20 April 2018JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 20 April 2018 at 4.15pm.pursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, AucklandIntroduction[1] Mr Tui Proctor pleaded guilty to one charge of burglary and one charge ofreceiving property valued over $1,000. He was sentenced to two years and 11 months'imprisonment and ordered to pay $300 reparation. Mr Proctor now appeals hissentence, arguing the sentence imposed was manifestly excessive and that an endsentence in the range of two years and two months would have been more appropriate.The offending.[2] The charge of receiving stolen property arose from events on 1 April 2017,when jewellery valued at approximately $5,000 was stolen from the victim's home.That same afternoon, Mr Proctor sold the jewellery to a second-hand dealer for $1,160.He claimed to have purchased the jewellery from an associate for several hundreddollars, but pleaded guilty on the basis that he was reckless as to whether it had beenstolen. The jewellery was recovered.[3] The burglary occurred on 26 April 2017, and involved Mr Proctor entering theresidence of a 67-year-old woman. At some time during the day, while the victim wasoutside in the garden of her property, Mr Proctor entered the house and took a laptopcomputer, iPad and a handbag containing the victim's personal belongings. A sampleof his blood was later found in the home. On 12 May, Mr Proctor was located and thevictim's driver's licence was found in his possession. His initial explanation was thatit had been found in a park. Mr Proctor later pleaded guilty to this offending.[4] The victim impact statements record that both victims are now fearful in theirown homes, and have had to pay an insurance excess of $200 and $300 respectively.Mr Proctor's personal circumstances[5] Mr Proctor is 31 years old. He has an extensive criminal history whichincludes convictions for driving-related offences, drug-related offences, breaches ofcourt-imposed conditions, and numerous dishonesty-related offences. Relevantly, hehas seven prior convictions for receiving stolen property and 13 for burglary.[6] The pre-sentence report describes Mr Proctor as a regular user ofmethamphetamine. Mr Proctor informed the report writer that his offending ismotivated by a need to fund his drug addiction. He is assessed as presenting a highrisk of reoffending.District Court sentencing decision[7] Judge Ronayne sentenced Mr Proctor on 23 January 2018.1 A starting point of20 months' imprisonment was adopted for the burglary charge. That starting pointreflected the fact that the burglary was of a dwelling house by day, which the Judgeconsidered was a "very serious aggravating feature".2 He noted too that the burglaryappeared to have been for the purposes of feeding Mr Proctor's methamphetaminehabit.[8] Counsel for the police and Mr Proctor agreed that an uplift of six months waswarranted for prior convictions. However, the Judge considered a greater uplift wasnecessary. He noted that Mr Proctor had a significant history in the Youth Court andsince 2006 had committed 13 burglaries, most recently resulting in a sentence of twoyears and eight months' imprisonment in 2013. The Judge also noted Mr Proctor'sother convictions for receiving and dishonesty offending including fraud. A nine-month uplift was imposed.[9] In relation to the receiving charge, the Judge considered the appropriatestarting point was one year and three months' imprisonment. That was in line with thesentence Mr Proctor received when he was last sentenced for receiving. No uplift wasapplied to the receiving charge, to prevent double counting.[10] No reduction in sentence was given for time spent on remand or personalmitigating factors. Counsel for Mr Proctor invited the Judge to reduce the sentencefor time spent in custody in relation to other matters, however Judge Ronayneconsidered Mr Proctor was not entitled to any reduction on that account. Though MrProctor had written a letter of apology, the Judge attached little weight to it. He noted1 Police v Proctor [2018] NZDC 1186.2 At [8].the views of the author of the pre-sentence report that Mr Proctor's motivation forchange appeared to be low. Mr Proctor owed around $3,000 in unpaid reparation,fines, enforcement fees and costs outstanding and it appeared that payments hadceased.[11] Judge Ronayne reduced the notional sentences on each charge by 20 per centto recognise Mr Proctor's guilty pleas. That reduced the burglary sentence to 23months' imprisonment and the receiving charge to 12 months. The sentences wereimposed cumulatively. An order for reparation of $300 was made on the burglarycharge, which corresponded to the excess the victim had to pay on her insurance. TheJudge said there was no justification for a reduction of the cumulative total to reflecttotality, as he considered the cumulative total sentence reflected Mr Proctor'sculpability and risk to the community. A final sentence of two years and 11 months'imprisonment was therefore imposed.Submissions on appeal[12] Mr Proctor now appeals his sentence on the grounds the Judge:(a) adopted starting points for each offence that were too high;(b) imposed cumulative sentences where concurrent sentences should havebeen imposed;(c) failed to give an adjustment for totality where one was required; and(d) failed to apply a discount for remorse and rehabilitative prospects andattempts.[13] Ms Stretton for Mr Proctor argues that an 18-month starting point should havebeen adopted for the lead offence of burglary. She does not challenge the Judge'suplift of nine months to reflect the appellant's previous burglary convictions. Shesubmits that the Judge ought to have adopted a concurrent approach to the sentencing,and on that approach and taking into account the principle of totality, an uplift of ninemonths for the receiving charge would have been appropriate. Ms Stretton alsosubmits the Judge failed to recognise the genuine merit of Mr Proctor's efforts torehabilitate, and his expression of remorse. She submits that a reduction of 10 per centwould have been appropriate recognition, especially in light of the fact Mr Proctor hassince his sentencing been offered a place in a rehabilitative programme.[14] Ms McConachy for the respondent supports the sentence imposed by theJudge, and submits the starting points both fell within the available and appropriaterange for the offending. She notes that the appellant was on bail at the time ofoffending, and submits there was no basis on which the Court could have given adiscount for rehabilitative efforts, as there was no evidence to justify that approach.On the issue of remorse, she submits that the Judge considered all the availableinformation, including the pre-sentence report, before concluding that a discount wasnot warranted. As the offending involved in each charge was distinct, the Crownsubmits that it was open to the Judge to adopt a cumulative sentencing approach.Approach on appeal[15] This Court will not lightly intervene in a sentence imposed by the DistrictCourt.3 But the Court must allow Mr Proctor's appeal if it is satisfied that, for anyreason, there is an error in the sentence imposed by the District Court and if it issatisfied a different sentence should be imposed.4 In any other case, the appeal mustbe dismissed.5[16] The approach to be taken to an appeal brought under s 250(2) of the CriminalProcedure Act 2011 was addressed by the Court of Appeal in Tutakangahau v R.6 TheCourt said:[30] The practical effect of preserving the approach applied to date is that theappellate court does not just start afresh nor simply substitute its own opinionfor that of the original sentencer. Rather, in the words of Shipton, it must beshown that there was an error "whether intrinsically, or as a result of additionalmaterial submitted" on appeal. If there is an error of the requisite character,the Court will then form its own view of the appropriate sentence.(footnotes omitted)3 Te Aho v R [2013] NZCA 47 at [30].4 Criminal Procedure Act 2011, s 250(2).5 Criminal Procedure Act, s 250(3).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.[17] Where an error or errors are found to have occurred, the court's assessment oftheir significance will inform its decision as to whether a different sentence should beimposed. The Court of Appeal noted that although s 250(2) makes no expressreference to a "manifestly excessive" sentence, this concept remains engrained in thecourts' approach to sentence appeals.7Cumulative or concurrent sentences?[18] Section 84 of the Sentencing Act 2002 provides guidance on the use ofconcurrent and cumulative sentences. Cumulative sentences of imprisonment aregenerally appropriate if the offences for which an offender is being sentenced aredifferent in kind, whether or not they are a connected series of offences.8 Concurrentsentences of imprisonment are generally appropriate if the offences are of a similarkind and are a connected series of offences.9 In determining whether two or moreoffences form a connected series of offences, the court may consider:10(a) the time at which they occurred; or(b) the overall nature of the offending; or(c) any other relationship between the offences that the court considersrelevant.[19] Ms Stretton relies on two cases in which concurrent sentences were imposed.In Blissett v Police, the defendant pleaded guilty to charges of burglary, receiving andpossession of a glass methamphetamine pipe.11 Duffy J held that all the offences weresufficiently connected such as to make concurrent sentences appropriate. Sheobserved:12The totality of the offending appears to be a spree that was embarked on tofund Mr Blissett's methamphetamine addiction.7 At [33] and [35].8 Section 84(1).9 Section 84(2).10 Section 84(3).11 Blissett v Police [2013] NZHC 156.12 At [47].[20] In R v Birkinshaw, the defendant pleaded guilty to multiple drug-relatedcharges and one charge of receiving property.13 The events giving rise to the chargestook place over a period of seven months. Collins J decided to sentence on aconcurrent basis without discussing the alternative.[21] I do not derive much assistance from these cases, given that each turns on itsown facts. In the present case, while the offending which led to the receiving andburglary charges was broadly similar in that residences were burgled and readilysaleable items were taken in both cases, there was an interval of 25 days between them.Consequently the offending was sufficiently disconnected in time not to benecessasrily considered as representing a continuing spree of offending. Moreover,although both offences appear to have been committed by Mr Proctor in order to fundhis methamphetamine addiction, I do not consider that his motivation for the offendingitself provides a compelling basis for treating them as a connected series of offences.While there is scope for taking a different view on this point and for the adoption of aconcurrent sentencing approach, I am not satisfied that the Judge erred in adopting acumulative approach.14 However, having adopted a cumulative approach, he wasrequired to consider and apply the totality principle: cumulative sentences ofimprisonment must not result in a total period of imprisonment wholly out ofproportion to the gravity of the overall offending.15 I will discuss the totality principlefurther below.Were the starting points too high?Burglary[22] Burglary carries a maximum sentence of 10 years' imprisonment.16 There isno tariff or guideline judgment for burglary, as the range of circumstances in whichthe offence may be committed varies widely.17 However, a distinction is generally13 R v Birkinshaw [2016] NZHC 2257.14 Note Gendall J's comments in French v Police [2015] NZHC 2635 at [27], where his Honouracknowledged that there were two ways in which this offending could be approached(cumulatively or concurrently) and in his view "either approach [was] appropriate and likelyto end up with a similar result".15 Sentencing Act 2002, s 85(2).16 Crimes Act 1961, s 231(1).17 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].drawn between burglaries of residential and commercial premises. In Arahanga v R,the Court of Appeal made this observation about burglaries of dwelling houses:18Burglary of a domestic residence is a significant aggravating feature atsentencing due to the heightened risk of confrontation with the occupants.Dwelling house burglaries at the relatively minor end of the scale tend toattract a starting point of approximately 18 months' to two years and sixmonths' imprisonment.[23] The Court in Arahanga recognised similar aggravating factors as had beenlisted in Senior v Police.19 In Senior, the Court considered the following factors to beaggravating:20(a) behaviour involving actual danger to or confrontation with occupiers,or the risk of such danger or confrontation;(b) behaviour likely to make the victim feel targeted;(c) wanton destruction of property and acts of vandalism;(d) theft of high-value items — whether financial or sentimental;(e) sophisticated planning and execution; and(f) offending while on bail or parole, or in close proximity to courtappearances on other charges.[24] Following the Court of Appeal's decisions in R v Taueki and R v Clifford,21sentencing Judges typically distinguish between factors relevant to the offence, whichassist in setting the starting point, and factors relevant to the offender personally, whichmay result in uplifts or discounts from the starting point. For this reason I prefer totreat the last of the factors listed in Senior above (offending while on bail or parole) as18 At [78].19 At [78]–[79]; Senior v Police (2000) 18 CRNZ 340 (HC). See also Benson v Police [2018] NZHC296 at [30].20 Senior v Police (2000) 18 CRNZ 340 (HC) at [19].21 R v Taueki [2005] 3 NZLR 372 (CA) at [8] and [42]–[44]; and R v Clifford [2011] NZCA 360,[2012] 1 NZLR 23 at [60].a factor relevant to the offender personally, to be considered after the starting pointhas been set.22[25] In the present case there is no evidence of premeditation, sophisticatedplanning or execution, targeting of a particular victim, or wanton destruction ofproperty. While the precise value of the goods stolen is unknown, the items taken inthe burglary included a laptop computer and iPad. The most significant aggravatingfactor is the fact that the burglary was of a dwelling house while the occupant was athome. There was therefore a very real risk of confrontation with the occupant. TheJudge appropriately recognised this factor in setting the starting point for the burglarycharge.23[26] The Judge did not refer to any case law in the course of adopting a startingpoint of 20 months. Ms Stretton cites three cases to support her argument that thestarting point was too high.[27] In Hotene v Police,24 Clifford J reached a starting point of 18 months for aburglary which involved Mr Hotene and two associates entering a residence duringthe day when the occupants were away and taking a television set, other electronicitems and cash collectively valued at approximately $3,000.[28] In Bates v R,25 the appellant was found guilty of the day-time burglary of aresidence from which an iPhone and jewellery valued at $15,000 was taken. Theresidents encountered and spoke to the appellant as he and his associate were leavingthe property. The appellant explained that he and his girlfriend were looking for theirdog. Shortly afterwards the house alarm was activated and the occupants returned tofind items missing. The District Court Judge's adoption of a starting point of 18months for burglary was not challenged on appeal.22 See Blissett v Police [2013] NZHC 156 at [28]–[35], where Duffy J discusses the discrepancies inapproach to sentencing for burglary; see also R v Columbus [2008] NZCA 192 at [12]–[15].23 At [8].24 Hotene v Police [2014] NZHC 2081.25 Bates v R [2016] NZCA 456.[29] In Blissett v Police, Mr Blissett pleaded guilty to two charges of burglary, twocharges of receiving and one charge of possession of a glass pipe for the purpose ofconsuming methamphetamine. Both burglaries were committed during the daytime.The second burglary was the more serious, as property was taken. It involved MrBlissett and an associate breaking into a residence and taking personal propertyincluding a camera and items of jewellery with a total value of $2,000. Duffy Jreviewed and compared several broadly similar burglary cases before adopting astarting point of 17 months.[30] Although the facts of these three cases obviously differ, they are broadlycomparable to the present case in terms of the gravity and circumstances of theburglary offending involved. Those cases tend to support an 18-month starting pointin Mr Proctor's case.[31] However, the Crown cites and relies on French v Police.26 There the defendantwas sentenced on one charge of burglary and one charge of receiving. The burglaryoccurred at a residential property during the daytime. The occupant of the house wasa 73-year-old woman who was out at the time. The defendant used a shovel to forceopen a window, causing minor damage, and proceeded to take 12 items of jewellery,estimated to have a value of $1,340. Gendall J considered that the offending fell atthe "relatively minor" end of the scale for dwelling house burglaries, and adopted astarting point of 20 months. The burglary offending in French v Police, while broadlycomparable to the present case, may be considered less serious as the value of theproperty stolen was less and because the occupant of the residence was absent fromthe address at the time. Nevertheless, a starting point of 20 months was adopted.[32] This comparative exercise demonstrates that a starting point of between 18 to20 months was available to the Judge. Although 20 months was stern, it was in myview within the available range for this offending.26 French v Police [2015] NZHC 2635.Receiving[33] Receiving stolen property valued over $1,000 carries a maximum sentence ofseven years' imprisonment.27 Again, there is no tariff sentencing judgment for theoffence of receiving. However, in Allen v Police French J said:28 regard is to be had to the value of the goods, the duration of the offending,the number of charges, the existence of a commercial element and thecloseness of the relationship between the burglar and the receiver.[34] Ms Stretton cites two cases to support her submission that the starting point onthis charge was too high. In R v Birkinshaw, items that were stolen in three separateburglaries and worth around $4,500 in total were found at the defendant's address.Collins J observed that were the defendant being sentenced separately on the chargeof receiving, the appropriate starting point would be 12 months' imprisonment, buthaving regard to the totality of the offending he considered an uplift of six months toreflect the receiving charge was appropriate.29 In Blissett v Police, the defendant wasfound to be in possession of personal items valued at $1,100 that were taken in oneburglary, and personal items valued at $300 that were taken in another. Duffy Juplifted the lead sentence by 11 months to reflect the two receiving charges. It isrelevant to note that both Blissett and Birkinshaw are cases where the uplifts weremade in the context of the courts adopting a concurrent approach to sentencing.[35] The decisions in Ellis v R30 and French v Police are examples where thesentence for receiving was considered as either a single offence or as part of acumulative sentencing approach. In French v Police, the defendant was charged withreceiving property after selling a stolen mountain bike valued at over $1,000 for $270.At sentencing, Gendall J was influenced by the fact that the defendant was present atthe time the burglary occurred, having accompanied an associate to the secure bikelock-up premises of a high school. He adopted a 14-month starting point on thereceiving charge.27 Crimes Act 1961, s 247(a).28 Allen v Police HC Christchurch CRI-2009-409-113, 3 September 2009 at [22].29 At [33].30 Ellis v R [2012] NZCA 513.[36] In Ellis v R, there was a burglary of a property in Grey Lynn. Approximately$5,000 worth of property was stolen. A few hours after the burglary Mr Ellis wasfound in possession of the property stolen in the burglary. The sentencing Judgeadopted an 18-month starting point, which the defendant challenged on appeal. TheCourt of Appeal commented:31We are satisfied that the 18 month starting sentence was within the rangeavailable to the Judge although stern. The Judge was entitled to take intoaccount that Mr Ellis had come into possession of the stolen goods veryshortly after the burglary within hours if not minutes. This obviouslysuggested some connection between the burglar and the receiver. Thisinference is reinforced by Mr Ellis's previous convictions for dishonesty. Thevalue of the property taken was not minor but nor was it a major receiving. Astart sentence, therefore, in the 12 to 18 month range was appropriate.[37] The present case is more serious than was the case in French, given thesignificantly higher value of the stolen property. Here Mr Proctor sold the items stolenin the course of the burglary the same day as the burglary, suggesting a closeconnection between burglar and receiver. The value of the items stolen in the presentcase ($5,000) was the same as in Ellis. The Court in Ellis suggested a range of 12 to18 months. I am therefore satisfied that the 15-month starting point adopted by theDistrict Court Judge in the present case was within range.Were additional reductions for remorse and rehabilitation necessary?[38] Ms Stretton submits that the Judge ought to have discounted Mr Proctor'ssentence to recognise his remorse. She refers to Mr Proctor's letter of apology writtento the Court, and submits that a combined discount of 10 per cent for remorse and hisrehabilitative efforts was appropriate.[39] The Supreme Court gave the following guidance on remorse discounts inHessell v R:32Sentencing judges are very much aware that remorse may well be no morethan self-pity of an accused for his or her predicament and will properly besceptical about unsubstantiated claims that an offender is genuinelyremorseful. But a proper and robust evaluation of all the circumstances maydemonstrate a defendant's remorse. Where remorse is shown by the defendant31 At [9].32 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].in such a way, sentencing credit should properly be given separately from thatfor the plea.[40] Having regard to the appellant's letter and the contents of the pre-sentencereport, I consider the Judge was justified in concluding that Mr Proctor's letter did notdemonstrate genuine remorse. The letter refers primarily to the effects of his offendingupon himself and his children, and tends to blame his offending on the use ofmethamphetamine. The pre-sentence report, which was completed following aninterview with Mr Proctor, concludes that he lacks insight into his offending. There isno indication in the report that he has shown any remorse.[41] As for rehabilitative efforts, Ms Stretton refers to the following material thatwas before the sentencing Judge:(a) the pre-sentence report recording that Mr Proctor had applied for andbeen accepted into the Te Ara Hou residential drug rehabilitationprogramme, although the address was not suitable for electronicmonitoring;(b) a letter from The Salvation Army advising that Mr Proctor had beenoffered a place at the Salvation Army's Supportive Accomodationfacility, Epsom Lodge, where he would be required to attend a drug andalcohol rehabilitation programme with a residential component; and(c) a letter to the Court from Mr Proctor's aunt who had been closelyinvolved in his upbringing and in which she describes the endeavourshe has made in recent times to make positive changes in his life,including obtaining a job before he went into prison, and attending theMan Up programme.[42] Ms Stretton further says that since his sentencing Mr Proctor has been foundsuitable for admission to the the adult residential rehabilitation programme at OdysseyHouse and can be admitted on 26 April 2018. Counsel has produced a letter fromOdyssey House confirming his acceptance for the programme.[43] Acceptance into these programmes is most certainly a positive achievementfor Mr Proctor. The Judge did not refer to these efforts or to the progress made byobtaining a placement in the Salvation Army residential programme in his sentencingdecision. While the steps taken by Mr Proctor to obtain employment and acceptanceinto the Salvation Army residential programme are to his credit and indicate a level ofcommitment to rehabilitation, at the date of sentencing no rehabilitative steps had yetbeen taken and consequently the Judge was entitled to conclude that no discount forrehabilitative efforts was available.[44] The Crown also submits that Mr Proctor was on bail at the time of theoffending. Although I consider he could have done so, Judge Ronayne did not add anuplift to the sentence for this factor.33 In my view, any discount that may have beengiven to recognise Mr Proctor's rehabilitative efforts would have been effectivelycounter-balanced by an uplift for the fact that the offending occurred while Mr Proctorwas on bail.Was a further adjustment for totality required?[45] After applying uplifts for prior convictions and guilty plea discounts, whichare not challenged, the District Court Judge reached a cumulative end sentence of twoyears and 11 months' imprisonment. He then carried out the requisite totalityassessment before concluding that the overall outcome and cumulatively constructedsentence reflected Mr Proctor's culpability and his risk to the community.[46] While it was open to the Judge to adopt a cumulative approach to theconstruction of the sentence, in my view the sentencing could equally appropriatelyhave been approached on a concurrent basis. The present case has much in commonwith the offending dealt with in Blissett, where a concurrent sentencing method wasadopted.[47] As I have noted, in Birkinshaw Collins J, having determined that the charge ofreceiving involving goods valued at over $4,500 warranted a starting point of 1233 See Sentencing Act 2002, s 9(1)(c).months' imprisonment, proceeded to apply an uplift of six months for that chargetaking into account the totality of the offending.[48] Here, while both of the starting points for the burglary (20 months) and thereceiving (15 months) were in range, they were in each case at the upper level of theavailable range and could appropriately be seen as stern. To those starting points theJudge added the nine-month uplift for the appellant's prior offending. Although nochallenge was made to that uplift on appeal, it is relevant in this context to note thatboth the police prosecutor and the appellant's counsel had submitted to the Judge thatan uplift of six months would be appropriate to reflect the appellant's previousburglary and dishonesty convictions.[49] When a cumulative approach to the construction of a sentence is adopted, thereis a risk the sum of the separate assessments will yield a sentence that does not reflectthe overall criminality of the offending unless adjusted. The existence of such a riskis recognised in s 85(2) of the Sentencing Act, which in mandatory terms stipulatesthat where cumulative sentences of imprisonment are imposed, they must not result ina total period of imprisonment wholly out of proportion to the gravity of the overalloffending.[50] An appropriate example of the adjustment of a starting point in this context canbe seen in Birkinshaw, where the Court reduced a starting point of 12 months to sixmonths for a receiving charge in circumstances where the defendant in that case wasalso being sentenced for other offences which were being treated as the lead offences.There, Collins J made the adjustment to take into account the totality of the offending.[51] In the present case I consider that the Judge erred in his view that there was nojustification to reduce the sentence he had arrived at by adopting the cumulativeapproach. As I have noted, the Judge adopted stern starting points for both the burglaryand receiving charges and coupled those with a stern uplift for the appellant's previousoffending. While these individual assessments were within range, when combinedthey compound to produce a total sentence that was wholly out of proportion to thegravity of the appellant's overall offending. In my view a sentence of almost threeyears' imprisonment for the offending in the present case is manifestly excessive.[52] Applying the totality principle, I consider that it is appropriate to reduce by sixmonths the total sentence derived by means of adopting a cumulative approach, toyield a final sentence of two years and five months.Result[53] Accordingly I allow the appeal and make an order quashing the sentence oftwo years and 11 months' imprisonment imposed by Judge Ronayne on 23 January2018, and substitute a sentence of two years and five months' imprisonment.[54] The Judge's orders relating to the payment of reparation and the appellant'soutstanding fines are to stand._____________Paul Davison J