D S BILLING-LONG V MINISTRY OF JUSTICE (COLLECTIONS UNIT) HC NAP AP 19/2009 [2009] NZHC 1117 (25 August 2009)

IN THE HIGH COURT OF NEW ZEALAND
NAPIER REGISTRY
                                                                          AP 19/2009



                          DYLAN SHANE BILLING-LONG
                                   Appellant



                          
                   v



                MINISTRY OF JUSTICE (COLLECTIONS UNIT)
                               Respondent



Hearing:
       25 August 2009

Appearances: D S Billing-Long in person
             D Kerr for the Respondent

Judgment:       25 August
2009


                          [ORAL] JUDGMENT OF WYLIE J




Solicitors:
Crown Solicitor, P O Box 609, Napier 4140

Copy to:
D
S Billing-Long, 199 Georges Drive, Napier

D S BILLING-LONG V MINISTRY OF JUSTICE (COLLECTIONS UNIT) HC NAP AP 19/2009 25 August
2009

[1]    On 6 May 2009 Judge G A Rea remitted $4,075 in fines owing by
Mr Billing-Long and substituted 400 hours community work
in their place.


[2]    Mr Billing-Long filed a notice of appeal under s 116 of the Summary
Proceedings Act 1957. The notice of
appeal asserted that the 400 hours community
work was excessive. Mr Billing-Long recorded in his notice of appeal, and stated in
Court this morning, that he is aware of others who, in similar situations, but with
higher fines, have received less hours of community
work hours in substitution for
the fines. Mr Billing-Long also stated that he is currently in the process of obtaining
work and that
he hopes to be able to set in motion a payment plan to clear his fines.


[3]    In the course of hearing from Mr Kerr on behalf
of the respondent, it became
apparent that the statement of means form on the Court file was only partially
completed. It was unsigned
and it was not dated.


[4]    The Registrar, at my request, showed it to Mr Billing-Long. He denied that it
was his handwriting
on the form.


The District Court's jurisdiction


[5]    The power to remit fines is set out in s 88 of the Summary Proceedings
Act,
and in s 19D of the Crimes Act 1961. Relevant, s 88(3) allows for the imposition of
other sentences. It provides as follows:

       (3)     [[Subject to subsection (3AA) of this section,]] the District Court
       Judge [[or Community Magistrate]] may,
after considering the report of the
       Registrar, and the financial position of the defendant (whether determined
       from
any financial statement prepared by the defendant or from other
       sources)--

       ...

       [[(c) subject to sections [55
to 80] of the Sentencing Act 2002 and section
       106E of this Act, sentence the defendant to community work; or]]

       ...

       (h)     Remit the fine or a part of the fine.

[6]    Section 106E of the Summary Proceedings Act states as follows:

 
     (1)    A District Court Judge [[or Community Magistrate]] shall not
       sentence a defendant to [[community work]] under
this Part of this Act for
       non-payment of a fine unless--

               (a)     A statement of means has been completed by
the defendant;
               and

               (b)    The Judge [[or Community Magistrate]] has considered the
              
statement of means; and

               (c)    The Judge [[or Community Magistrate]] is satisfied that all
               other methods
of enforcing the fine, other than [[a sentence of
               community detention or home detention, or]] the issue of a warrant
               of commitment, have been considered or tried and that they are
               inappropriate or unsuccessful.

[7]
   The power to remit fines is found only in these sections and the procedure
must be followed. I refer to the decision of the Court
of Appeal in R v Lowe CA
62/05, 4 July 2005. In that decision, the Court noted at [18] as follows:

       The Judge ordered that
unpaid fines be remitted. We raised with Mr Nevin
       that in fact the Judge was without jurisdiction to remit fines unless pursuant
       to proper process. Mr Niven accepted that this was so. The only jurisdiction
       to remit fines comes under s 88 of the Summary Proceedings Act 1957 and
       s 19D of the Crimes Act
1961; R v King CA 23/01 21 June 2001 at [4]; R v
       Gebbie CA 452/04, 2 March 2005 at [7]. The statutory process is leading to
       a remission of fines was not followed in this case. The fines, which were
       accordingly remitted without jurisdiction,
must be reinstated.

[8]    In the circumstances, it is clear that Judge Rea did not have before him a
statement of means which had
been completed by Mr Billing-Long. The statutory
process which can lead to a sentence of community work being imposed was not
followed,
and as a result, the Judge acted without jurisdiction.            Mr Kerr quite
properly accepted that this was the case.


Period
of community work sentence


[9]    To the extent that it may assist, I also comment on the number of hours of
community work ordered
by the Judge.


[10]   In Davis v Registrar of the Collections Unit at Dunedin HC DN CRI 2005-
412-13, 3 May 2005, the District Court
Judge had imposed a sentence of 400 hours

of community work in lieu of $4,000 in fines with some further allowance if the
defendant
made a good response within a six month period. Randerson J held that it
was inappropriate to fix a penalty taking into account the
prospect that further
remission might occur in the future.        Further, His Honour was satisfied that a
sentence of 400 hours
community work in lieu of $4,000 in fines was manifestly
excessive.    He noted that the hourly rate of $10 apparently adopted was
not
consistent with another decision in the High Court ­ May v Department for Courts
HC AK, A26/02, 28 June 2002 ­ where Chambers
J held that 150 hours of
community work was appropriate in remitting fines of $2,040 and noted that this was
equivalent to an hourly
rate of $13. The penalty of 400 hours in Davis was held to
be very substantial, and Randerson J held that it did not give proper
weight to the
appellant's inability to meet the fines imposed having regard to his financial and
other circumstances. The Judge took
the view that the District Court Judge had
applied a rule of thumb which was not consistent with the broad discretion in s 88.


[11]   Randerson J also made various observations, particularly at [9] of the
judgment, as to the extent of the discretion available
under s 88. Randerson J noted
as follows:

       ... No guidance is given in the legislation as to the relationship between the
       amount of the fines remitted and the number of hours of community work
       imposed. Plainly, the discretion to be exercised
under s 88 is intended to be
       broad, taking into account all relevant circumstances.                Relevant
       considerations
would include the amount of the fines, the crimes for which
       they were imposed, the length of time over which they were accumulated,
       the reasons for non-payment, the extent to which the offender has paid or has
       attempted to pay, the financial and other
circumstances of the offender and
       the likelihood or otherwise of the balance of fines being paid (where
       remission of
part of the fines is to be considered).

[12]   Here, and even assuming that the Judge had jurisdiction to remit the fines
(which
I have held not to be the case), in my judgment the sentence of 400 hours of
community work imposed by Judge Rea in lieu of outstanding
fines of $4,075 was
excessive. Moreover, it is not clear from His Honour's decision what other factors
were considered. This is an
area where each case must turn on its own facts and it is
important that reasons are given for the alternative sentence imposed ­
see Taylor v
Department for Courts, HC NWP AP 37/98, 16 February 2000, Anderson J and

Perkinson v Registrar District Court Otahuhu
HC AK AP251/95, 20 November
1995, Fisher J.


Summary


[13]   In the circumstances, the fines which were remitted are reinstated
and the
sentence of 400 hours community work is set aside. The matter is remitted to the
District Court.


[14]   I have discussed with Mr Billing-Long the procedure
to be followed from
here. If he wishes to pursue the remission of his fines, he will have to speak to the
Registrar of the District
Court, fill out and complete a statement of means form, and
obtain an alternative date from the Court so that the matter can be reconsidered.




                                                Wylie J