Gorinski v Ministry of Justice - Collections Unit HC Wellington CRI-2011-485-45 [2011] NZHC 769 (8 July 2011)

Last Updated: 31 July 2011

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CRI-2011-485-45}

BETWEEN NIKOLAI ARTHUR GORINSKI Appellant

AND MINISTRY OF JUSTICE - COLLECTIONS UNIT Respondent

Hearing: 5 July 2011

Counsel: S I Robinson for Appellant

G Kelly for Respondent

Judgment: 8 July 2011

_{JUDGMENT OF MILLER J}

[1] Mr Gorinski appeals against a sentence of six months community detention imposed on him in the District Court at Upper Hutt on 9 March 2011. The sentence passed in substitution for a long sentence of community work which he ought to have completed, but was far short of completing, when he was injured in a car crash on 13 July 2009 with the result that he could no longer work. He maintains that the length of the sentence of community detention is excessive.

[2] By December 2007 Mr Gorinski had accumulated fines of no less than

$25,640 for offences to do with motor vehicles; speeding, driving without a licence, or driving unlicensed cars. He was then aged 17. On 12 December in that year he was given 200 hours community work with $12,010 of fines being remitted. For some reason this community work sentence was not actioned by officials, although the records show that he performed one hour of it in December 2007.

_{[3] He received a further 100 hours for theft from a car on 28 August 2008.}

NIKOLAI ARTHUR GORINSKI v MINISTRY OF JUSTICE - COLLECTIONS UNIT HC WN CRI-2011-485-

45 8 July 2011

[4] On 10 February 2009 he was sentenced to a further 200 hours, with fines of

$10,000 remitted and ordered to get his full licence. Since December 2008 he had accumulated a further $6,930 in fines. The decision of 10 February left him with a balance of $3395 in fines outstanding.

[5] Mr Gorinski had completed 159 hours community work when he was injured. That work had been done since January 2008. Initially his attendance was moderately regular, but since October 2008 he had done only 27 hours, all of them in

2009. He did manage to get his full licence in December 2009.

[6] He came before the District Court on February 2010, and since then has been regularly remanded while his fitness for work was assessed. It is not in dispute that he has provided medical certificates as necessary. Eventually the present sentence was imposed.

[7] It appears from the pre-sentence report that Mr Gorinski’s position was that it was not his fault that he could not complete the community work. However, the report suggested he had not attended to community work at all in 2008, and had done only 27 hours in 2009. He had been issued a final warning on 1 July 2009. I note that s 58(2) of the Sentencing Act 2002 prescribes a minimum rate of completion,

100 hours per six months. Mr Gorinski ought to have substantially completed his sentence by the time he was injured.

[8] The Judge observed that Mr Gorinski had had ample opportunity, despite his health, to undertake a “fair proportion” of the community work. He had not done so. The Judge accepted that community work was not presently viable. If he simply cancelled the community work, fines of $33,646 would be reinstated. He characterised Mr Gorinski as a young man with no respect for the law, and a menace, and imposed the sentence of community detention, with a curfew of 7 pm to 7 am, seven days per week. I understand that all of Mr Gorinski’s fines incurred until that date were remitted.

[9] It is not in dispute that the District Court had jurisdiction to substitute community detention for the cancelled community work sentence: s 68(3)

Sentencing Act. When doing so the Court must take into account any portion of the original sentence that remains unserved.[1]

[10] On appeal, Mr Robinson argues that the maximum sentence of community detention was not necessary to serve the purposes of accountability, responsibility, denunciation and deterrence. The sentence failed to recognize that Mr Gorinski had got his full driver’s licence; it is common practice to remit fines on condition that young offenders do so. And the Judge did not give credit for community work done. Finally, it was not necessary to impose the maximum curfew hours.

[11] The appellate question is whether the sentence was manifestly excessive. Ordinarily I would answer “no”, for several reasons. First, Mr Gorinski had accumulated a substantial number of fines, together amounting to a considerable sum, over a considerable period, with no discernible effect upon his rate of offending. He was in employment but seems to have made not the slightest effort to pay the fines. Second, when given community work he failed to perform it. Third, the maximum community detention term is just that. It is not reserved for the worst offenders, for whom a more restrictive sentence is available. Fourth, Mr Gorinski had accumulated a very long sentence of community work, even if one discounts the sentence that had not been actioned, and he had failed to complete it at an adequate rate. Fifth, it cannot be said that six months community detention is equivalent to any given term of community work or sum in fines, meaning that it was not logically necessary for the Judge to discount the sentence to reflect the small amount done under threat of being breached. Seventh, it is by no means unknown for imprisonment to follow persistent non-payment of fines: Wright v Collections Unit

Dunedin Court.[2] As that judgment illustrates, some offenders place the public at risk

by their driving offences and eventually bring a punitive sentence upon themselves by persistent non-compliance with fines and community work.

[12] However, Mr Gorinski, who attended the hearing before me, explained that he had been in employment as a painter and plasterer and hopes to regain

_{employment although he has been told he cannot work with paint fumes. The}

community detention sentence has not been breached, although he is serving it with flatmates, his partner having left him. More importantly, he stated when questioned that he did not think he had incurred any more fines since obtaining his full licence (which he did on 22 December 2009). I invited Ms Kelly to check that. She has since confirmed that he has incurred four for driving matters, including driving without a warrant of fitness and speeding. The most recent were on 11 February and

8 April 2011. Those two are under a payment arrangement.

[13] But for the continued incurring of fines for infringements going to road safety, I indicated, I would be inclined to remit the balance of Mr Gorinski’s sentence on the ground that the Judge mistakenly characterised him as a menace still, not recognising that he had reformed. He has served four months of the sentence.

[14] Regrettably, the continued infringements rule out that course of action. Community detention was the least restrictive sentence that Mr Gorinski might hope for, as Mr Robinson acknowledged, and in all the circumstances it cannot be said that the Judge was wrong to impose a term of six months. The curfew hours do not interfere with normal employment, should he be able to find it, or other gainful activity.

[15] The appeal is dismissed. I am grateful to Ms Kelly for promptly answering all of my questions about Mr Gorinski’s complicated history of fines and community work.

Miller J

Solicitors:

Paino & Robinson, Upper Hutt for Appellant

Crown Solicitor’s Office, Wellington for Respondent

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[1] _{Section 68(4).}

[2] Wright v Collections Unit Dunedin Court HC Dunedin CRI-2005-412-48, 28 November 2005.