Grant v Police [2012] NZHC 1226; (2012) 25 CRNZ 674 (1 June 2012)

Last Updated: 18 June 2012

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2012-443-18 [2012] NZHC 1226

BETWEEN NATHAN BENJAMIN GRANT Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 1 June 2012

Counsel: B Henderson for Appellant

S Law for Respondent

Judgment: 1 June 2012

_{(ORAL) JUDGMENT OF HEATH J}

Solicitors:

Crown Solicitor, New Plymouth

Counsel:

_{B Henderson, New Plymouth}

GRANT V NEW ZEALAND POLICE HC NWP CRI 2012-443-18 [1 June 2012]

The appeal[1]

[1] Mr Grant appeals against a sentence of $450 fine (to be paid immediately) and, in default of non-payment, a term of imprisonment of 10 days. That sentence was imposed as a sanction for failing to answer a witness summons.

Introduction

[2] On 21 May 2012, Guy and Shayne Behan-Kitto were on trial on a charge of wounding Mr Grant with intent to cause grievous bodily harm. After the opening address of counsel for the Crown, it became clear that four civilian witnesses, including Mr Grant (the complainant) had not attended to answer witness summonses. The trial was adjourned to the following day, after the issue of warrants for arrest by Judge Roberts, the trial Judge. Ultimately, it proved necessary to abort the trial. A new trial will begin on 9 July 2012.

[3] On 22 May 2012, one of the civilian witnesses was brought before the Court, Mr Healey. After a discussion with the presiding Judge, Judge Roberts, he was fined

$450 to be paid immediately. The fine was paid. No appeal against the imposition of that fine has been brought.

[4] Next, Mr Grant surrendered to the Police. He was brought before Judge Roberts on 24 May 2012. He provided an excuse for non-attendance which does not seem to have been accepted by the Judge. It is clear that the Judge retained residual concerns that the four civilian witnesses had been influenced by, or on behalf of, the accused in not answering their witness summonses.

[5] At the conclusion of that discussion, during which Mr Grant was represented by a duty solicitor, Mr Mooney, Judge Roberts imposed a fine of $450 to be paid immediately. If default was made, Mr Grant was to serve 10 days imprisonment.

[6] Mr Grant could not pay the fine. He was imprisoned on 24 May 2012. His appeal against the sentence came before me, on 25 May 2012. I released Mr Grant from custody and remanded him at large, to hear argument on whether the Judge had jurisdiction to make those orders.

Analysis

[7] Mr Grant came before the Court because he had failed to answer a witness summons. His position as complainant does not alter his status as a witness. The Court’s jurisdiction to respond to his failure to attend is set out in s 351 of the Crimes Act 1961 provides:

351 Failure of witness to attend

(1)If any witness who has been summoned to give evidence at any trial, or who has been served with a notice to attend under section 184V of the Summary Proceedings Act 1957, fails to attend at the time and place appointed, the Court may issue a warrant to arrest him and bring him before the Court, and may adjourn the trial.

(2)The Court may impose on any such witness who fails to attend as aforesaid a fine not exceeding $500.

[8] The clear terms of s 351 identify only a fine as a penalty. The maximum fine is $500. The fine imposed on Mr Grant was $450.

[9] Ordinarily, any fine imposed summarily by a District Court is payable within

28 days of imposition.[2] Other provisions deal with the ability to pay by instalments and also identify criteria for circumstances in which a Judge might require immediate payment.

[10] Relevant parts of ss 80–83 and 90 of the Summary Proceedings Act provide:

80 Fines generally payable within 28 days

Except as otherwise provided in this Act or the Sentencing Act 2002, every fine shall be paid within 28 days after the day on which it is imposed.

81 Time to pay or payment by instalments

(1) If a fine is payable, the Court may—

(a) make an order doing either or both of the following:

(i) allowing a greater time than 28 days for payment: (ii) allowing payment to be made by instalments; or

(b) direct the Registrar to determine whether to enter into an arrangement with the defendant allowing greater time to pay or to pay by instalments, or both, under section 86.

...

(4) If the Court makes an order under subsection (1)(a) and the Court is subsequently satisfied either that the defendant provided false or misleading information about the defendant's financial capacity before the order was made or that the defendant's financial capacity has changed significantly since the order was made, the Court may, after giving the defendant the opportunity to be heard, vary, suspend, or cancel the order.

82 Financial capacity of defendant

(1) If a Court, on the determination of a complaint, proposes to order that the defendant pay a fine, the Court must take into account the defendant's financial capacity, and sections 41 to 43 of the Sentencing Act

2002 apply with any necessary modifications.

(2) If a Court is considering making an order under section 81(1)(a) or

83(1), or makes a direction under section 81(1)(b) of this Act or section

36(1)(c) of the Sentencing Act 2002, the Court may direct that the defendant make a declaration as to financial capacity (in which case sections 42 to 43

of the Sentencing Act 2002 apply with any necessary modifications).

83 Order for immediate payment of fine

(1) If a fine is payable, the Court may order the defendant to pay the fine immediately if,—

...

(b) in any other case, the Court is satisfied that the defendant has sufficient means to pay the fine immediately and either—

(i) the defendant has no fixed place of residence; or

(ii) the Court is satisfied that, because of the gravity of the offence, the character of the defendant, or other special circumstances, the fine should be paid immediately.

...

(2) Where any order to pay a fine immediately is not complied with, the

Court may—

(a) Direct that a warrant to seize property be issued in a form approved under section 209A; or

(b) Subject to subsection (3A) of this section, direct that a warrant of commitment be issued in the prescribed form for the imprisonment of the defendant for a period not exceeding the maximum prescribed by section 90 of this Act; or

(c) Direct that the Registrar issue a deduction notice requiring a bank to deduct the amount due from a sum payable or to become payable to the defendant.

...

(3) Any warrant of commitment directed to be issued under subsection (2)(b) of this section may be issued by any District Court Judge and may be withdrawn at any time by any District Court Judge.

(3A) A District Court Judge shall not issue a warrant of commitment under this section unless—

(a) The defendant has had the same opportunity for legal representation as is available to a defendant who is liable to a [sentence of imprisonment under section 30 of the Sentencing Act 2002; and

(b) The defendant is before a District Court Judge.

(4) Where a Court makes an order under subsection (1) of this section, or gives a direction under subsection (2) of this section, a record of the order or direction and the grounds on which it was made or given shall be entered in the Criminal Records required to be kept under section 71 of this Act.

...

90 Scale of imprisonment for non-payment of fine

The period of imprisonment imposed under this Act in respect of the non- payment of 1 or more fines or where the sale of any property under any process does not produce sufficient proceeds to pay the fine, shall be such period as in the opinion of the Court or District Court Judge fixing the period will satisfy the justice of the case, not exceeding, for each fine,—

(a) In the case of an offence that was punishable by a period of imprisonment of more than 3 months, the maximum term of imprisonment to which the defendant was liable on the conviction, or a period of 1 year, whichever is the lesser:

(b) In any other case, a period of 3 months. (my emphasis)

[11] The terms of s 83 impose constraints on a Judge who wishes to impose a fine, to be paid immediately. A pre-condition, on the facts of this case, was constraints linked to the need for the Court to be satisfied that the defendant has sufficient means to pay it. The Court of Appeal has made it clear that the inquiry required by the Judge must reflect the legislative policy that imposes restrictions on the

imposition of an immediate payment of fine. In R v Khan,[3] the Court of Appeal said:

[39] The Judge was not under a legal obligation to direct that the appellant provide a declaration as to his financial capacity (s 41(3) Sentencing Act

2002) or to order a reparation report (s 33(1)). But a Judge must have accurate information about the financial situation of a person to be

sentenced particularly when imposing a total financial impost of $5,000 which had to be paid within 28 days in default of which he was to serve two months’ imprisonment. The importance of this is underlined as this man was

a sickness beneficiary. (my emphasis)

[12] The Judge did not follow appropriate procedures. There was no evidence of means to pay before him. He did not take steps to ascertain whether he had jurisdiction to order that the fine be paid immediately. In those circumstances, I consider the Judge acted without jurisdiction in imposing the fine requiring immediate payment.

[13] Mr Henderson, in support of Mr Grant’s position, also submitted that the Judge had not complied with s 30 of the Sentencing Act 2002, a provision that must be taken into account if a warrant of commitment is to be made for non-payment of a fine.[4] Section 30(1) provides that no Court may impose a sentence of imprisonment on an offender who has not been “legally represented” at the stage of the proceeding at which he or she was at risk of conviction. An informed choice not to have legal representation takes an offender outside of the ambit of that rule[5] but the criteria set out in s 30(2) do not appear to have been complied with on the information available to me on appeal.

[14] The issue of whether there has been compliance with s 30 turns on whether representation by a “duty solicitor” meets the definition of the term “legal

_{representation” for the purposes of s 30(1). While s 30 was considered recently by}

the Supreme Court, in R v Condon[6] this issue was left undecided. In interpreting a predecessor to s 30 (s 13A of the Criminal Justice Act 1954), the Court of Appeal had earlier held, on the facts of a particular case, that a duty solicitor had not been representing the offender for the purposes of s 13A.[7]

[15] In the context of the present appeal, it is unnecessary to determine whether s 30 was breached. However, compliance with s 30 is a matter of some importance, to which District Court Judges need to be alert in similar cases.

Result

[16] For the reasons I have given, the appeal is allowed. Both the fine and the default term of imprisonment are quashed.

[17] I have made inquiries of Mr Grant, through Mr Henderson, as to his ability to meet a fine of $75 within 28 days. It has been confirmed that he can do so. Accordingly, I impose a fine of $75 to be paid within that time.

[18] I have set the level of the fine at a relatively low level to reflect the fact that Mr Grant has already spent one night in custody as a result of the order made by Judge Roberts on 24 May 2012. I consider that a substantial reduction is required for that. Nothing I have said is intended to suggest that the fine imposed on Mr Healey was excessive, in the circumstances.

[19] In anticipation of today’s hearing, I received helpful submissions from Mr Henderson and Ms Law, for the Crown. Mr Henderson appeared last week on behalf of Mr Grant. However, notwithstanding the indications I gave about the need for legal submissions on the points raised, Mr Grant has been refused legal aid. Mr Henderson, nevertheless, felt it appropriate to prepare submissions for which I am

_{grateful. I consider that he should be recompensed for his assistance to the Court. I}

make an order appointing Mr Henderson as amicus curiae on the basis that his reasonable costs and disbursements be paid out of money appropriated for the public

_{by Parliament.}

P R Heath J

---

[1] While these reasons have been edited significantly from those given in open Court, they reflect

the essence of what was said in Court.

[2] Summary Proceedings Act 1957, s 80. Where a fine is imposed following conviction on

indictment, see ss 19–19F of the Crimes Act 1961.
[3] _{R v Khan CA312/05, 7 March 2006.}

[4] _{Summary Proceedings Act 1957, s 83(3A)(a).}

[5] Sentencing Act 2002, s 30(2).

[6] _{R v Condon [2007] 1 NZLR 300 (SC).}

[7] R v Long [1977] 1 NZLR 169 (CA) at 173–174 (Cooke J) and 175 (Woodhouse J); Richmond P dissenting on the facts. See also the discussion of Long in R v Condon [2007] 1 NZLR 300 (SC) at paras [16]–[18].