IN THE HIGH COURT OF NEW ZEALAND
INVERCARGILL REGISTRY
CRI-2015-425-6&7
[2015] NZHC 1590
BETWEEN
RAMERA CHAMBERS
Appellant
AND
THE QUEEN
Respondent
Hearing:
29 June 2015
Appearances:
K McHugh for the Appellant
M Wong for the Crown
Judgment:
8 July 2015
JUDGMENT OF NATION J
Background
[1]
Mr Chambers appeals against sentences imposed on 25 February 2015 on
charges of injuring with intent and burglary.1 That offending had occurred on 26
September 2013. He was sentenced to imprisonment for two years and two months.
He was also ordered to pay reparation of $100 and emotional harm reparation of
$500 at the rate of $20 per week.
[2]
Mr Chambers also appeals against sentences imposed for offending that
occurred on 7 September 2014 in Invercargill. In relation to that incident, on an
escaping from custody charge, he was convicted and sentenced to imprisonment for
four months.
On two charges of assaulting Police, he was sentenced to
imprisonment for one month.
On a charge of assault, he was sentenced to
imprisonment for one month. On two intentional damage charges, he was sentenced
to imprisonment for one month. In relation to one of the intentional damage charges,
1
R v Chambers [2015] NZDC 2805.
CHAMBERS v R [2015] NZHC 1590 [8 July 2015]
he was ordered to pay $794 reparation immediately. On the other intentional damage
charge, he was ordered to pay reparation of $264 immediately. Those sentences
were all concurrent.
[3]
In respect of outstanding fines of $4,543.11, a substituted sentence of two
weeks’ imprisonment was imposed, cumulative on the other sentences.
He has
appealed that sentence.
[4]
On 25 February 2014 a co-offender, Wiremu Devlin, was sentenced at the
same time as Mr Chambers in respect of the lead offences. Mr Devlin was sentenced
to home detention for a period of 10 months, 100 hours’ community work and
ordered to pay reparation of $580. Another co-offender, Mr Karetai, who was said
by Mr Chambers and Mr Devlin to be the main offender in this incident, was earlier
sentenced to 11 months’ home detention.
[5]
The appeal was advanced on the basis:
(a) the end sentence was manifestly excessive and should have been a
sentence of less than two years’ imprisonment;
(b) there was too great a disparity with the sentence imposed on a cooffender in respect of the lead offence of injuring with intent to injure;
and
(c) there was an error in the substitution of imprisonment for non-payment
of fines.
The threshold for an appeal against sentence
[6]
Section 250(2) of the Criminal Procedure Act 2011 states that the Court must
allow the appeal if satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction;
and
(b) a different sentence should be imposed.
In any other case, the Court must dismiss the appeal.2
[7]
This appeal should be allowed only if I am satisfied the ultimate sentence
imposed was “manifestly excessive”.3
The 2013 offending
[8]
The lead offences were the injuring with intent and burglary charges arising
out of the incident that occurred on 26 September 2013. Although Mr Chambers and
two other defendants pleaded guilty to those charges, there was obviously
considerable delay in resolving those charges.
In part, this must have been
connected with disputes over the summary of facts.
[9]
The summary of facts indicated, on 26 September 2013 at about 6.00 p.m.,
five to six males went to the victim’s address in Invercargill. Two to three of the
males knocked on the front door. Chambers, Devlin and one other knocked on the
back door. The victim approached the back door. The defendants there appeared
aggressive and said they were coming in for drinks. The victim said they were not to
do this and turned to get his phone and call the Police. At that point, the males at the
front door forced their way through the front door. One of them grabbed the victim
by the throat, pinned him against a wall with a choke hold and shouted “where is
he”, referring to a person who used to live at the address. One of the males went to
the back door and let the others in. Five of the males came into the hallway. The
victim was repeatedly asked where this person was and was told he was lying.
During those exchanges, the victim had his head bashed against a door frame and
was punched at least three times. Some of the males indicated they wanted one of
the defendants to stop beating the victim and said they were after the other person.
Some of the offenders, not including Chambers and Devlin, went through the house
ransacking rooms.
Chambers began questioning the victim about a phone
conversation. As a result of that questioning, the victim was bashed by the same
defendant who had hit him earlier. There was no direct evidence that the defendants
Chambers and Devlin had assaulted the victim. The group finished their search of
the house. Chambers told the bearded man to let the victim go and made the victim
2
3
Criminal Procedure Act 2011, s 250(3).
Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 402 at [22] and [35].
go into the bathroom and wash his hands. Chambers also washed blood off his
hands. Chambers told the victim that this was lenient and not to go to the Police as
this would make it worse.
[10]
A victim impact report indicated that the victim had suffered bruising and a
cut to the head which required hospital treatment. He suffered headaches for months
afterwards. Psychologically, the offending had affected him. He continued to be
anxious for his safety with fears that members of the group would return.
[11]
The sentencing Judge had seen the summary of facts presented to the Court
for Mr Karetai. He noted that there was a difference between the summaries of facts
in that Mr Devlin and Mr Chambers had not been involved in the actual violence, at
times had attempted to persuade those assaulting the victim to stop and had not been
involved in trashing the house. The sentencing Judge accepted the involvement of
both Mr Devlin and Mr Chambers was less culpable than that of Mr Karetai.
[12]
Through submissions and from other information on the Court file, I gather
the group of men had gone to the victim’s address intending to exact retribution on a
person who they thought had lived at that address. The pre-sentence report referred
to Mr Chambers describing his co-offenders as Whānau. He told the probation
officer his aunt was the mother of a co-offender, Robert Karetai. She had been in a
relationship with someone who they thought had been living at the victim’s address.
Robert Karetai had told his co-offenders that she had been beaten up so the group got
together and intended giving this person “a bit of a fright”. Mr Chambers told the
probation officer that he had never hit the victim, had tried to stop the others causing
any damage but he knew “that just being there makes me as guilty as the rest”.
The appellant and co-offenders
[13]
At the time of this offending, Mr Chambers was 19 years of age. He had
three convictions for being an unlicensed driver failing to comply with prohibition.
He was convicted and discharged in January 2013 on a charge of failing to answer
bail. On 1 March 2013, he was convicted on a charge of wilful damage and
sentenced to 60 hours’ community work.
[14]
The pre-sentence report dated 6 November 2014 referred to Mr Chambers’
admission that he had anger issues. There was also a detailed drug and alcohol
assessment dated 10 November 2014. That report indicated that, while on bail since
September 2013, he had complied with bail conditions not to consume alcohol or
drugs, at least to the extent that during that time he had avoided intoxication. At the
time of that report, he was enrolled in an anger management course. He had left
school at 14, describing his academic performance at school as “shocking”, leaving
school without any credits. The report indicated that he had worked consistently
since leaving school, placing a high value on it, and that he recognised a connection
between his use of intoxicants and crime. The report stated “he appears socially well
engaged and supported, and in full employment. Seemingly future focused, he is
looking to make lasting changes, and requesting to attend supportive treatment”.
Those statements were consistent with information provided in the pre-sentence
report. The Court also had a letter from the manager of a rugby league club. She
referred to him as an asset to the team both on and off the field. She said that she
had spoken to him to see how “we can overcome this downfall to better himself and
set goals for his future”.
[15]
At the time of the offence, one of his co-offenders, Mr Devlin, was aged 40.
He had an extensive list of previous convictions including a number of breath
alcohol charges, convictions going back some considerable time for fighting in a
public place, common assault, male assaults female and burglary. Offences in 2011
included possession of an offensive weapon, intent to intimidate and burglary. The
summary of facts referred to him as a sickness beneficiary.
[16]
Others said to be involved were Robert Karetai, a 28 year old presser and
Rewi Karetai, a 36 year old forestry worker. I was told that one of these people had
defended the charges and been acquitted. I infer from the summary of facts it was
Robert Karetai who was acquitted. The summary of facts referred to Rewi Karetai
admitting he had kicked the door in, grabbed the victim by the throat and assaulted
him. I infer it was this Mr Karetai who was sentenced to 11 months home detention.
The sentencing Judge’s approach
[17]
The sentencing Judge considered the offending fell within band three of the
guideline case of Nuku v R.4 On the appeal there was no issue with the Judge’s
finding of aggravating features common to both Mr Devlin and Mr Chambers,
namely, the element of premeditation, multiple attackers, the invasion of the victim’s
home, the attack to the victim’s head, the vulnerability of the victim outnumbered
and alone in his own home and the entire episode being the result of vigilante action.
[18]
The Judge, however, decided there were aggravating features relating to
Chambers’ involvement which resulted in him adopting a starting point for
Chambers’ offending of two years and three months, compared to a starting point for
Devlin of two years and two months.
Discussion
[19]
On my reading of the summary of facts, I consider the Judge was in error in
making that distinction. Firstly, he referred to the fact that, during the incident Mr
Chambers had questioned the victim and this led to the victim being further
assaulted. Before me there was no dispute that Mr Chambers had been questioning
the victim. This indicated he was a participant in what was going on and not simply
a bystander as he had suggested to the probation officer. His participation in this
way meant he was guilty of the charges he faced. There was nothing in the summary
of facts to indicate Mr Chambers knew or should have foreseen that this questioning
would lead to someone else further assaulting the victim. At around this time, it was
accepted that Mr Chambers had told others to stop their assault. The other person’s
assault, after Mr Chambers’ questioning of the victim, was an aggravating feature as
far as that other person was concerned but, in my view, should not have been treated
as an aggravating feature of Mr Chambers’ offending.
[20]
The Judge also considered that Mr Chambers’ involvement in making the
victim go to the bathroom and wash his hands, accompanied by statements that he
should not go to the Police or it would make matters worse, was also an aggravating
feature.
4
Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
[21]
Again, the fact that Mr Chambers took the initiative in taking the victim to
the bathroom and had this conversation with him, points to the fact that Mr
Chambers was not simply a bystander in the company and under the influence of his
older relatives. Nevertheless, I consider there was an insufficient basis for the Judge
to conclude that Mr Chambers’ involvement in this way had all the sinister
motivation which the sentencing Judge ascribed to him. The summary of facts
referred to Mr Chambers telling the bearded man to let the victim go. In taking the
victim to the bathroom, Mr Chambers was also taking him away from the place and
the people who had been assaulting him. In washing his own hands, Mr Chambers
cannot have been physically restraining the victim. The Judge treated Mr Chambers
as being involved in removing evidence and he may have considered Mr Chambers
was threatening the victim. That was not the only or necessary inference that could
be drawn from all that had happened, as recorded in the summary of facts. Given Mr
Chambers had not actually injured the victim, that he had not joined with others in
trashing the victim’s home and that he had told the bearded man to let the victim go,
Mr Chambers may well have said what he did to the victim because he genuinely did
not want the others to make matters worse for the victim. Even if Mr Chambers was
discouraging the victim from going to the Police, in my view, that would not make
his involvement in the assaults more serious.
[22]
Given that Mr Chambers was sentenced on the basis that he had not himself
struck the victim and, with Mr Devlin, had told others to stop hitting the victim, I do
not consider there were aggravating features associated with his offending which
required the Judge to adopt a starting point greater than that adopted for Mr Devlin.
In that sense, the Judge fell into error. While that resulted in a higher starting point
of only one month, the distinction drawn between the two offenders may also help to
explain the extent of the ultimate and significant disparity in their overall sentences.
[23]
I consider there was another error on the sentencing. Set out below are
relevant paragraphs from the sentencing notes:
[30]
Mr Chambers, I have taken a starting point of two years and three
months’ imprisonment for you. You were on bail at the time of the
offending, bail for offences involving violence. I uplift the starting point by
three months accordingly. That comes to a sentence of two years and six
months’ imprisonment. In respect of the other charges, intentional damage,
assault on police, assault under the Crimes Act 1961 and escaping I uplift the
sentence by six months for the totality of that offending, to a total sentence
of three years’ imprisonment.
[31]
In mitigation you offered to go to restorative justice. For some
reason the conference has not been advanced but I give you credit for your
willingness to attend. You are also willing to pay reparation.
[32]
In terms of your plea, your plea of guilty on the intentional damage
[sic] and burglary charges was late and you are not entitled to a full credit
accordingly. You entered a guilty plea at an early stage to the earlier
charges, charges that occurred on 7 September. Balancing that I give you a
20 percent reduction for your guilty plea. That reduces the sentence to one
of two years and three months’ imprisonment. I reduce that further by a
further month for the totality principle.
[24]
The starting point of two years and three months’ imprisonment was for the
injuring with intent/burglary incident of 26 September 2013. The Judge’s following
words “you were on bail at the time of the offending” must therefore refer to the
offending that occurred on 26 September 2013. The uplift of three months for
supposedly being on bail at that time must therefore relate to that offending. Later
on, the Judge dealt with “the other charges” referring to the incidents that occurred
on 7 September 2014. He does not refer to Mr Chambers being on bail at the time
those offences were committed.
[25]
The assault with intent to injure and burglary charges related to an incident
that occurred on 26 September 2013. The charges that occurred on 7 September
were the charges of escaping custody, assaulting Police, etc., that arose out of
incidents on 7 September 2014.
They were thus not “earlier charges”.
Mr
Chambers’ criminal record shows that, before the injuring with intent/burglary
incident of 26 September 2013, he had last appeared in Court and been sentenced on
25 July 2013 for an offence of being an unlicensed driver failing to comply with a
prohibition, an offence committed on 11 May 2013.
[26]
It was not suggested in the summary of facts for the injuring with
intent/burglary charges that Mr Chambers was on bail at the time. The Crown did
not refer to this as being an aggravating factor in relation to that offending. In their
submissions for sentencing, the Crown referred to Mr Chambers being on bail as an
aggravating factor only in relation to the later charges arising out of the incidents on
7 September 2014.
[27]
I thus find the Judge made a material error in proceeding on the basis that Mr
Chambers was on bail at the time of his involvement in the injuring with
intent/burglary incident and that he was on bail for offences involving violence. I
consider this mistake would have significantly reduced any credit the Judge might
otherwise have given Mr Chambers for positive aspects of his character and the
potential benefits that might have been obtained from a sentence short of
imprisonment.
[28]
It was also submitted for Mr Chambers that the sentencing Judge had given
him insufficient credit for his guilty plea, remorse and positive aspects of his
character.
[29]
With Mr Devlin, the Judge uplifted the starting point from two years and two
months to two years and six months’ imprisonment because of his relevant
convictions for burglary, possession of an offensive weapon and intimidation. The
Judge then gave him credit for mitigating factors, the fact he had obtained work, had
disassociated himself from his co-offenders, his offer to make amends and his
willingness to attend restorative justice.
[30]
The Judge noted Mr Devlin’s initial plea of not guilty, a breach of bail and his
rejection of an earlier sentencing indication. He allowed a 15 per cent credit for Mr
Devlin’s guilty plea leading to an appropriate end sentence of 24 months.
Ultimately, however, the Judge imposed a sentence of 10 months’ home detention
and 100 hours’ community work.
[31]
Ms McHugh, for Mr Chambers, submitted that Mr Chambers should have
been given credit for the fact he had, not long after he was charged, offered to assist
the Police by giving evidence identifying the bearded man who had been involved in
the events of 26 September 2013. She also submitted there had been inadequate
recognition of his relative youth and the likely influence of Whānau Aroha as
referred to by the Court of Appeal in R v Watson.5
5
R v Watson CA360/90, 19 April 1991.
[32]
The Crown said the offer of assistance was not taken up by the Police and at
nearly 20, when the offending occurred, his youth could not be a significant factor in
the sentencing.
[33]
I consider the factors referred to by Ms McHugh should have been
recognised and taken into account to some extent in mitigation.
[34]
The Judge gave Mr Chambers a credit of 20 per cent overall for his guilty
pleas on all charges, including those arising out of the later incident in respect of
which he acknowledged a guilty plea had been entered at an early stage.
Mr
Chambers’ counsel accepted the overall discount of 20 per cent was appropriate.
[35]
The Judge made no mention of Mr Chambers being given credit for the
reparation he was able and willing to pay although orders were made requiring Mr
Chambers to pay reparation of $600 in relation to the injuring with intent/burglary
charge and $1,058 in relation to the other charges. Although the Judge was aware
that Mr Chambers had money available to pay certain reparation, requiring him to
pay the sum of $1,058 immediately, he gave him no apparent credit for the fact that,
in contrast to Mr Devlin, Mr Chambers had made an effort, between the offending
and sentencing, to save money so he could pay reparation. His employer had
advised the probation officer that Mr Chambers had told him “about his court
appearance and has asked if he can have as much work as possible because he has to
pay reparation”.
Mr Chambers’ counsel advised me that, at the time of the
sentencing, the defendant had $1,000 available from his own savings to pay
reparation for that amount. Ms McHugh had also told the sentencing Judge that his
family had arranged to have a further $1,500 available for immediate reparation.
This was consistent with his having the benefit of continuing family support despite
the trouble he had been in.
[36]
The fact he had these savings is consistent with the Judge making orders for
immediate payment of a substantial amount in reparation. In contrast to what Mr
Chambers had been able to achieve, Mr Devlin was ordered to pay reparation of $80
immediately with the balance of $500 for emotional harm reparation to be paid at
$50 per week.
[37]
Mr Chambers had the support of his employer. Mr Harrison had provided a
letter to counsel in which he confirmed Mr Chambers was employed by Awarua
Synergy where he was regarded as a “valued, highly trained and productive member
of our team”. His employer indicated he was aware of Mr Chambers’ offending but
was nevertheless “willing to work with him through his continued employment with
us at Awarua Synergy”.
[38]
Were the Court dealing just with the injuring with intent/burglary matters, I
consider that, as with Mr Devlin, an appropriate starting point for the offending
would have been two years and two months’ imprisonment. I would have given him
a credit of five months for the efforts he had made in relation to his employment, the
payment of reparation, the assistance and the assessment he had sought in respect of
a potential alcohol problem and his involvement in anger management counselling.
That would have reduced the sentence for this offending to 21 months.
The 2014 offending
[39]
Mr Chambers also had to be sentenced in respect of the offending which had
occurred on 6 September 2014 in Invercargill. At the time he was aged 20. That
offending reflected immaturity, his problems with anger and a propensity to
violence.
[40]
The summary indicated that, at approximately 2.00 a.m. on Sunday 7
September 2014, Chambers had gone into a bar in Invercargill. As he entered the bar
he noticed his partner with another male. He began arguing verbally with his
partner. Security staff intervened and removed him from the premises. On the way
out he punched at the door, smashing a large pane of glass.
[41]
Outside, an acquaintance of the couple spoke to Mr Chambers. This made
him angrier. He walked to a large shop front window, smashing it with a punch. He
then proceeded down the street, was stopped by a Police patrol and was arrested in
respect of the damage to the shop window and for entering licensed premises in
breach of bail conditions. As Police attempted to apply handcuffs, Mr Chambers ran
off. A female member of the public, who had seen what had happened, attempted to
stop him from fleeing. He ran straight into her with his arm out, knocking her onto
the road.
[42]
The Police reapprehended him. He was placed in a patrol car and transported
back to the Invercargill Police Station. Upon being removed from the vehicle, Mr
Chambers lashed out at the two policemen, kicking them both in the shins.
Discussion
[43]
Mr Chambers was arrested, appeared in Court on 8 September 2014, was
remanded in custody until 18 September 2014 and pleaded guilty at an early stage to
those charges. By the time he was sentenced on 25 February he had accumulated the
savings he needed to pay for all the damage he had done to the windows. The
sentencing Judge considered this offending required an uplift of six months over the
sentence for the lead offence but, as explained above, had not taken into account the
fact that Mr Chambers was on bail at the time of this offending. In going into the
bar, it seems he was also in breach of a condition of his bail in relation to the earlier
lead offending. I consider that, with an appropriate uplift because this offending
occurred while he was on bail, but with a credit for the reparation he was able to pay
immediately, the appropriate uplift for this offending was still six months.
[44]
On that basis, an appropriate sentence for all offending would have been 27
months. He was entitled to a credit of 20 per cent overall for his guilty pleas, so that
an ultimate sentence of around 21 months would have been appropriate.
[45]
The pre-sentence report recommended a sentence of home detention. The
report also indicated community work would be available.
Mr Chambers had
completed a sentence of 60 hours’ community work in 2013 without issues. The
report noted that home detention might limit his ability to continue with his current
employment but considered the possibility of a home detention sentence in
conjunction with employment could be assessed by his supervising probation officer.
I consider that, when Mr Chambers was sentenced in February 2015, it would have
been appropriate to sentence him to a period of home detention with an additional
period of community work as was imposed with Mr Devlin.
[46]
I find the sentences imposed for a total of two years and two months’
imprisonment were thus manifestly excessive.
The appropriate sentence type
[47]
Ms McHugh suggested home detention should be considered now and that
there should be an opportunity for the probation service to consider whether there is
an address where Mr Chambers could serve a sentence of home detention. There is a
potential problem in that the address where Mr Chambers would have been able to
serve a sentence of home detention in February 2015 was one where he lived alone.
It may well now be unavailable.
[48]
Assuming he is able to return to his previous employment, it is likely there
would be difficulty with him doing that work while serving a sentence of home
detention.
[49]
There is also the fact that Mr Chambers has now been in prison for a period
of more than four months. There is an issue as to how that period in custody should
affect the length of any term of home detention or community work that might be
imposed now. The difficulty the Court faces now is similar to the situation the Court
of Appeal faced in the case of R v Costello.6
[50]
The seriousness of the offending needs to be recognised. Against that, there
were clear indications that Mr Chambers was motivated to do what is required to
avoid involvement in further offending and that he has useful support available to
him. Further, if he is not constrained through sentences of home detention and/or
community work, Mr Chambers will be able to make the most of employment
opportunities which should be available to him.
[51]
I consider Mr Chambers should still be dealt with through a sentence of
imprisonment but with that sentence being shorter than it might otherwise have been
to avoid too great a disparity between the sentences imposed on co-offenders.
6
R v Costello [2009] NZCA 403.
[52]
It is also shorter to recognise my decision that, in February 2015, the
offending should have been dealt with by imposing a sentence of home detention and
community work.
Conclusion
[53]
The end result is that the appeal is allowed. In substitution for the earlier
sentences, I sentence Mr Chambers as follows:
(i) On the injuring with intent and burglary charges, Mr Chambers is
convicted and sentenced to imprisonment for a period of 17 months. He
is also ordered to pay reparation of $100 and an emotional harm payment
of $500. Having regard to the assistance available from his family, I
order that these sums are to be paid by 31 November 2015.
(ii) On the escaping charge, Mr Chambers is convicted and sentenced to
imprisonment for four months.
(iii) On each of the assault on Police charges, Mr Chambers is convicted and
sentenced to imprisonment for one month.
(iv) On the common assault charge, Mr Chambers is convicted and sentenced
to imprisonment for one month.
(v) On each of the intentional damage charges, Mr Chambers is convicted
and sentenced to imprisonment for 1 month.
(vi) On charging document 2516 for intentional damage, Mr Chambers is
ordered to pay reparation of $794 forthwith. On the other intentional
damage charge 2515, Mr Chambers is ordered to pay reparation of $264
forthwith. (I assume those sums have been paid already.)
[54]
The above sentences of imprisonment are to be concurrent. He thus now
faces a sentence of imprisonment of 17 months against which he will receive a credit
for the time already spent in custody, both after the sentencing on 25 February 2015
and when he was initially remanded in custody in September 2014.
[55]
The standard conditions that apply to the sentence of imprisonment under s
93 Sentencing Act are to continue for a period of six months from the expiry of these
sentences. In addition, the following special release conditions are to attach to this
sentence of imprisonment:
(i) Mr Chambers is not to associate with or contact his co-offenders, Rewi
Karetai, Robert Karetai or Wiremu Devlin, without the prior written
approval of a probation officer.
(ii) Mr Chambers is to attend an assessment for department programme as
directed by a probation officer.
He is to attend and complete any
counselling, treatment or programme as directed by and to the
satisfaction of a probation officer.
These special conditions are also to continue for six months from the expiry of these
sentences.
A final issue: s 88 Summary Proceedings Act 1957
[56]
The other matter which I must deal with is Mr Chambers’ appeal against his
conviction and sentence to two weeks’ imprisonment for non-payment of fines of
$4,543.11.
[57]
This aspect of the appeal is advanced on the grounds that counsel had not
been heard on that issue and had not seen a s 88 Summary Proceedings Act 1957
report.
[58]
The Judge had a report from the Registrar pursuant to s 88 Summary
Proceedings Act advising that $5,443.11 was outstanding in fines, that Mr Chambers
was non-compliant and had made no effort to pay anything in respect of reparation
or fines since 2012.
[59]
The Judge dealt with the situation in a practical way of some benefit to Mr
Chambers. Through a short term of imprisonment attached to the longer term that
was being imposed, a penalty was being imposed for non-payment of fines but the
burden of those substantial unpaid fines was being removed. When Mr Chambers
finished his term of imprisonment, he would no longer have those fines hanging over
him. Mr Chambers has, nevertheless, appealed against that additional term of two
weeks’ imprisonment on the basis that, neither he nor his counsel had been given the
opportunity of considering alternative sentences or any report obtained under s 88
Summary Proceedings Act.
[60]
It was further submitted that the Judge could not impose a substituted
sentence because an assessment of his financial capacity had not been recently
completed as required by s 106E(1)(a) and the Judge could not have been satisfied
that all other methods of enforcing the fines had been considered or tried, or were
inappropriate. Ms McHugh also referred to s 106E(4) which states:
In sentencing a defendant for non-payment of 1 or more fines under this
Part, the Court must impose the least restrictive sentence that is appropriate
in the circumstances.
[61]
In response, the Crown referred to a judgment of Lang J in Herlund v Police.7
Lang J was prepared to treat all the information which the Judge had available to him
in that case as being sufficient to constitute an “assessment” for the purposes of s
106E(1)(a). The information the Judge had was similar to the information before the
sentencing Judge in this instance. Here, the sentencing Judge had the Registrar’s
report setting out the current position, knew how long he had been in default, had the
benefit of the pre-sentence report and other information as to Mr Chambers’
employment. He knew there had been an offer to pay reparation with savings and
assistance from Mr Chambers’ family. He also knew Mr Chambers was being
sentenced to imprisonment so that he would not be able to continue in employment
for the immediate future and, thus, would not be able to pay fines from his wages in
the immediate future.
7
Herlund v Police [2013] NZHC 1531.
[62]
I was also provided with the Court of Appeal judgment in R v Costello.8 It
involved an appeal against a sentence of four months’ imprisonment for being an
accessory after the fact to an offence by his brother of escaping from lawful custody,
and a sentence of six months’ imprisonment for non-payment of fines of
approximately $60,000. Most of those fines were for traffic-related infringements.
The Crown accepted the Court had no power to imprison for non-payment of fines,
referring to s 106E Summary Proceedings Act. Section 106E(2), quoted by the
Court of Appeal, stated:9
A defendant could not be imprisoned for non-payment of fines unless –
(a) a statement of means has been completed by the defendant within the
immediately preceding 14 days; and
…
(g) the Judge is satisfied that the defendant has the means to pay the fine.
[63]
The Crown and the Court of Appeal accepted that the sentencing Judge could
not have been satisfied the defendant had the means to pay the fines. The Court of
Appeal quashed the sentence of six months’ imprisonment for non-payment of fines,
reinstated the fines and referred the matter back to the District Court to reconsider a
Registrar’s report made under s 88(2)(b) Summary Proceedings Act.
[64]
The provisions of s 106E(2), which the Court of Appeal referred to in its
judgment, were those that applied before the enactment of the Summary Proceedings
Amendment Act 2011.
[65]
Following that amendment, pursuant to s 106E(1) a District Court Judge
cannot impose a substituted sentence on a defendant for non-payment of fines unless
the Judge has considered a recently completed assessment of the defendant’s
financial capacity and is satisfied that all other methods of enforcing the fines had
been considered, tried and were either inappropriate or had been unsuccessful.
[66]
Pursuant to s 106E(7), a Judge cannot impose a substituted sentence of
imprisonment unless the defendant has the opportunity to be legally represented in
8
9
R v Costello, above n [45].
At [2].
relation to the possibility of imprisonment, the warrant of commitment for
imprisonment can be executed immediately and either the defendant was in prison or
is about to be sentenced to imprisonment for another offence, or the Judge is
satisfied the defendant had the financial capacity to pay the fine or fines.
[67]
I consider Lang J’s approach, with regard to whether there had been the
necessary assessment, was commendable from a practical point of view. It was
however necessary for Mr Chambers’ counsel to be able to advise and represent Mr
Chambers on a fully informed basis. She should have had the opportunity to make
submissions in the context of the sentences which the Judge had imposed for the
other offending. It appears this did not happen and, on that basis, the appeal against
the sentence of imprisonment for two weeks for non-payment of fines would have to
be allowed; the fines reinstated and the matter remitted back to the Registrar of the
District Court for a report on the whole situation and for the matter to be considered
afresh. Mr Chambers may nevertheless consider, with the benefit of fully informed
legal representation, that he was fortunate the Judge dealt with significant unpaid
fines in the way that happened.
[68]
I propose to reserve my judgment on this aspect of the appeal to allow Ms
McHugh to discuss this aspect of the appeal with Mr Chambers with knowledge of
the sentence for the other offending which he must now complete. If he does not
wish to pursue his appeal in relation to that substituted sentence, it will stand. His
total sentence of imprisonment will thus be extended by a further two weeks.
[69]
I direct the Registrar to arrange a telephone conference with counsel for both
the appellant and the Crown to discuss this aspect of the appeal in approximately two
weeks.
Solicitors:
AWS Legal, Invercargill
Crown Law Office, Wellington