Bartlett-Torr v Davis, unreported; SCt of WA; Library No 6148; 24 December 1985

Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447

R v Richmond (1920) LVR 9

R v Timms [1921] VicLawRp 89; (1921) VLR 503

R v Wicks (1989) 44 A Crim R 147

Veen v The Queen (No 2) (1988) 164 LCR 465

1 Mr Jervis owned a boat. He left it on a trailer at his house. It was worth $10,000 and much to his distress, no doubt, on 1 December 1997 it was stolen. However, he was more fortunate than some. Police recovered the boat and trailer, although not the outboard, at the appellant's house on 6 April 1998. Work had been done to disguise it. The identification numbers had been removed and the boat sanded down. The motor was missing.

2 The appellant was charged with stealing or alternatively receiving. He stood trial on 17 February 1999. He was convicted of receiving and fined $7000. On this fine he appeals on the following grounds.

(i) The amount of the fine was manifestly excessive having regard to the value of the property concerned, the fact that it was recovered and the applicant's lack of any relevant criminal history.

(ii) Account was taken of an irrelevant consideration; namely, that his Worship commented that the applicant should be imprisoned for perjury.

4 The Magistrate found that the appellant had possession because he was going to do a professional paint job and disguise the boat. The appellant is by trade a panel beater. The Magistrate was unable to determine whether he was disguising the boat for himself or for the thief but considered that it did not make much difference.

5 Like other sentencing dispositions a fine serves a number of purposes. It has elements of punishment. It may provide a deterrent, both to the individual and more generally to the community. In these days of increasing prison populations a fine may provide a realistic option to achieve the principles of sentencing in circumstances where the offender's behaviour should be punished severely or where the circumstances do not require a custodial term.

6 Where, as here, there is a crime for economic gain, an economic sanction such as a fine is especially appropriate if the circumstances do not otherwise justify imprisonment. In such cases, however, a low fine may simply be regarded by the offender and by others as an incident of business.

7 Therefore, a proper approach is to assess the offence first to determine whether a fine is the sentencing option which best meets the circumstances of the case. Once that has been determined, attention should focus on the amount of the fine. The factors to be considered include:

(2) the disapproval of the community for the criminal behaviour, usually referred to as punishment;

(3) the need for deterrence, both general and particular;

(5) where the crime is economic or commercial, the need to ensure that a fine is not simply a risk tax to be paid if caught.

8 The court must also take account of an offender's capacity to pay. This will, on occasion, have the effect of varying downwards the amount of the fine actually ordered below the normally appropriate level. This latter aspect is not strictly in mitigation; it is rather to ensure that the general principles have fair application in a particular case. In cases where this occurs it will often be helpful for a judicial officer to state what amount of fine would have been imposed but for the offender's incapacity to pay.

9 From these general principles, I turn to the particular facts of this case. The appellant was a party to disguising, by repainting, a stolen boat so it could be sold. His actions went well beyond simply storing the vessel which he had for six weeks in any event. If the police had not intervened, the owner would never have seen his boat again. Where recovery is without the assistance of the appellant, it weighs little in mitigation. Nevertheless, it is a relevant factor or circumstance in the overall offence.

10 There was an economic factor in this crime. This economic factor is often an incident of the crime of receiving. Matters personal to the appellant were good. He had no record of any significance. He was a mature man in his own business as a panel beater for 16 years. He had a current injury to his shoulder which precluded work at present. In his sentencing remarks his Worship said:

"You can't really avail yourself of any of the mitigatory factors - - that's not quite true, not all of them. There's some things that mitigate this. One is that the record you have got goes back over 25 years but there's no remorse here. Obviously he's created a story and been untruthful in court. For my mind that should get you 12 months in gaol or 2 years for perjury just for being untruthful in court, but we can't take that into account obviously but certainly there's not the plea in mitigation that comes from a plea of guilty. There'll be a fine of $7000..."

11 The question of the comment about perjury was raised in the grounds of appeal. A sentence is not to be equated with a judgment. It contains aspects of homily and may be seen as a warning to the appellant as to his behaviour and the nature of his evidence. While the value of making such remarks may be questionable, in the light of the fact that his Worship said that he wasn't going to take it into account I am not prepared to find that he nevertheless in some way did take into account the irrelevant consideration as to perjury and so ground (ii) fails.

12 I return to ground (i). The fine of $7000 was close to the maximum. The principle that the maximum is to be reserved for the worst cases has little applicability to fines, although it is nevertheless a factor. That is because the worst cases when they are indictable offences triable summarily may proceed on indictment to attract a higher penalty.

13 Having weighed up all of the factors and all of the circumstances, I have reached the conclusion that the Magistrate's discretion did miscarry. Although this was a serious offence of its type with a significant economic component, the appellant was effectively a first offender with good antecedents. If there were no matters of mitigation, a fine of $7000 would nevertheless be beyond the range of fines commonly imposed for an offence of this type, involving property of about $6500, when the property has been recovered and in circumstances where the offender was not responsible for the stealing.

14 I consider that the offence warranted a fine in the vicinity of $5000 if there were no matters of mitigation. I would, however, reduce that figure in this case because of the matters personal to the appellant and impose a fine of $3000. To that extent the appeal is allowed.