Sentencing Act 1995, s 59

1 JUDGMENT OF THE COURT: This was an application for leave to appeal against sentence. At the hearing, the Court dismissed the application, reserving its reasons. These are those reasons.

2 On 10 September 1999, a jury found the applicant guilty on two counts of attempted fraud, and he was fined $7,500 in respect of each charge, making a total of $15,000. He was given 6 months to pay, and it was ordered that enforcement be under s 59 of the Sentencing Act 1995. That section in terms refers to fines imposed by a "superior court", which is defined by s 4(1) to include the District Court. By s 59, the court not having set a shorter period, the effect of this order was that if no part of the fine should be paid before the expiry of the time allowed for payment of 6 months, the applicant was to be imprisoned, subject to the terms of the section, for 100 days.

3 The attempted frauds of which the applicant had been convicted involved false claims, made by the applicant in the knowledge that they were false, on two different insurance companies. The applicant had refurbished and re-equipped a kitchen, and he sought to recover the cost by fabricated claims of accidental water damage lodged under two policies of insurance. The amounts of the claims were $5,375 and $6,340, a total of $11,715, and it is plain the Judge considered an approximately equivalent fine was appropriate. The applicant was aged 39, with a de facto wife and her child of 8. He had arrived in Australia 12 years previously from the Balkans, and had no prior convictions. After the jury returned its verdicts of guilty, counsel for the applicant told the Judge his client had confirmed the antecedents report, and stated that his income was $35,000 per annum. Counsel submitted a fine would be an "appropriate disposition" of the matter.

4 During the discussion which ensued between bench and bar, the applicant's possession of property, subject to mortgage, was mentioned, and the Judge specifically checked the currency of this information with the applicant's counsel, who said (presumably after referring to his client - through the interpreter, who was present, if necessary): "He instructs me, your Honour, that he is still the owner of Manning Road ... in Como ... . He is still the owner of 15/19 Labouchere Road, South Perth. He says that the combined mortgages on these two properties are some $212,000". Counsel then asked leave to check with his client "about the vehicle", and the Judge commented "a significant fine in respect of each count" would be appropriate, adding: "But it's a matter of working out how that is going to be met".

5 Importantly, counsel at this point said: "Yes, perhaps I could ask him through the interpreter, your Honour. He did inform me that he would be asking to pay in instalments, but he can clearly make that arrangement ... ." The Judge's concern to know the applicant could pay, and the possibility of imprisonment "until it is paid" were mentioned, causing counsel, as the transcript shows, to refer to his client once more, after which he said: "He has a vehicle which he estimates is worth some 8 to 9 thousand dollars".

6 The Judge then made it clear he accepted that the applicant did not have the cash to pay forthwith. His Honour suggested an allowance of 6 months time to pay under s 59 "may be the simplest thing", and would permit him to "make arrangements to take a loan", if necessary. Counsel responded: "Yes, certainly, your Honour".

7 Despite the Judge's care to explore the avenues open for payment of the total fine before determining its amount, which these passages from the transcript demonstrate, he was misinformed. In the circumstances, it seems to us the applicant must bear the responsibility for that. However, he has now come before this Court with, essentially, a single ground of appeal - that he had actually been made bankrupt by a sequestration order some two months before he was dealt with, and therefore was unable to pay the fine imposed, or any fine. On this ground, he claimed the Court should set aside the order of the sentencing Judge.

8 We accept that the applicant's bankruptcy was plainly a circumstance very relevant to the imposition of the fines which were imposed on him. Indeed, the undesirability, not only from the bankrupt's point of view, but also from the point of view of the equitable distribution of his estate amongst his creditors, of his being imprisoned because of his inability to pay a fine, with the consequence of being prevented from contributing towards his debts out of his earnings, is the basis of s 60 of the Bankruptcy Act 1966 (Cth), which, however, is not applicable to the present case, since a provable debt is not involved. But, even where s 60 does apply, the legislation reserves to a court a discretion to refuse the bankrupt relief: Re Lattouf [1994] FCA 1342; (1994) 52 FCR 147; Re Keogh (1995) 61 FCR 591 at 599. Indeed, in Re Lattouf, a Full Court suggested s 60(1)(b) would become a "rogues' charter" if the discretion were too readily exercised in the bankrupt's favour. In Re Keogh at 599, a case where "a debtor might be shown to have inveigled a criminal court into granting a bond upon representations made without any intention of honouring them" was given as an example of a situation in which relief might be refused.

9 Here, the Judge recognised the need to consider the applicant's means, and sought information. Despite the use of an interpreter, the truth was not revealed. Even now, the applicant has not put before this Court clear and comprehensive information as to the extent of his bankruptcy, and the date on which it is likely to end. For all we know, his debts at this time may be relatively small.

10 In Cheshire (1994) 76 A Crim R 261 at 269 - 270, it is stated in the joint judgment of the Court of Criminal Appeal of Victoria (Phillips CJ, Crockett and Nathan JJ):

"We have no doubt that the judge was entirely correct in his decision to impose a fine. We consider that in all the circumstances including the measure of the applicant's culpability an appropriate fine would be proportional to his criminality. Nor do we consider that his discretion miscarried. Counsel was well aware of the real possibility that a fine would be imposed. Realistically, if imposed, it was likely to be substantial. If it were considered that the amount of it would cause financial embarrassment by creating a substantial or unacceptable financial burden it was for counsel to alert the judge to such a circumstance.

Plainly, we think, it is for the offender to put material before the court relating to financial circumstances: see Higgins (1988) 10 Cr App R (S) 144. If he fails to do so he can hardly expect then to be entitled to a re-assessment of his penalty, by an appellate court. At least that must be so, we think, if there are grounds for inferring that the amount of the fine is not such as to cause a burden to the offender which is disproportionate to his criminality.

Such an inference may be drawn in this case. When the sentence was passed no demur was raised by counsel as to the applicant's alleged inability to pay (so that in such event the sentence would be no more than the imposition of the statutory consequences of the applicant's defaulting in payment of the fine: Reardon v Nolan [1983] FCA 260; (1983) 74 FLR 309). Instead counsel simply asked for a month's stay of payment. The stay was granted unopposed.

We consider that some observations of King CJ when speaking in effect for the Court of Criminal Appeal of South Australia in Belcher (1981) 27 SASR 46; 3 A Crim R 124 are of relevance notwithstanding that there was no statutory provision in that State equivalent to s 50(1) of the Victorian Sentencing Act 1991. His Honour said (at 50-51; 128):

'... before imposing a fine, a judge should indicate that he is considering that possibility and should give the prisoner the opportunity of satisfying him that he is without the means to pay it. I think that this view is supported by the case of Wright [1977] Crim LR 236, in which the prisoner simply provided the court with a figure for his earnings, without explaining his outgoings. The Court of Appeal stated that although "it is ... a fundamental principle of sentencing that financial obligations must be matched to the ability to pay ... that does not mean that the court has to set out on an inquisitorial function and dig out all the information that exists about the appellant's means. The appellant knows what his means are and he is perfectly capable of putting them before the court." ' "

(Section 50(1) of the Sentencing Act 1991 (Vic) is a provision requiring a sentencing court to take account of the offender's financial circumstances and the burden a fine will impose on him.) See also Reardon v Nolan [1983] FCA 260; (1983) 74 FLR 309, noting that we are not here concerned with legislation to the effect of that there discussed.

11 In the present case, we are satisfied that enforcement of the fine would not involve the applicant suffering any burden disproportionate to his criminality. Were we to allow the application and proceed to set aside the fines imposed, substituting under s 689(3) of the Code "a different sentence", we should consider that a sentence not less than the 100 days of imprisonment by which the fine may be enforced under s 59 of the Sentencing Act would not be inappropriate. Counsel for the applicant urged upon us that the Court should not, pursuant to s 689(3), increase the severity of a sentence. She then said that any term of imprisonment would be more severe than a fine. But imprisonment for 100 days, as a possibility, is inherent in the sentence which is impugned, and the sentencing Judge intended that to be so, for he adverted to s 59. Accepting that it would be unusual to increase the severity of a sentence under s 689(3), power has been conferred upon the Court to do so in a special case. In Stanton v R, unreported; CCA SCt of WA; Library No 920298; 28 May 1992, Murray J (with whom Malcolm CJ and Rowland J agreed) said: "It is most exceptional of course that in dealing with a successful appeal against sentence by a convicted person, the Court of Criminal Appeal should impose a more severe sentence. But this is a case where I think that course to be exceptionally warranted". It was an appeal in which the proper application of the totality principle led to a reduction of the total period of imprisonment for a number of crimes, but the Court considered the correct way in which to achieve that result was to vary the individual sentences, making all but two of them concurrent with those two while increasing the length of a number of them. Cf McDonald [1994] FCA 956; (1994) 71 A Crim R 370 at 371 - 372, 381, where the Full Federal Court (Spender, Burchett and Higgins JJ) took the same course. The circumstances of this case are quite different, but the power exists for special cases, and, at all events, imprisonment for the term contemplated by s 59 could hardly be described as more severe, if the applicant is really unable to pay the fine, as he contends.

12 In the light of all these considerations, the proper order was that which we made at the hearing, that the application be dismissed.