Nelson v Meredith [2001] NTSC 4

JOSHUA NELSON, KASSA WHITE, MARTIN PATRICK, TOBY MARTIN MICHAEL MCDONALD, TOBY MARTIN AND RAPHAEL RONSON

[1] These appeals against penalty all raise an issue which is sufficient to dispose of all of them. Given the course which I propose to adopt, it is unnecessary and undesirable to consider other grounds.

[2] The appellants each pleaded guilty before the Court of Summary Jurisdiction sitting at Lajamanu for a variety of offences. In each case his Worship convicted the appellant and imposed fines, fixed terms of imprisonment in default of payment and allowed time to pay.

[3] The Sentencing Act provides:

"17(1) Where a court decides to fine an offender, it shall, in determining the amount of the fine and the way in which it is to be paid, take into account, as far as practicable -

(a) the financial circumstances of the offender; and

(b) the nature of the burden that its payment will impose on the offender."

[4] It will be noted that the information specified goes both to the amount of the fine and the way in which it is to be paid.

[5] In none of these cases was the Court provided with the details it was required to take into account. At best, counsel then appearing for each appellant indicated the income being received by his client. The words "financial circumstances" go beyond earnings. They include as well, for example, assets, debts, monetary commitment and cost of living including money expended for the maintenance of dependents.

[6] The "nature of the burden" that payment of a fine will impose is a more difficult concept if it is meant to go beyond the obvious depletion of money. The nature of the burden will depend upon the circumstances of each case.

[7] Clearly it was the intention of the legislature that fines not be imposed without regard to those matters which call into question the indiscriminate imposition of a fine with regard only to what may be regarded as a "tariff".

[8] The other major question which arises is as to the way in which a court is to be informed about those matters. Obviously, there is an obligation on counsel for an accused to take instructions and inform the court about them. Failing that, it seems to me that there is an obligation on the court to enquire, a fortiori, if the offender is not legally represented.

[9] It is provided in s 17(2) as follows:

"A court is not prevented from fining an offender only because it has been unable to find out the matters referred to in subsection (1)."

[10] "The use of the words "unable to find out" import that there is a duty on the court. Amongst other things the Oxford English Dictionary defines "find out" as (a) to discover by attention, scrutiny, study etc; (b) to come upon by searching or enquiry. All of that brings about the notion of activity by the court to ascertain the required information, not mere reception of information if any is offered.

[11] It is possible that the parliament did not intend to use the words "find out", but they are there and must be construed in their context.

[12] In these cases it is not open to suggest that the court was "unable to find out", it is apparent that incomplete information was supplied and that no enquiry was made by the court in an effort to make up the deficiencies.

[13] In my opinion, the court was without jurisdiction to determine the amount of the fines and the way in which they were to be paid. The case must be remitted to the Court of Summary Jurisdiction for hearing, taking into account these rulings.

[14] Orders in each case accordingly.

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