Newcastle v Coffey [2000] NTSC 21

AND IN THE MATTER OF an appeal against sentence handed down in the Court of Summary Jurisdiction at Alice Springs

[1]

On 1 February 2000 the appellant was convicted of unlawfully damaging property contrary to s 251(1) of the Criminal Code and was punished by the imposition of a fine in the sum of $1000, together with a victim levy of $20. In default of payment the appellant was to be imprisoned for a period of 14 days.

[2]

The appellant appeals against the sentence on the bases (1) that it is manifestly excessive, (2) that the sentencing Magistrate erred in failing to take into account or to properly take into account the limited financial means of the appellant and (3) that he also erred by imposing a period of imprisonment in default of payment which was manifestly excessive and disproportionate to the objective seriousness of the offence.

[3]

In the course of the hearing before me Dr Rogers, on behalf of the respondent, conceded that the appeal should be allowed on the grounds that the fine was manifestly excessive and that the learned Magistrate did not have before him sufficient material to enable him to properly consider the financial circumstances of the appellant. Dr Rogers did not object to me receiving fresh material concerning the appellant's earning capacity and did not object to me proceeding to re-sentence the appellant on the basis of that information.

[4]

In my view the concessions were correctly made. Section 17 of the Sentencing Act requires that a court in determining the amount of a fine which is to be paid shall take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose on the offender. Whilst the Court is not prevented from fining an offender because it has not been able to find out what the financial circumstances of the offender are, or what is the nature of the burden that payment of a fine will impose upon the offender, the Court in this case proceeded in the absence of such information when it could have been provided.

[5]

In addition, in my view, the fine of $1000 in the circumstances of this matter, which involved damage described by his Worship as "trivial" (damage valued at $70 to a motor vehicle) and where there were mitigating circumstances, is manifestly excessive. The Crown conceded that to be so. I allow the appeal.

[6]

The real issue agitated on this appeal is a matter with which I will have to deal in re-sentencing the appellant and that is the assessment of the term of imprisonment (if any) which should be imposed in the event of default in payment of any fine imposed. Mr Kilvington, on behalf of the appellant, submitted that it was the regular practice of some magistrates to automatically impose a period of imprisonment of one day for each $50 of default. Dr Rogers indicated that her experience was to the same effect. There was no evidence on this topic and I make no finding in relation to it. However if such a practice has developed it is, in my opinion, an inappropriate one.

[7]

Section 85 of the Justices Act permits a court to impose a term of imprisonment in default of payment of a fine. Section 85 provides as follows:

"(1) When the Court adjudges the payment of any fine or sum of money, it may, in and by its finding of guilt or order, impose a term of imprisonment in default of payment.

(2) If the Special Act upon which the finding of guilt or order is founded directs or appoints any manner or term of imprisonment, the finding of guilt or order shall be framed accordingly.

(3) If no manner or term of imprisonment is so directed or appointed, imprisonment may be imposed and for any term which the Court thinks fit, not exceeding the time prescribed by section 81 with reference to the amount to be recovered.

(4) Where a person has not, under Division 2A, paid the full amount of 2 or more penalties and prescribed costs, or part of them, and the Court or Justice imposes terms of imprisonment in default, the terms of imprisonment shall be cumulative unless the Court or Justice otherwise orders."

[8]

Section 81 of the Justices Act provides that:

"(1) Whenever the payment of any fine or sum of money adjudged to be paid by any finding of guilt or order is by this or any other Act authorized to be enforced by imprisonment with or without distress, but no term of imprisonment is prescribed by any Special Act, the imprisonment shall be for such period as the Court or Justice issuing the warrant of commitment in its or his discretion thinks fit, within the limits fixed by the following scale:

_________________________________________________________

Where the sum adjudged to be The period of imprisonment

paid including the costs - shall be -

_________________________________________________________

Does not exceed $50 One day

Exceeds $50 One day and in addition one day

[9]

The appellant submitted that the expression "within the limits fixed by the following scale" in s 81(1) establishes the most severe default period which may lawfully be set as being one day per $50 or part thereof. The discretion which is created by the section and also that created by s 85(3) permits the Court or Justice to increase the rate per day from $50 to a greater amount per day.

[10]

The submission of the respondent was to the effect that, notwithstanding the clear expression of a discretion within s 81(1) and also within s 85(3), there is no discretion conferred upon the Court or Justice. The submission of the respondent was that the word within is to be read as meaning "inside, not out of or beyond, not transgressing or exceeding." It was then submitted that the phrase directs that the discretion operate within or inside the scale and, as the scale provides only one rate (ie one day per $50) and uses the expression 'shall' in relation thereto, there can be no discretion to exercise. It was submitted:

"The phrase within the limits fixed by the following scale therefore renders the discretion otiose. In other words, the legislature has conferred a discretion upon a Court or Justice issuing a warrant of commitment but the discretion cannot be used. It also renders s 85(3) meaningless because of the former's unambiguous language."

[11]

I reject this submission. Such an approach flies in the face of established principles of statutory interpretation. In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1980-81) 147 CLR 297 Mason and Wilson JJ said (at 320):

"The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the Courts look to the operation of the statute according to its terms and to legitimate aids to construction."

"But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions."

[13]

In K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 Mason J said at 315:

"... to read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context ... . Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise."

[14]

See also Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421-424; Commissioner of Taxation v Ryan [2000] HCA 4; (2000) 74 ALJR 471 at 487-488 per Kirby J.

[15]

In my opinion a reading of s 81 and s 85 makes it clear that the intention of the legislature was, in both circumstances, to provide the Court or Justice with a discretion in setting a default rate but to contain the exercise of the discretion within outer limits. When one considers both s 81 and s 85(3) of the Act it is clear that the legislature intended that the period of imprisonment imposed would be "within the limits" or, put another way, would not exceed, the period of imprisonment provided for in the scale. Section 81(1) provides that "the imprisonment shall be for such period ... within the limits" fixed by the scale. The legislature is thereby imposing a limit upon the duration of any period of imprisonment.

[16]

In relation to the sentencing process, where a fine is to be imposed, the scheme of the Act is that s 85(1) permits the Court to impose a period of imprisonment in default of payment. In the event that it proposes to impose a default period then the Court may, by virtue of s 85(3), impose any term which it thinks fit "not exceeding the time prescribed by s 81 with reference to the amount to be recovered". The reference to s 81 is to the scale set out in that section which establishes the maximum period of imprisonment applicable.

[17]

If I am correct in this view then both s 81 and s 85 of the Act provide that any period of imprisonment set in default is to be in the discretion of the Court or Justice but subject to the limit described in s 81. It follows that a rate of $50 per day or, indeed, any other rate is not to be automatically applied. The Court or Justice is required to exercise a discretion having regard to all of the circumstances of the matter before it.

[18]

Once it is accepted that a discretion has been granted then that discretion is to be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent: Oshlack v Richmond River Council [1998] HCA 11; (1988) 72 ALJR 578 at 582.

[19]

In determining what is an appropriate default period upon non-payment of a fine the discretion of the Court or Justice is unfettered save for the limit imposed by s 81. What will be an appropriate rate must be determined in all of the circumstances of a particular case. It is not appropriate to prescribe conditions or criteria to be considered. To do so may allow the exercise of the judicial discretion to become fettered "by rules, seemingly apt enough when first conceived but inappropriate to all the varied circumstances with which courts will be confronted in the future": Bunning v Cross [1978] HCA 22; (1977-1978) 141 CLR 54 at 77. Matters that may be considered may include those set out in s 5 of the Sentencing Act and, in particular, the requirement that the punishment of the offender shall be "to an extent or in a way that is just in all the circumstances".

[20]

Apart from the "scale" set out in s 81 of the Justices Act there is no guidance as to an appropriate rate. Mr Kilvington, for the appellant, directed attention to s 39(4) of the Sentencing Act which deals with the breach of a Community Service Order and provides that, where an offender is in breach of such an order, the offender be imprisoned "for such term as would equal one day of imprisonment for each 8 hours or part thereof of the approved project that the offender failed to participate in under the order or for 7 days, whichever is the greater". By reference to s 27(10) of the Sentencing Act an offender shall satisfy the payment of a fine by participating in an approved project for one hour for each $12.50 remaining unpaid. Reading s 39(4) with s 27(10) Mr Kilvington submits that the legislature has provided that, in those circumstances, the applicable rate is $100 per day. In contrast regulation 5 of the Justices (Territory Infringement Notices Enforcement Scheme) Regulations prescribes a rate of "imprisonment for one day in respect of each $50, or part thereof, of the amount remaining unpaid" for an infringement penalty. In my view no assistance is obtained from these provisions. The rate applicable for default in the payment of a fine is for the Court or Justice to determine in all of the circumstances of the particular matter.

[21]

In the present matter, the appeal having succeeded, it falls to me to re-sentence the appellant. I have read and taken into account the matters put to, and accepted by, his Worship below. It seems the appellant was involved in a fight in which he was stabbed. The Julalikari Council Night Patrol vehicle attended at the scene and the appellant thought that officers of that patrol should have intervened and thereby prevented him being assaulted. He became angry and he struck the night patrol vehicle with an iron bar. It seems the value of the damage was $70 and his Worship described it as "trivial". His Worship found that this was not an appropriate matter to be dealt with under the mandatory sentencing regime and I agree with his conclusion in that regard. Restitution was made. The appellant was generally of good character with a reasonable employment history. He co-operated fully with the authorities and he pleaded guilty at an early time. He does have a record of convictions spanning an 11 year period and including some offences for violence. The offences contained in that record of convictions are largely for motor vehicle and alcohol related matters. He has no prior conviction for a property offence.

[22]

The parties agree that the appellant was employed at the time of this incident and that his rate of pay was $314 per fortnight. He is a married man with two young children. He lives on an outstation. He is regarded as a hardworking man who is studying and working as an environmental health worker. No doubt his skills will be of use to the community in which he lives and works. He has a capacity to pay a fine although any fine will create a significant burden upon him. In all the circumstances I impose a fine of $200 plus a victim levy of $20. I will allow three months in which to pay the fine.

[23]

In relation to the setting of a default period I note that the offence was a trivial one. Whilst the appellant has the capacity to pay the fine he will have difficulty in doing so. It is the uncontested submission of Mr Kilvington that if the appellant does default imprisonment is the likely outcome. Whether this be so or not any period of imprisonment in default of payment must reflect the level of seriousness of the offence and also be just in all the circumstances. In my opinion a period of imprisonment for default of 2 days would be just in the circumstances of this matter. I set a default period of two days imprisonment.