Campbell v Turner

[2001] TASSC 91

[2001] TASSC 91

CITATION:           Campbell v Turner [2001] TASSC 91

PARTIES:  CAMPBELL, Jason Peter
  v
  TURNER, Paul

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Appellate
FILE NO/S:  LCA 12/2001
DELIVERED ON:  10 August 2001
DELIVERED AT:  Launceston
HEARING DATE/S:  23 July 2001
JUDGMENT OF:  Slicer J

CATCHWORDS:

Magistrates - Procedure - Orders and convictions - Sentencing - Imposition of fines - Duty of court to ascertain defendant's financial circumstances - Failure to give proper consideration to converting fines to CSOs.

Sentencing Act1997 (Tas), s47(2).

Broughton v Lowe (1979) Tas R NC7; Kaye v Vagg(No 2) (1984) 11 A Crim R 127; Briant v Bessell (1994) 74 A Crim R 204; Reeves v Ranson [1999] TASSC 52, followed.

Aust Dig Magistrates [147]

REPRESENTATION:

Counsel:
           Applicant:  Ms C Gibson
           Respondent:  Mr J Ransom
Solicitors:
           Appellant:  Trezise Partners
           Respondent:  Director of Public Prosecutions

Judgment ID Number:  [2001] TASSC 91
Number of paragraphs:  16

Serial No 91/2001

File No LCA 12/2001

JASON PETER CAMPBELL v SERGEANT PAUL TURNER

REASONS FOR JUDGMENT  SLICER J
  10 August 2001

1. These four appeals relate to the non-payment of fines imposed on 15 April and 19 August 1999.  On 22 May 2001 the applicant was sentenced to a total of 13 days imprisonment suspended on condition that the sum total of the fines, which by then, with warrant fees, amounted to $1,180, be paid within six months.  The following grounds of appeal are common to each appeal:

"1The learned Magistrate erred in law in suspending the sentence of imprisonment upon the condition that he pay the fine within a time which was beyond the Applicant('s) [sic] capacity to pay.

2The learned Magistrate erred in that he failed to give any, or any proper consideration to the making of a Community Service Order.

3...

4The learned Magistrate failed to have proper regard to the financial circumstances of the Applicant when considering the making of an order pursuant to Section 47(2) of the Sentencing Act 1997."

The fines were imposed with respect to offences which had been committed on three separate occasions.  Relevant details are:

Date of offence	Nature of offence	Fine & Costs	Date Imposed
LCA 9/2001	17 January 1999	Failure to wear seat belt Complaint No 29317/99	$110	19 August 1999 28 days to pay
LCA 10/200	6 February 1999	Obstruction of police officer	$224	15 April 1999 6 months to pay
Complaint No 26582/99
LCA 11/2001	6 February 1999	Disorderly conduct Destroy property	$344	15 April 1999 6 months to pay
LCA 12/2991	24 October 1998	Disorderly conduct	$174	15 April 1999 6 months to pay

1. On 15 October 1999 a court of petty sessions granted the application made by the applicant for an extension of time within which to pay the above outstanding fines and ordered that the time for payment be extended for a period of five months.  On 3 May 2001 the applicant was arrested on warrant following non-compliance and was bailed to reappear on 22 May 2001.  On that day counsel for the applicant made application in accordance with the Sentencing Act 1997, ('the Act"), s47(2)(a) that a community service order be substituted for the original fines. The learned magistrate refused and instead exercised power, afforded by the Act to issue a warrant of commitment and suspended its execution "for the purpose of allowing the offender to pay the outstanding amount of the fine", for the maximum amount permitted of six months. He stated as his reason that "apparently the court saw fit to impose fines in the first place and he can't expect those to be simply at his request converted to community service orders without some inquiry by the Court into his ability to pay". It was within his appropriate discretion to exercise that power.

1. The learned magistrate was told that the applicant was in receipt of unemployment benefits of $250 per fortnight from which he paid $50 on board and $100 for food per fortnight.  He was further told that the offender had a civil debt of approximately $1,300 and was required to repay the employment agency, Centrelink, a further sum of $3,000.  In relation to those latter matters the learned magistrate correctly observed that "those matters come behind this". 

1. Following that outline the learned magistrate stated, "Yes, thanks.  No I am not going to convert these to community service orders.  He's made no real effort to pay".

1. Following this counsel for the applicant advised the court that in relation to the unpaid fines:

"... he paid - up until Christmas last year he was making a real effort to pay and he paid some $800 or $900 off outstanding fines up until that point and then he was cut off his unemployment benefit totally for a period of eight weeks.  So during that period he had no income at all and had to borrow obviously for living expenses and so he wasn't able to make any further payments."

At this stage the applicant intervened and stated to the court:

"I was struggling to pay them off but I was doing my best."

That material answered in part the concern of the learned magistrate. 

1. Counsel for the applicant continued with her submission stating:

"So the situation he finds himself in now is that he is really unable to - his outstanding fines are over $1,000 and he - some $1,180 and ¾

The submission was interrupted by the magistrate stating:

"I will give him six months to pay that.  Six months to pay, failing which 13 days' imprisonment."

1. Counsel for the applicant and the respondent agreed, following them listening to the audio tape of the proceedings, that the final determination of the learned magistrate had interrupted the submission of counsel. 

1. A reading of the transcript permits the conclusion that the learned magistrate had earlier decided to decline to substitute community service orders for the payment of fines and that his final order related only to the time to pay.  In doing so he failed to properly consider the critical argument of the applicant, namely that he had been paying other outstanding fines, had been unable to so do during an eight week period and, with the best will in the world, had insufficient financial resources to pay the sum of $1180 within six months. 

1. The relevant provisions of the Sentencing Act 1997 ("the Act"), s47(2) state:

   "(2)  If an offender against whom a warrant has been issued under subsection (1) fails to pay the fine in respect of which the warrant is issued, together with the prescribed costs of the warrant, a magistrate, on the offender being brought or otherwise appearing before that magistrate, may ¾

   (a)make a community service order against the offender specifying the amount of community service or other activity that the offender is required to do calculated in accordance with section 48; or

   (b)...

   (c)issue a warrant of commitment against the offender for a term of imprisonment calculated in accordance with section 50 in respect of the outstanding amount of the fine."

2. A court of petty sessions in exercising power afforded by the Act is required to do so in accordance with the principles of judicial discretion. It is required to have regard to the capacity of an offender to make payment (Broughton v Lowe (1979) Tas R NC 7; Kaye v Vagg (No 2) (1984) 11 A Crim R 127; Briant v Bessell (1994) 74 A Crim R 204 and Reeves v Ranson [1999] TASSC 52).

1. Those principles governing discretion are relevant to a determination made in accordance with the Act, s47. In cases where no attempt has been made to pay the fine then they would have little impact. But where, as here, an offender was making the payments for fines it is incumbent to pay regard to the capacity to pay.

1. The learned magistrate was correct to regard the past failure to pay the fines as central to an exercise of discretion.  But once he was told that some $800 to $900 had been paid and further  attempts to pay had been made he was obliged either to explore the veracity of the claim or to exclude it as a factor in his determination.  Accepting, that in the circumstances of this case a genuine effort had been made, he ought to have considered the capacity to pay the outstanding fines within six months. 

1. The material placed before the learned magistrate was that he would receive an income of $3,250 and require $1,950 for living expenses, during a six month period, leaving a notional disposal income of $1,300.  The order made did not reflect proper consideration of the making of a community service order.

1. The learned magistrate was correct in regarding the continued failure of the applicant to meet his legal responsibilities and, because of the failure of the applicant to separate the applications, failed to make differing orders.

1. Ground 2 of LCA 11/2001 is upheld.  However, the upholding of that ground impacts on the other appeals, given that the error impacted on the totality of fines.  Each of the appeals will be upheld on the basis of the error alleged by Ground 2.  The problem of time for compliance requires that each order be reviewed.  It is not appropriate to refer the matters back to a court of summary jurisdiction.  Counsel for both parties are agreed that the Court should determine its own orders.

Conclusion

1. Each motion to review will be upheld.  The orders made will be quashed and in substitution thereof the following orders made:

LCA 9 OF 2001

The applicant is to pay the fine of $166 within six months, in default thereof he is to serve a sentence of imprisonment of two days.

LCA 10 OF 2001

The applicant is to pay the fine of $295 within six months, in default thereof he is to serve a sentence of imprisonment of three days.

LCA 11 of 2001

In accordance with the Act, s47(2)(a) Jason Peter Campbell is to undertake 35 hours of community service.

LCA 12 of 2001

The applicant is to pay the fine of $225 within six months, in default thereof he is to serve a sentence of imprisonment of two days.