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

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Campbell v Turner

Details

AGLC: Campbell v Turner [2001] TASSC 91
Case: [2001] TASSC 91
Decision Date: 10 August 2001

CaseChat Overview and Summary

In Campbell v Turner, the appellant, Jason Peter Campbell, appealed against fines imposed by the respondent, Sergeant Paul Turner, in the Supreme Court of Tasmania. The fines were related to three separate offences that occurred on 17 January 1999, 6 February 1999, and 24 October 1998. The appellant was sentenced to a total of 13 days imprisonment, suspended on the condition that he pay the fines, which totalled $1,180 with warrant fees, within six months. The appellant argued that the magistrate erred in law by not properly considering his financial circumstances before imposing the fines and by not considering a community service order as an alternative to the fines.

The court was required to determine whether the magistrate properly exercised his discretion when imposing the fines and whether he considered the appellant's financial circumstances. The court also needed to determine if the magistrate properly considered a community service order as an alternative to the fines. The court found that the magistrate did not properly consider the appellant's financial circumstances and failed to consider a community service order as an alternative to the fines. The court held that the magistrate was required to have regard to the capacity of an offender to make payment and consider a community service order as an alternative to the fines.

The court quashed the orders made by the magistrate and substituted new orders. The court ordered that the appellant pay fines of $166, $295, and $225 within six months, in default of which he would serve a sentence of imprisonment of two days, three days, and two days, respectively. The court also ordered that the appellant undertake 35 hours of community service in accordance with the Sentencing Act 1997. The court held that it was not appropriate to refer the matters back to a court of summary jurisdiction and that the court should determine its own orders.

Orders