Coker-Williams v Clerk of Petty Sessions
[2007] TASSC 34
•5 June 2007
[2007] TASSC 34
CITATION: Coker-Williams v Clerk of Petty Sessions [2007] TASSC 34
PARTIES: COKER-WILLIAMS, Ronald David
v
CLERK OF PETTY SESSIONS (THE)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 79/2006
DELIVERED ON: 5 June 2007
DELIVERED AT: Hobart
HEARING DATE: 2 April 2007
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 unrepresented offender.
Magistrates Court (Civil Division) Act 1992 (Tas), ss31A and 47(2)(b).
Murfet v Clerk of Petty Sessions [2003] TASSC 86, followed.
Aust Dig Magistrates [147]
REPRESENTATION:
Counsel:
Applicant: M B Hunnniford
Respondent: A Hensley
Solicitors:
Applicant: Hunnifords
Respondent: Director of Public Prosecutions
Judgment Number: [2007] TASSC 34
Number of paragraphs: 19
Serial No 34/2007
File No LCA 79/2006
RONALD DAVID COKER-WILLIAMS v THE CLERK OF PETTY SESSIONS
REASONS FOR JUDGMENT SLICER J
5 June 2007
The applicant was convicted of the unlawful possession of abalone, contrary to the Fisheries (Abalone) Rules 2000, ss17(1)(b) and 21(2). He was fined the sum of $2,000 and subject to a special mandatory penalty of $46,620 as required by the Living Marine Resources Management Act 1995, ss7, 267 and 269. Given the provisions requiring the imposition of mandatory penalties, it might appear at first glance that the fine of $2,000 was but an unwarranted or superfluous impost. But the scheme enacted by Parliament maintained a distinction between the two forms of penalty, the possible methods of enforcement and sanctions for default. Given the amount which might be assessed by the statutory formula and its mandatory nature, it could be said that the statutory scheme offends the common law principle forbidding the imposition of an excessive fine and requiring any assessment to take into account the capacity of a person to pay the fine. The prohibition instanced in the Bill of Rights 1688 (UK) remains as part of the law in Tasmania by virtue of the combined effect of the Australian Courts Act 1828 and the Charter of Justice, Letters Patent, William IV, 23 October 1823. The principle remains applicable and enforceable (Delohery v Permanent Trustee Co of New South Wales (1904) 1 CLR 283; Mitchell v Scales (1907) 5 CLR 405; Attorney-General for New South Wales v Love [1898] AC 679). Whilst the Sentencing Act 1997 ("the Act"), s4, defines a fine as meaning "the sum of money payable by an offender under an order of a court made on the offender being convicted of an offence and includes a sum of money payable as costs, a restitution order and a compensation order", the statutory provision does not, because of its adoption of differing methods of enforcement or recovery, expressly repeal the principle of proportionality (see, generally, Smith v R (1991) 25 NSWLR 1, Sentencing, State and Federal Law in Victoria, Fox and Freiberg, 365; Sentencing in Tasmania, Warner, 4.2). It has been accepted that a fine which is beyond the reasonable capacity of the offender to pay ought be regarded as excessive (Broughton v Lowe [1979] Tas R (NC 7), 20/1979). In that case Neasey J stated at 3:
"Imposition of a fine which is beyond the offender's reasonable capacity to pay never was just or rational; but it is the more unjustified where, as in Tasmania, justices imposing a fine are obliged by law to set a period of imprisonment fixed by the statute to be served by the offender if default occurs in payment of the fine."
(See also Chugg v Stanford [2000] TASSC 93.)
The principle of proportionality or capacity to pay is abrogated in cases where Parliament requires a court to impose a fine of a minimum amount (Davies v Deverell (1992) 1 Tas R 214; Briant v Bessell (1994) 74 A Crim R 204; Lloyd v Snooks 65/1997). However, Parliament has ameliorated to a limited degree an inevitable consequence of lengthy imprisonment by providing for time to pay (the Act, s44(1)(c)) or permitting a court to impose an order requiring the performance of community service rather than one of imprisonment in the event of default. In cases such as here where a special mandatory penalty is imposed, Parliament accommodates the competing principles by either deeming the penalty to be a civil debt or permitting a court to transform it into a debt and the civil enforcement of the debt.
On 21 December 2001, the sentencing magistrate ordered the applicant to pay the total sum of $48,625.62 by instalments of $300 per month, which would require 13½ years before satisfaction. Unfortunately in that month the applicant's health deteriorated and, following assessment, he was granted a "disability pension". He suffered a heart attack at the age of 37 in January 2002. He has continued to receive a disability pension since that date. He has been able to undertake only part time work since that time.
The figures shown on the records of the Fines Enforcement Unit referred to in the statutory declaration of an officer of that department, are incorrect. This shows the imposition of a fine of $48,025.62, on which all other calculations have been based. The court record indicates that a fine of $2,000 was imposed, with a special penalty calculated at $46,600.62, making a total of $48,600.62. The record shows "costs $25, balance remitted". For the purpose of this exercise, I will assume that the commencing figure is $48,600 and all other calculations are based on that figure and not that stated in the records of the Fines Enforcement Unit.
The applicant paid the sum of $1,200 by instalments between January and May 2002. He was unable to maintain the amount of instalments required. On 3 March 2003, a warrant of arrest was issued for non-payment of the outstanding amount of the fine. The applicant says in an affidavit not challenged by the respondent, that he attempted on two occasions prior to November 2003 to pay money in reduction of the fine at Service Tasmania, Glenorchy, but was told that there was no computer facility to receive and credit the money tendered.
He appeared in the Court of Petty Sessions at Oatlands on 17 November 2003. He was not represented by counsel. There is no transcript or decipherable note of those proceedings. In his affidavit sworn 26 February 2007, filed in support of the appeal, the applicant relevantly stated:
"5)I was subsequently arrested on warrant and taken before the Magistrate Mr Wilson SM on November 3, 2003.
6)The Magistrate refused to allow me to speak and explain my financial circumstances.
7)The Magistrate imposed 1 days in prison for each penalty unit owed which amounted to some 460 days in prison pursuant to S47 of the Sentencing Act 1997."
In an affidavit sworn 26 March 2007, the applicant further stated:
"9The Magistrate refused to allow me to speak and to explain my financial circumstances. The entire court hearing was that I answered 'yes' when asked my name; the prosecutor or court clerk read out the charges and I wasn't given the opportunity to say anything else and Mr Wilson said 'on this fine you've got 6 months to pay the full amount or 480 days in prison. You can leave the court'."
That account was not challenged by the respondent on the hearing of this appeal.
Whilst the time for the payment and the statutory date for the issuing of a warrant limited the options available to the magistrate (the Act, s47(4)), there were other options available to him (s47(2)(a) and (b)). The applicant was unrepresented and was entitled to be heard and to outline his subjective circumstances, including his illness since the date of the original order, the amount of his disability pension and details of his expenditure. Other options could have been explored by the court which took into account those changed circumstances. Instead the court simply suspended the operation of the warrant for a period of six months.
On 14 December 2006, the applicant filed a notice of review, claiming that the learned magistrate had failed to exercise his discretionary powers afforded by the Act, s47, and had not permitted the applicant to make submissions or be heard at the hearing. He was granted leave for the lodging of the appeal out of time. The respondent did not oppose the second basis for the appeal, nor seek to challenge through cross-examination or the adducing of evidence the factual circumstances stated by the applicant. On 2 April I upheld the appeal and quashed the order made by the learned magistrate and set aside the warrant of commitment issued by the respondent.
Both parties requested that I deal with the matter and not remit the proceedings back to the Court of Petty Sessions.
Following the order made by Magistrate Wilson on 17 November 2003 suspending the operation of the warrant for six months on condition that the sum of $46,879.62 was paid within six months, the applicant made payments of $650 between 20 November 2003 and 17 May 2004. Given that the amount of his disability pension at that time was approximately $400 per fortnight, and monthly mortgage payments were $300, the sum paid reflected a genuine attempt, rather than disdain for the court process. In addition, he claims to have attempted to make a further payment of $300 through Service Tasmania, Glenorchy, but was refused since the computer system would not accommodate the transaction.
The applicant and his wife renegotiated their home mortgage. The home, situated at Colebrook, had been purchased in December 2001 for $55,000, finance being obtained through a bank mortgage of $50,000 and a vendor loan for $5,000. The refinancing in September 2004 was no easy matter since the equity held by the applicant and his wife was and remains relatively small. On 22 September 2004, the applicant paid to the Clerk of Petty Sessions the sum of $14,000, leaving a balance of $32,750 owing. The applicant believed that the payment put him in credit for some further 12 months, given that the payment of $15,850 was the equivalent of 52 months from 21 December 2001. He was mistaken. A further warrant was issued and executed. He was imprisoned on 27 September 2006, serving 125 days until his release on bail on 29 January 2007. Warrant fees were added to the original fine and mandatory penalty.
Calculation of the records, absent remission of costs, shows an indebtedness of $20,250 as at 30 January 2007. The original amount was $48,600, which, if paid at $300 per month, would have required 162 months, permitting the final payment to be made in 2015. He has thus far, allowing for cash payments and the statutory credit for each day spent in prison, paid $28,350.
The response of the State on the hearing of the appeal and the dealing with the matter afresh is to urge that the warrant ought run its course and that he serve a further 198 days of imprisonment.
It would be possible to order that the applicant undertake 198 days of community service which, assuming two days a week, would extend for over two years.
The current position of the applicant is set out in his affidavit sworn on 26 March, which states:
"15I still receive the disability pension which varies from $470.00 to $490.00 per fortnight and the house mortgage payments are approximately $300.00 per month. I have just started over the last two days part time work for 12 months depending on my health as a house painter at a rate of $20.00 per hour for $120.00 per day for 3 to 4 days a week payable monthly. My wife receives a part unemployment and child allowance (1 child who will be 16 in June 2007 at which date child allowance of $220.00 per fortnight will end) of approximately $300.00 per fortnight. She is 36 years of age. She has debts of $3,000.00 owing on her failed business.
16I have a back disability and osteoarthritis and underwent spinal disc surgery in Launceston shortly prior to being granted the disability pension approximately 12 years ago.
17I have no assets other than a half ownership of the house at Colebrook which would be valued at $80,000.00 to $90,000.00 and the mortgage is approximately $65,000.00. I own an old car which is not of any value. Neither I nor my wife have any assets or income other than referred to.
18I wish to pay further amounts in reduction of the fine but I am only able to afford $150.00 a month."
He was cross-examined on that affidavit. He told the Court that the family home was valued at approximately $90,000. On the basis of the original mortgage of $50,000 and the refinancing, the equity of the applicant and his wife is likely to be some $20,000. He told the Court that he was able to earn some $150 per fortnight without impact on his pension.
The respondent opposes the making of any order under the Act, s47(2)(b), since there is no method of enforcement. That claim is incorrect. The question of enforcement was considered in Murfet v Clerk of Petty Sessions [2003] TASSC 86 which dealt with the operation of the Act, s53, and provided a suggested figure for payment by instalments. Here I was told that there is no statutory officer or institution which can use s53 as a method of enforcement since the Fines Enforcement Unit is simply one of administrative arrangement with no statutory basis. The Magistrates Court (Civil Division) Act 1992, s31A, provides that court with the same powers in relation to the enforcement of its judgments and orders as the Supreme Court. To that can be added the power to activate the Act, s53. If this power is deemed to be impractical, then it is for Parliament to enact an appropriate provision remedying the situation.
In Murfet, I made a suggestion as to the appropriate amount which might be paid in reduction of the civil debt. Given the statement made on behalf of the respondent that there is no person or body which might activate s53, it is pointless to suggest a figure. The only order which this Court will make is the direction made under the Act, s47(2)(b), that civil proceedings be taken under the Magistrates Court (Civil Division) Act 1992.
Orders
(1)That the order made in the Court of Petty Sessions on 3 November 2003 be quashed.
(2)That the warrant of commitment issued by the respondent in accordance with that order be set aside.
(3)That civil proceedings be taken against Ronald David Coker-Williams under the Magistrates Court (Civil Division) Act 1992 for the remaining portion of the fine and penalty, namely $20,250.
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