Gillam, Michael Anthony v Clerk of Petty Sessions

[1998] TASSC 51

51/1998

PARTIES:  GILLAM, Michael Anthony
  v
  CLERK OF PETTY SESSIONS

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 9/1998
DELIVERED:  30 April 1998
HEARING DATE/S:  30 April 1998
JUDGMENT OF:  Cox CJ

[Edited edition of reasons for judgment given orally]

CATCHWORDS:

Magistrates - Jurisdiction and procedure generally - Procedure - Orders and convictions - Imprisonment without distress - Warrant of commitment - Miscarriage of magistrate's discretion producing injustice - Warrant of commitment issued despite the sum of damages imposed being beyond the appellant's reasonable capacity to pay - Failure by magistrate to consider alternative to prison under the Justices Act 1959, s92A.

Aust Dig Magistrates [173].

REPRESENTATION:

Counsel:
           Applicant:  R A Browne
           Respondent:  L A Mason
Solicitors:
           Appellant:  Legal Aid Commission of Tasmania
           Respondent:  Director of Public Prosecutions

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  51/1998
Number of pages:  3

Serial No 51/1998
File No LCA 9/1998

MICHAEL ANTHONY GILLAM v CLERK OF PETTY SESSIONS

REASONS FOR JUDGMENT  COX CJ

DELIVERED ORALLY  30 April 1998

In October 1993 in the Children's Court at Hobart, the applicant was conditionally discharged on charges of burglary and stealing goods to the value of $2,500.  A claim for damages in this sum was made by the owner of the stolen property, Mrs Broadby, and on 27 October 1993 the applicant was ordered to pay that sum at the rate of $10 per fortnight.  He was aged 17 years at the time of that order.  He failed to make any payments and, on 28 November 1997, the Clerk of Petty Sessions issued a warrant of arrest for non-payment of the sum of $2,500, that whole sum having, by reason of his default, become due and payable pursuant to the Justices Act 1959, s78(3).

On 9 January 1998 he appeared before a magistrate who, having obtained from him an admission that the whole sum of damages and a further $50 on the warrant was outstanding, asked why it had not been paid and the following exchange then occurred:

"Defendant:I have moved around quite a lot for the last four years and had a bit of a drug problem and things like that and my life is pretty much stable at the moment and I have lived at the same current address for twelve months now and I don't have any problem in paying the fine.  I did in actual fact come in to pay that double amount and I was told the warrant was issued so - - .

Magistrate:How much were you offering to pay of it?

Defendant:I will pay $30 a fortnight/$40 a fortnight.

Magistrate:I have got news for you.  If I am going to take payments like that, it has got to be $200 a fortnight because the maximum time I can give you now is six months.

Defendant:[inaudible] to pay $200 a fortnight?

Magistrate:$200 a fortnight.

Defendant:Yes.

Magistrate:You can afford that, can you?

Defendant:I will pay it.

Magistrate:I asked can you afford it?

Defendant:I can't afford it, but yes I will pay it.

Magistrate:So how do you think you are going to pay it if you can't afford it?

Defendant:Oh, well, it's not that I can't afford it I just will go without for the next six months or whatever time it takes to pay back that money.

Magistrate:I will just check and make sure I've got my arithmetic right on this one, too.  $2,550 divided by 13.  Well, the good news is the actual figure is $165 a fortnight.  Does that sound a bit better?

Defendant:Yes.

Magistrate:Right.  Well, when we get down precisely - now the first payment, your first payment will be when?

Defendant:On 15th.

Magistrate:Right.  Now listen very carefully to what I am going to do with you.  On this I have to sentence you to twenty-six days' imprisonment for non-payment.  But the execution of that I will stay the maximum period of six months and it is not to be executed so long as you pay in full within that time and I note that you will pay at the rate of $165 a fortnight, the first payment to commence by 15 January 1998.

Defendant:Yes.

Magistrate:Don't forget to pay, will you?

Defendant:I will not.

Magistrate:It's a long time out of your life otherwise.

Defendant:Right."

Section 80(2) enables justices in such a situation:

(a)      to make a community service order;

(b)to direct that proceedings be taken against the defendant pursuant to a memorandum of the conviction or order transmitted under s92A(1), that is that the sum outstanding be recovered as a civil debt at the suit of the Clerk of Petty Sessions or civil party;

or

(c)to issue a warrant of commitment against the defendant for a term of imprisonment calculated on the basis of one day for each $100 of the debt, or in this case twenty-six days.

Beyond asking the applicant whether he could afford to pay a named sum, which the latter clearly indicated he could not, the learned magistrate made no other enquiry into the applicant's means.  In view of the assertions of inability to afford these payments and the absence of any evidence to the contrary, the magistrate should have accepted that they were beyond his reasonable capacity. 

The magistrate, notwithstanding the inability of the applicant to pay anything like a sum of $165 a fortnight, issued a warrant of commitment to prison for twenty-six days, but suspended the execution of that sentence on condition that the sum be paid within that time by instalments of $165 a fortnight.  I note in passing that the arithmetic appears to be wrong, but nothing turns on that fact.  He did not advert to his power to impose a community service order or to enforce payment of the debt by civil proceedings.  Indeed, his comment, "Now listen very carefully to what I am going to do with you.  On this I have to sentence you to twenty-six days' imprisonment for non-payment" suggests that he considered that he had no other options. 

It has frequently been observed that the imposition of a fine which is beyond the offender's reasonable capacity to pay was never just or rational.  See Devlyn v Lowe 31/1980 and Kaye v Vagg (No 2) 37/1984.  In my view, to impose a suspended sentence of imprisonment for non-payment of a sum of damages ordered to be paid in circumstances where the person in default has no reasonable capacity to meet the condition upon which execution of the sentence is suspended by paying a large sum of money every fortnight, is equally unjust and irrational.

It is clear that the learned magistrate did not advert to the alternatives open to him under s80(2). Notwithstanding that the civil party may well retain the right to enforce the order independently of s80 (which can only be activated by the Clerk of Petty Sessions), an order that the applicant perform community service would not have been a very satisfactory manner of resolving the matter because that would not compensate the civil party for whose benefit the original order was made, nor would a sentence of imprisonment if the applicant continued in default. 

This was an obvious case, in my view, where the rights of a civil party could be safeguarded and enforced as a civil debt by recourse to the procedure set out in s92A. The failure of the learned magistrate to advert to the possibility of adopting this course and to give to the unrepresented applicant, when he was before him, the opportunity to urge that course upon him amounted to a clear miscarriage of his discretion and produced injustice.

I uphold the appeal, I quash the magistrate's order and the warrant of commitment and in lieu thereof I direct that proceedings be taken against the applicant pursuant to a memorandum of the order adjudging that payment of $2,500 transmitted under s92A(1) of the Act.