Kunari v Scott - [2001] NTSC 7

Kunari v Scott [2001] NTSC 7
PARTIES:KUNARI, Leonard
v

SCOTT, Darrell

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA 58/00
DELIVERED:  23 February 2001
HEARING DATES:  13 February 2001
JUDGMENT OF:  MARTIN CJ

REPRESENTATION:
Counsel:
Appellant:M O’Reilly
Respondent:  G McMaster
Solicitors:
Appellant:CAALAS
Respondent:  DPP
Judgment category classification:      C
Judgment ID Number:  mar0105
Number of pages:  6

Mar0105
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Kunari v Scott [2001] NTSC 7
No JA 58/00

BETWEEN:
LEONARD KUNARI

Appellant
AND:
DARRELL SCOTT

Respondent

CORAM: MARTIN CJ
REASONS FOR DECISION
(Delivered 23 February 2001)

This appeal raises for consideration the application of the decision of Riley J in Newcastle v Coffey (unreported, 13 April 2000) to the circumstances of the case.
The appellant was convicted of driving whilst unlicensed, driving an unregistered motor vehicle and driving a motor vehicle that did not have a current compensation contribution paid. The offences were committed at the one time, 27 September 1999. The registration and compensation contributions had expired on 15 December 1998. The appellant had never had a driver’s licence.
All the offences are regulatory offences (Traffic Act 1949 (NT), s 51). For driving when unlicensed the maximum penalty is a fine of $2,000 (Traffic Act, s 52), for driving an unregistered motor vehicle, $2,000 or imprisonment for 12 months (s 33(1)(a)) and for driving an “uninsured” vehicle, $10,000 with a minimum of $500 for a first offence and $1,000 for a second or subsequent offences (s 34(1)(a)&(b)).
The appellant had five prior convictions for driving whilst unlicensed, one for driving whilst disqualified, two for driving an unregistered motor vehicle, and two for driving an uninsured motor vehicle. (The last two being conjoined as they usually are). The offences were spread over a period from 1973 to 1994. He told the police when apprehended at Hermannsburg that he was driving to Mutitjulu.
When the appellant was before the Court of Summary Jurisdiction on 4 October 2000 his Worship was informed by his counsel that he was an Aboriginal man who had lived most of his life at Docker River, and because of lack of means and remoteness, he had found it difficult to get a driver’s licence. As to the vehicle, he did not have the money to pay for registration and insurance, although he had purchased it for $2,500 years ago, he had since disposed of it.
As to the appellant’s financial circumstances (Sentencing Act 1995 (NT), s 17(1)(a)), the Court was informed that he was receiving unemployment benefits of about $300 a fortnight, that he was married and looked after other members of his family apart from his wife. No detail was provided of his expenditure. It was submitted that his Worship should take those scant details of the appellant’s financial circumstances into account in imposing a monetary penalty and determining any period for which he would be ordered to be imprisoned in default of payment. The prosecutor made no submissions.
His Worship expressed himself as having taken into account the fact that the appellant had pleaded guilty, that he was not entitled to leniency as a first offender, and that he appeared to be in straitened financial circumstances and could not pay a large fine.
It is not contended that his Worship was not able to make that inference on the material before him. He decided to impose an aggregate fine of $1,100 (see Sentencing Act, s 18). It will be noted that of that sum, $1,000 was the mandatory minimum which could be imposed for driving the uninsured vehicle. The victim assistance levy amounted to $60. His Worship fixed a period of imprisonment in default of payment at 21 days.
Counsel for the appellant again mentioned the decision of Newcastle v Coffey to his Worship who said that he had taken it into account, and that if he had not done so, the default period would have been 24 days “So I’ve rounded it down to three weeks”. At the request of counsel for the appellant his Worship allowed 12 months to pay the fine.
The sole ground of appeal is that his Worship erred in fixing the period of imprisonment in default of payment, it was too much.
In Newcastle v Coffey his Honour held that s 81 and s 85 of the Justices Act 1928 (NT) provide a court with a discretion in setting the period of default imprisonment, but to contain the exercise of a discretion within outer limits, that is, such period should not exceed one day for each $50 of the fine imposed. There is a discretion to fix a lesser period. In his Honour’s view the criteria to be considered is not fixed and what is appropriate must be determined in all the circumstances of the case. With respect, I agree.
It can not be doubted that his Worship fixed a penalty which was about the minimum. The circumstances, except those relating to the appellant’s assumed impecuniosity, justified a greater penalty bearing in mind that the minimum for one of the offences was $1,000. His Worship acted within the law when fixing the aggregate fine with reference to those circumstances. In addition, he allowed 12 months to pay as sought by the appellant, but on the assumptions made by his Worship the payment of such a fine over that period would nevertheless impose a significant burden on the appellant. There was nothing to suggest his financial circumstances would improve.
In my opinion, this type of offending is to be regarded as serious. The protection of road users demands that those driving motor vehicles be trained and licensed to do so, registration of motor vehicles is designed, amongst other things, to ensure that they are roadworthy and payment of compensation contributions is to support the statutory scheme to assist the victims of motor vehicle accidents.
A default period must pay regard to the legislature’s clear intention that those who do not pay compensation contributions must suffer significant financial penalty without exception. It would run counter to that intention to fix a period of default imprisonment which disregarded it, unless there are exceptional circumstances, such as unavoidable use of the motor vehicle to save life. Here there was no such excuse. It is of no consequence to the parliament’s intention that some people may drive a motor vehicle which is uninsured because they can not afford to pay.
There is power under the Sentencing Act for a court to vary an order allowing time to pay in the circumstances set out in s 22. Further, where a warrant of commitment has been issued for failure to pay a fine, an offender may apply to the Director to participate in an approved project, in satisfaction of the fine. If the Director is satisfied of the matters referred to, he may make a community service order enabling the offender to satisfy the payment of a fine by participating in an approved project for one hour for each $12.50 of the fine remaining unpaid. In this case if the fine is wholly unpaid, the period would be 90 hours. There is no certainty, of course, that in either of these cases the amelioration of payment of the fine would necessarily be available to the appellant, but it seems to me that the legislature has provided these alternatives as a means by which an offender may endeavour to avoid the imprisonment ordered upon default in payment of a fine.
His Worship made a small allowance in the appellant’s favour when he fixed the period of imprisonment to be served in default of payment of the fine. Absent any reasons, it is impossible to know upon what basis his Worship made that reduction. However, in all the circumstances of this case I do not consider that the period fixed was outside the period which fell within the discretion available to his Worship.
The appeal is dismissed.
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