Lexcray Pty Ltd v Northern Territory of Australia [2000] Ntca 4 Summary

Nelson & Ors v Meredith, Robbo v Hatzismail & Patrick v Nayda
[2001] NTSC 4
PARTIES:NELSON Joshua, WHITE Kassa, PATRICK Martin, MARTIN Toby, MCDONALD Michael, MARTIN Toby and RONSON Raphael
v
MEREDITH, Andrew
AND:
ROBBO, Donald
v
HATZISMAIL, Katrina
AND:
PATRICK, Martin
v
NAYDA, Wayne

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NOS:JA 41/00, 40/00, 39/00, 36/00, 35/00, 34/00 42/00, 37/00 and 38/00
DELIVERED:  12 February 2001
HEARING DATES:  12 February 2001
JUDGMENT OF:  MARTIN CJ

CATCHWORDS:
CRIMINAL LAW

Practice and procedure – sentence – meaning of financial circumstances – nature of burden – definition of “find out” – obligation of court to enquire.
Sentencing Act 1995 (NT), s 17(1) and s 17(2)

REPRESENTATION:
Counsel:
AppellantsJ Condon:
Respondents:  C Roberts
Solicitors:
Appellant:CAALAS
Respondent:  DPP
Judgment category classification:      B
Judgment ID Number:  mar0103
Number of pages:  4

Mar0103
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

Nelson & Ors v Meredith, Robbo v Hatzismail & Patrick v Nayda

[2000] NTSC 4
Nos JA41/00, JA40/00, JA39/00, JA36/00, JA 35/00, JA34/00,
JA42/00, JA37/00 and JA38/00
Nos:    JA41/00, JA40/00, JA39/00
           JA36/00, JA35/00, JA34/00
           JA42/00
  BETWEEN:

JOSHUA NELSON, KASSA WHITE, MARTIN PATRICK, TOBY MARTIN MICHAEL MCDONALD, TOBY MARTIN AND RAPHAEL RONSON

Appellants
AND:
ANDREW MEREDITH

Respondent

No: JA37/00
BETWEEN:

DONALD ROBBO

Appellant
AND:
KATRINA HATZISMAIL

Respondent

No: JA38/00
BETWEEN

MARTIN PATRICK

Appellant
AND:
WAYNE NAYDA

Respondent

CORAM: MARTIN CJ
REASONS FOR DECISION
(Delivered 12 February 2001)

These appeals against penalty all raise an issue which is sufficient to dispose of all of them. Given the course which I propose to adopt, it is unnecessary and undesirable to consider other grounds.
The appellants each pleaded guilty before the Court of Summary Jurisdiction sitting at Lajamanu for a variety of offences. In each case his Worship convicted the appellant and imposed fines, fixed terms of imprisonment in default of payment and allowed time to pay.
The Sentencing Act provides:
“17(1) Where a court decides to fine an offender, it shall, in determining the amount of the fine and the way in which it is to be paid, take into account, as far as practicable –
(a)the financial circumstances of the offender; and
(b)the nature of the burden that its payment will impose on the offender.”
It will be noted that the information specified goes both to the amount of the fine and the way in which it is to be paid.
In none of these cases was the Court provided with the details it was required to take into account. At best, counsel then appearing for each appellant indicated the income being received by his client. The words “financial circumstances” go beyond earnings. They include as well, for example, assets, debts, monetary commitment and cost of living including money expended for the maintenance of dependents.
The “nature of the burden” that payment of a fine will impose is a more difficult concept if it is meant to go beyond the obvious depletion of money. The nature of the burden will depend upon the circumstances of each case.
Clearly it was the intention of the legislature that fines not be imposed without regard to those matters which call into question the indiscriminate imposition of a fine with regard only to what may be regarded as a “tariff”.
The other major question which arises is as to the way in which a court is to be informed about those matters. Obviously, there is an obligation on counsel for an accused to take instructions and inform the court about them. Failing that, it seems to me that there is an obligation on the court to enquire, a fortiori, if the offender is not legally represented.
It is provided in s 17(2) as follows:
“A court is not prevented from fining an offender only because it has been unable to find out the matters referred to in subsection (1).”
“The use of the words “unable to find out” import that there is a duty on the court. Amongst other things the Oxford English Dictionary defines “find out” as (a) to discover by attention, scrutiny, study etc; (b) to come upon by searching or enquiry. All of that brings about the notion of activity by the court to ascertain the required information, not mere reception of information if any is offered.
It is possible that the parliament did not intend to use the words “find out”, but they are there and must be construed in their context.
In these cases it is not open to suggest that the court was “unable to find out”, it is apparent that incomplete information was supplied and that no enquiry was made by the court in an effort to make up the deficiencies.
In my opinion, the court was without jurisdiction to determine the amount of the fines and the way in which they were to be paid. The case must be remitted to the Court of Summary Jurisdiction for hearing, taking into account these rulings.
Orders in each case accordingly.
----------------------------------------------------

In this case, the appellants, Nelson, White, Patrick, Martin, McDonald, Martin, and Ronson, along with Robbo and Patrick, were convicted of various offences in the Court of Summary Jurisdiction at Lajamanu. They each appealed against their sentences, arguing that the fines imposed did not take into account their financial circumstances and the nature of the burden their payment would impose. The appellants claimed that the sentencing court failed to consider their financial situations adequately, which was a requirement under section 17(1) of the Sentencing Act 1995 (NT). They argued that the court should have taken into account their assets, debts, and other financial commitments, not just their income. Furthermore, they contended that the court did not make sufficient efforts to ascertain this information, which is an obligation under section 17(2) of the Act. The court was required to decide whether the failure to consider the appellants' financial circumstances and the burden of the fines constituted a jurisdictional error.

The court held that the Sentencing Act requires the court to take into account the financial circumstances of the offender and the nature of the burden the fine will impose when determining the amount of the fine and the way it is to be paid. The court emphasised that the financial circumstances of the offender include more than just their income, such as assets, debts, and the cost of maintaining dependents. The court also held that the obligation under section 17(2) of the Act to "find out" the required information implies an active duty on the part of the court to ascertain the necessary information, not merely receiving information if it is offered. The court concluded that in these cases, the sentencing court did not make sufficient efforts to gather the necessary information and therefore, the fines imposed were not valid.

The Supreme Court of the Northern Territory ruled that the Court of Summary Jurisdiction did not have the jurisdiction to determine the amount of the fines and the way they were to be paid because it failed to take into account the financial circumstances of the appellants and the nature of the burden the fines would impose. The court ordered that the cases be remitted to the Court of Summary Jurisdiction for a hearing that would properly consider the appellants' financial circumstances and the burden of the fines. This ruling ensured that the fines imposed would be fair and just, taking into account the individual financial situations of the appellants.

Lexcray Pty Ltd v Northern Territory of Australia [2000] Ntca 4

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established