Murfet v Clerk of Petty Sessions
[2003] TASSC 88
•19 September 2003
[2003] TASSC 88
CITATION: Murfet v Clerk of Petty Sessions [2003] TASSC 88
PARTIES: MURFET, Ivan Dwayne
v
CLERK OF PETTY SESSIONS
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 53/2003
DELIVERED ON: 19 September 2003
DELIVERED AT: Hobart
HEARING DATES: 17 September 2003
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 directing that civil proceedings be taken against offender.
Sentencing Act 1997 (Tas), ss47, 53.
Magistrates Court (Civil Division) Act 1992 (Tas), s31A.
Campbell v Turner [2001] TASSC 91; Briant v Bessell (1994) 74 A Crim R 204, followed.
Aust Dig Magistrates [147]
REPRESENTATION:
Counsel:
Applicant: K Cuthbertson
Respondent: F C Neasey
Solicitors:
Applicant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2003] TASSC 88
Number of Paragraphs: 16
Serial No 88/2003
File No LCA 53/2003
IVAN DWAYNE MURFET v CLERK OF PETTY SESSIONS
REASONS FOR JUDGMENT SLICER J
19 September 2003
The applicant was charged by complaint dated 11 February 1997 with offences contrary to the Fisheries Rules 1986, rr29 and 32. He appeared in the court of petty sessions on 16 September 1997 and was remanded on bail for plea. On 6 October 1997, he entered a plea of not guilty and the matter was adjourned for hearing. The offences were the unlawful possession of 631 abalone and the possession of a further 339 abalone which were less than the prescribed weight. The experience of the courts is that such cases are subject to lengthy delay, often at the behest of a defendant. Between the date first fixed for hearing, 23 December 1997, and the date of conviction and penalty, 1 September 1998, there were nine further remand dates, some of which involved legal argument and at least two on which the applicant did not appear.
On 1 September 1998, the applicant changed his plea to one of guilty. He was convicted, fined the sum of $7,500 and, in accordance with the combined effect of the Living Marine Resources Management Act 1995 and the Fisheries Rules, ordered to pay a special penalty in the assessed sum of $80,730. The court of petty sessions ordered that the fine and penalty be paid by instalments of $100 per month. The applicant appealed the penalty by way of motion to review (LCA 33/1998) dated 7 September 1998, claiming error in the calculation of the special penalty. He did little to advance his appeal which was not proceeded with and dismissed on 28 September 1998. His explanation that he believed the appeal to be "on foot" is not credible.
The applicant made no attempt to pay the fine or special penalty by way of the instalments ordered by the court. He claimed in his affidavit in support of an application for an extension of time to bring this appeal that he did not pay the instalments because his "brother [a co-defendant] had advised [him] that it was not necessary to pay until the appeal was determined". Nothing was done, and on 25 March 1999, the applicant was arrested on warrant for non-payment. At that time the outstanding amount was $88,254.
On 5 May and 9 June 1999, the applicant was granted further adjournments, but he failed to appear on 24 June. He appeared on 1 September 1999 and admitted the amount owing. He appeared late on the day of 8 September and was then directed to appear on 29 September when the order, subject to this motion to review, was made. On that day the court of petty sessions sentenced the defaulter to 884 days' imprisonment, suspended for six months on condition that the applicant pay the outstanding amount within six months. The calculation of the term of imprisonment was made in accordance with the mandatory requirements of, and method employed by, the Sentencing Act 1997 ("the Act"), s50.
The options available to the sentencing magistrate were restricted. The Act, s47, relevantly provides:
"47 ¾ (1) If an offender who has been ordered by a court to pay a fine is in default of payment of that fine, a clerk of petty sessions may issue a warrant to apprehend the offender.
(2) If an offender against whom a warrant has been issued under subsection (1) fails to pay the fine in respect of which the warrant is issued, together with the prescribed costs of the warrant, a magistrate, on the offender being brought or otherwise appearing before that magistrate, may ¾
(a) make a community service order against the offender specifying the amount of community service or other activity that the offender is required to do calculated in accordance with section 48; or
(b) direct that civil proceedings be taken against the offender under the Magistrates Court (Civil Division) Act 1992; or
(c) issue a warrant of commitment against the offender for a term of imprisonment calculated in accordance with section 50 in respect of the outstanding amount of the fine.
…
(4) If an offender is sentenced pursuant to subsection (2)(c), the magistrate may suspend the execution of a warrant of commitment in respect of that imprisonment for a period not exceeding 6 months for the purpose of allowing the offender to pay the outstanding amount of the fine and any such suspension may be made on such conditions as the court thinks fit."
Between 29 September 1999 and 25 May 2001, the applicant paid a total of $1,050 towards the outstanding amount. Any issue which might be raised by the operation of the Act, s47(2)(5) is not the subject of this appeal. The learned magistrate was faced with a difficult decision. The offender had not availed himself of the generous terms of the order made in 1998 or opportunities afforded by reason of the adjournments granted in 1999. The learned magistrate was required to give effect to mandatory statutory penalties against a person who had shown disdain for the legal process. Options open to the court were limited. It was obvious that the applicant was unable to pay the owed amount of $87,204 within the six month period, yet an order permitting civil proceedings could prove to be a futile exercise and the original sanction required by Parliament rendered meaningless. Given Parliament's requirement for mandatory penalties, it is reasonable to expect a realistic method of enforcement and legislative attention ought be given to this issue of public policy.
The grounds of the notice to review claim error in that:
"1 The learned magistrate erred in fact and/or in law in issuing a warrant of commitment against the applicant in circumstances where the applicant did not have, and since the imposition of the fine and special penalty had not had, the means to pay $88304.
2 The learned magistrate erred in fact and/or in law by issuing a warrant of commitment against the applicant and suspending the execution of the warrant for a period of 6 months upon condition that the applicant pay $88304 during the period of suspension in circumstances in which he could not be satisfied that it was reasonable to expect the applicant to be able to pay that amount within that time."
The operation of the legislative scheme in the initial imposition of penalty and the subsequent enforcement proceedings was considered by Zeeman J in Briant v Bessell (1994) 74 A Crim R 204 in the following terms, at 207:
"The first of those principles proceeds from a more fundamental principle of sentencing, namely that an offender ought not be required to pay a fine which is beyond that offender's reasonable capacity to pay (see, eg, Kaye v Vagg (No 2) (1984) 11 A Crim R 127). That principle can have no application to fines imposed in obedience to s17, at least where a minimum fine is imposed, because by providing for minimum penalties Parliament has abrogated the principle that no fine ought to be imposed which is beyond the offender's capacity to pay. Plainly Parliament intended that in some cases an offender would be required to pay a fine beyond the capacity of that offender to pay. Usually the financial circumstances of the offender would not constitute special circumstances within the meaning of s17(5) so as to permit of the imposition of a fine less than the statutory minimum (Davies v Kennedy A81/1992). It is implicit from the scheme of statutory minimum fines that fines will be imposed upon offenders who are without means to pay them.
…The second of those principles proceeds upon the basis that the failure to pay a fine is met by the imposition of a term of imprisonment in default. The present state of the law of this State is such that it is unlikely that an offender who has failed to pay a fine imposed by a court of summary jurisdiction and who has not at the material times had the means to pay it will be required to serve a term of imprisonment in default. A failure to pay a fine no longer results in automatic imprisonment."
In relation to the exercise of discretion, his Honour said, at 208:
"At least in the absence of the defaulter seeking to have the fine satisfied by serving a term of imprisonment, it would be wrong for justices to commit the defaulter forthwith unless the defaulter has, or since the imposition of the fine has had, the means to pay it, or to order that the defaulter be committed but suspend the execution of the warrant unless the justices are satisfied that it is reasonable to expect that the offender will be able to pay the outstanding amount during the period of the suspension."
However the discretion does not necessarily require that capacity to pay be regarded as an absolute bar, since "In cases where no attempt has been made to pay the fine … they [the principles governing discretion] would have little impact." Campbell v Turner [2001] TASSC 91 at par11.
Here, despite continued default, it is clear that the amount of effort by the defaulter would have entitled him to meet the term of suspension.
Absent legislative reform, it is possible to reconcile the conflicting consequences of public policy. A direction in accordance with the Act, s47(2)(b) that "civil proceedings be taken against the offender under the Magistrates Court (Civil Division) Act 1992" does not necessarily render a defaulter immune from a potential custodial sentence. The Magistrates Court (Civil Division) Act, s31A, affords the court:
"… the same powers in relation to the enforcement of its judgments and orders as the Supreme Court has in relation to the enforcement of its judgments and orders."
There is no reason why upon referral under the Act, s47, agreement cannot be reached as to terms of payment by way of instalments. The Act, s53(2) provides:
"(2) An action to enforce the fine under the Magistrates Court (Civil Division) Act 1992 pursuant to this section does not preclude action being taken or continued under section 47 against the offender in default."
Default of agreed terms or unreasonable refusal to negotiate an appropriate method would constitute a basis for transfer to permit reconsideration of the options afforded by the Act. This Court will give effect to that method in the determination of these proceedings.
Conclusion
The learned magistrate was required to take into account the incapacity of the applicant to pay the required amount within the time permitted by legislation. The motion to review is upheld.
The applicant, as of 19 September, has served 520 days of imprisonment. The Act, s51(1) provides:
"If an offender is committed to prison pursuant to a warrant of commitment issued under this Part, the amount in respect of which the warrant was issued is reduced by one prescribed unit for each day served in prison pursuant to the warrant."
The amount remaining unpaid is to be reduced by the sum of $52,000, leaving a figure of $35,204. That unpaid amount will be transferred to the magistrates court.
Orders:
(1) The motion to review is granted.
(2) The determination of the court of petty sessions is quashed.
(3)In lieu thereof, the Court directs that civil proceedings be taken against the offender under the Magistrates Court (Civil Division) Act 1992.
The Court suggests, but does not require, as suitable terms of payment of the civil debt, payment at the rate of $100 per month.
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