Nandan v Tasmania - [2009] TASSC 75

[2009] TASSC 75

COURT: SUPREME COURT OF TASMANIA

CITATION: Nandan v Tasmania [2009] TASSC 75

PARTIES: NANDAN, Thomas Satya
v

STATE OF TASMANIA

FILE NO/S:  LCA 1144/2008
DELIVERED ON:  4 September 2009
DELIVERED AT:  Hobart
HEARING DATE:  26 August 2009
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Fines – Amount – Ability to pay – Asset position not disclosed – Possibility of imprisonment if default.

Monetary Penalties Enforcement Act 2005 (Tas), s103.
Young v Geddie (1978) 45 FLR 400; Broughton v Lowe [1979] Tas R 309 (NC 7), 20/1979; Kaye v Vagg(No 2) (1984) 11 A Crim R 127; Fraser v R (1985) 20 A Crim R 4, referred to.
Aust Dig Criminal Law [3413]

REPRESENTATION:

Counsel:
             Applicant:  P Warmbrunn
             Respondent:  S Nicholson
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2009] TASSC 75
Number of paragraphs: 37

Serial No 75/2009
File No LCA 1144/2008

NANDAN v TASMANIA

REASONS FOR JUDGMENT BLOW J
4 September 2009

This is a motion for the review of an order by which a magistrate fined the applicant $50,000. The applicant contends that the fine was manifestly excessive. Amongst other things, he contends that it was manifestly excessive because it was beyond his reasonable capacity to pay.

The fine was a global penalty imposed in respect of 150 offences, all but one of which were for contraventions of the Security and Investigations Agents Act 2002 ("the Act"). Amongst other things, that Act makes provision for the licensing and regulation of crowd controllers, and of those who employ crowd controllers and make their services available to others. During 2007 the applicant carried on a business under the name Mojo Security Services, employing crowd controllers, and making their services available for a fee. That business name was not registered. Over a period of about six months, from 29 March 2007 to 15 September 2007, there were many occasions when the applicant employed unlicensed crowd controllers to work at establishments called the Men's Gallery and the Granada Tavern. He charged a fee for providing their services. The Act, s35C, required him to maintain a register containing information as to the crowd controllers on duty, and any incidents involving physical contact with other persons, but he did not maintain such a register at either of the two establishments.

The applicant's offending was investigated by Consumer Affairs officers in October 2007. The applicant took part in an interview by those officers on 6 November 2007. He held a crowd control agent's licence which expired in January 2008. He applied to renew it but, because there was a possibility of him being charged with offences under the Act, no renewal was forthcoming. He had a contract to provide crowd control for a major tennis tournament that month. He decided to honour his contract. Although unlicensed, he provided crowd controllers for that event. Two of them were unlicensed. He received a fee for providing their services.

The 150 charges to which the applicant pleaded…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nandan v Tasmania

Details

AGLC: Nandan v Tasmania [2009] TASSC 75
Case: [2009] TASSC 75
Decision Date: 4 September 2009

CaseChat Overview and Summary

In Nandan v Tasmania, the defendant, Nandan, appealed against a sentence imposed by the Magistrates Court of Tasmania. The case involved a dispute regarding the imposition of a substantial fine by the court, which Nandan argued was inappropriate due to his financial situation. The Court of Appeal was tasked with determining whether the Magistrates Court had correctly exercised its discretion in imposing the fine and whether the fine was appropriate given Nandan's financial circumstances.

The central legal issues in the appeal revolved around the Magistrates Court's discretion in sentencing and its consideration of Nandan's ability to pay the fine. Specifically, the appeal focused on whether the Magistrates Court had adequately considered Nandan's financial position and whether the imposition of the fine, coupled with the threat of imprisonment for default, was just and appropriate. The Court of Appeal had to assess if the fine was proportionate to the offence and if the Magistrates Court had sufficiently taken into account Nandan's inability to pay.

The Court of Appeal found that the Magistrates Court had not adequately considered Nandan's financial position as it was not fully disclosed at the time of sentencing. The court emphasised that a proper sentencing process requires a comprehensive understanding of the defendant's financial circumstances to ensure that any imposed fine is just and appropriate. The Court of Appeal concluded that the Magistrates Court had failed to exercise its discretion correctly by not sufficiently addressing Nandan's inability to pay the fine. As a result, the appeal was allowed, and the matter was remitted to the Magistrates Court for re-sentencing.

The final orders of the Court of Appeal were that the sentence imposed by the Magistrates Court be quashed and the matter be remitted to the Magistrates Court for re-sentencing, with proper consideration of Nandan's financial circumstances. This decision underscores the importance of a thorough assessment of a defendant's financial position in the sentencing process.

Orders