Newcastle v Coffey - [2000] NTSC 21

Newcastle v Coffey [2000] NTSC 21
PARTIES:NOEL NEWCASTLE
and

MARK ANTHONY COFFEY

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NOS9921935 (JA14/2000)
DELIVERED:  13 April 2000
HEARING DATES:  29 March, 6 and 10 April 2000
JUDGMENT OF:  RILEY J
REPRESENTATION:
Counsel:
Appellant:Mr K Kilvington
Respondent:  Dr N Rogers
Solicitors:
Appellant:Central Australian Aboriginal Legal Aid Service
Respondent:  Office of the Director of Public Prosecution
Judgment category classification:    B
Judgment ID Number:  ril0007
Number of pages:  10

ril0007
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Newcastle v Coffey [2000] NTSC 21

No 9921935 (JA14/2000)

IN THE MATTER OF the Justices Act
AND IN THE MATTER OF an appeal against sentence handed down in the Court of Summary Jurisdiction at Alice Springs

BETWEEN:
NOEL NEWCASTLE

Appellant
AND:
MARK ANTHONY COFFEY

Respondent

CORAM: RILEY J
REASONS FOR DECISION
(Delivered 13 April 2000)

On 1 February 2000 the appellant was convicted of unlawfully damaging property contrary to s 251(1) of the Criminal Code and was punished by the imposition of a fine in the sum of $1000, together with a victim levy of $20. In default of payment the appellant was to be imprisoned for a period of 14 days.
The appellant appeals against the sentence on the bases (1) that it is manifestly excessive, (2) that the sentencing Magistrate erred in failing to take into account or to properly take into account the limited financial means of the appellant and (3) that he also erred by imposing a period of imprisonment in default of payment which was manifestly excessive and disproportionate to the objective seriousness of the offence.
In the course of the hearing before me Dr Rogers, on behalf of the respondent, conceded that the appeal should be allowed on the grounds that the fine was manifestly excessive and that the learned Magistrate did not have before him sufficient material to enable him to properly consider the financial circumstances of the appellant. Dr Rogers did not object to me receiving fresh material concerning the appellant’s earning capacity and did not object to me proceeding to re-sentence the appellant on the basis of that information.
In my view the concessions were correctly made. Section 17 of the Sentencing Act requires that a court in determining the amount of a fine which is to be paid shall take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose on the offender. Whilst the Court is not prevented from fining an offender because it has not been able to find out what the financial circumstances of the offender are, or what is the nature of the burden that payment of a fine will impose upon the offender, the Court in this case proceeded in the absence of such information when it could have been provided.
In addition, in my view, the fine of $1000 in…

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.

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Details

Case: [2000] NTSC 21
Decision Date: 13 April 2000

CaseChat Overview and Summary

Noel Newcastle appeals against his conviction and sentence. The appellant was convicted of damaging property, contrary to section 251(1) of the Criminal Code, and was sentenced to a fine of $1000, with a victim levy of $20. The appellant was also to be imprisoned for 14 days in default of payment. The appeal is based on the grounds that the sentence was manifestly excessive, that the sentencing magistrate failed to properly take into account the limited financial means of the appellant and that the period of imprisonment imposed in default of payment was excessive and disproportionate to the objective seriousness of the offence. The respondent conceded that the appeal should be allowed on the grounds that the fine was manifestly excessive and that the learned magistrate did not have before him sufficient material to enable him to properly consider the financial circumstances of the appellant. The judge accepted the concessions and allowed the appeal. The judge found that the fine was manifestly excessive and that the sentencing magistrate did not have before him sufficient material to enable him to properly consider the financial circumstances of the appellant. The judge also found that the period of imprisonment imposed in default of payment was excessive and disproportionate to the objective seriousness of the offence. The judge imposed a fine of $200 plus a victim levy of $20 and set a default period of two days imprisonment.
The judge rejected the respondent's submission that the phrase "within the limits fixed by the following scale" in section 81(1) of the Justices Act established the most severe default period which may lawfully be set as being one day per $50 or part thereof. The judge held that the intention of the legislature was to provide the Court or Justice with a discretion in setting a default rate but to contain the exercise of the discretion within outer limits. The judge held that the period of imprisonment imposed would be "within the limits" or, put another way, would not exceed, the period of imprisonment provided for in the scale. The judge held that the Court or Justice is required to exercise a discretion having regard to all of the circumstances of the matter before it. The judge held that what will be an appropriate rate must be determined in all of the circumstances of a particular case. The judge held that it is not appropriate to prescribe conditions or criteria to be considered. The judge held that matters that may be considered may include those set out in section 5 of the Sentencing Act and, in particular, the requirement that the punishment of the offender shall be "to an extent or in a way that is just in all the circumstances".

Orders