Rigby v Fuller; Firth v Clarke - [2021] NTSC 38

CITATION:Rigby v Fuller; Firth v Clarke [2021] NTSC 38
PARTIES:RIGBY, Kerry Leanne

v
FULLER, John Clifford

PARTIES:FIRTH, Justin Antony

v
CLARKE, Tegan Ann

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NOs:LCA 34 of 2020 (21926270)
LCA 35 of 2020 (21926271)
DELIVERED:  28 April 2021

HEARING DATE: 17 February 2021
JUDGMENT OF: Brownhill J
CATCHWORDS:
CRIME – Appeal and review – Appeal from Local Court to Supreme Court –
By prosecutor on a question of law alone
Respondents had outstanding fines and victims levies – Respondents
currently serving terms of imprisonment for other offending – Proceedings
relisted in Local Court – Respondents sought orders pursuant to s 26(2) of
Sentencing Act with intended effect that service of their existing terms
of imprisonment would discharge their liability to pay fines – Whether
Judge was in error in making these orders – Application of doctrine of
functus officio – Statutory construction – Whether there exists a statutory
exception allowing a court to exercise the power in s 26(2) after it becomes
functus officio – Whether enforcement option in s 26(2) is a necessary
consideration when a fine is imposed – Whether an order under s 26(2) is an
ancillary order external to sentence –Appeals allowed, orders quashed and
applications made to Local Court dismissed.
Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and
MRK [2006] NSWCCA 386; Attorney-General (NT) v Emmerson (2014) 253
CLR 393;Attorney-General (SA) v Bell (2013) 117 SASR 482; Bailey v
Marinoff (1971) 125 CLR 529; Bond Corporation Holdings Ltd v Australian
Broadcasting Tribunal (1988) 84 ALR 669; Cheatley v The Queen (1972)
127 CLR 291; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR
1; Director of Public Prosecutions v Helps [1994] NTSC 38; Director of
Public Prosecutions v Hofschuster (1995) 125 FLR 239; Ex parte Hassell
(1937) 37 SR (NSW) 192; Fa v Puffett (1978) 22 ALR 149; FAI General
Insurance v Southern Cross Exploration (1987-88) 165 CLR 268; Fardon v
Attorney-General (Qld) (2004) 223 CLR 575; George v O’Neill (2009) 24
NTLR 228; Graziers Association (NSW) v Australian Legion of Ex-
Servicemen and Women (1949) SR (NSW) 300; Jovanovic v R (1999) 106 A
Crim R 548; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd
(1985) 157 CLR 309; Kable v Director of Public Prosecutions (NSW) (1996)
189 CLR 51; Knight v Victoria (2017) 261 CLR 306; Lawrie v Lees (1881) 7
App Cas 19; McNicholl v Tothill (1988) 47 SASR 134; Metropolitan Gas Co
v Federated Gas Employees’ Industrial Union (1924) 35 CLR 449; Parkes
Rural Distributions v Glasson (1986) 7 NSWLR 332; Pfeiffer v Stevens
(2001) 209 CLR 57; Police v S [1997] SASC 6227; Police v Young
(unreported, LCNT, Huntingford, 13 November 2020); Project Blue Sky Inc
v Australian Broadcasting Authority (1998) 194 CLR 355; Psaras v Littman
(2006) 18 NTLR 189; R v Ford [1945] SASR 118; R v Haji-Noor (2007) 21
NTLR 127; Rigby v Dixon [2020] NTLC 8; SAS Trustee Corporation v Miles
(2018) 265 CLR 137; Trenerry v Garbe [1999] NTSC 66; Walker v Meredith
[2008] NTSC 23, referred to.

Constitution (Cth) Ch III.
Fines and Penalties (Recovery) (Consequential Amendments) Act 2001 (NT).
Fines and Penalties (Recovery) Act 2001 (NT) s 6, s 23, s 24, s 25, s 26, 27,
28, 35, 50, 51, 52, 53, 54, 55, 56, 58, 88, 89, Pt 3 Div 7, Pt 3 Div 7A, Pt 3
Div 7B, Pt 3 Div 8, Pt 3 Div 9, Pt 3 Div 10, Pt 5.
Firearms Act 1992 (NT) s 82.
Interpretation Act 1978 (NT) s 3, s 41, s 55, s 59, s 62A.
Local Court (Criminal Procedure) Act 1928 (NT) s 60AT, s 163.
Local Court Act 2015 (NT) s 3, s 4, s 5, s 7, s 9, s 18, Pt 3 Div 3.
Sentencing Act 1995 (NT) s 3, s 4, s 5, s 7, s 14, s 15, s 16, s 17, s 18, s 19,
s 24, s 26, s 27, s 28, s 29, s 37, s 38, s 39, s 39L, s 39N, s 42, s 43, s 47, s
48, s 48J, s 48L, s 53, s 54, s 55, s 55A, s 57, s 61, s 112, Pt 3, Pt 5.
Victims of Crime Assistance Act 2006 (NT) s 6, s 61.
REPRESENTATION:
Counsel:
Appellant:D Castor
Respondent:  A Abayasekara
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Northern Territory Legal Aid Commission
Judgment category classification:    B
Judgment ID Number:  Bro2109
Number of pages:  36

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Rigby v Fuller; Firth v Clarke [2021] NTSC 38
Nos. LCA 34 of 2020 (21926270); LCA 35 of 2020 (21926271)
BETWEEN:

KERRY LEANNE RIGBY

Appellant

AND:

JOHN CLIFFORD FULLER

Respondent

BETWEEN:

JUSTIN ANTONY FIRTH

Appellant

AND:

TEGAN ANN CLARKE

Respondent

CORAM: BROWNHILL J
REASONS FOR DECISION
(Delivered 28 April 2021)
Background

The ultimate issue in these proceedings is whether the power in s 26(2) of the Sentencing Act 1995 (NT), to order a person who has failed to pay their fines to be imprisoned, can be exercised after an offender has been sentenced and the criminal proceedings have otherwise been finally disposed of. Two appeals have been brought on behalf of the Crown pursuant to s 163 of the Local Court (Criminal Procedure) Act 1928 (NT) from orders made by the Local Court on 6 October 2020. The appeals were heard together because the orders appealed from were to the same effect, made in the same circumstances and relied upon the same statutory jurisdiction or power.
The respondents to the appeals each had a number of files relating to charges against them brought in the Local Court (or its predecessor). The respondent in the first appeal had at least eleven files in respect of which the Local Court had, on various dates between December 2012 and November 2019, imposed fines and victims levies[1] for various driving, breach of domestic violence order and minor drug offences committed between December 2012 and September 2019. The total amount of fines imposed in respect of those files was $13,090. The respondent in the second appeal had at least nine files in respect of which the Local Court had, on various dates between December 2013 and October 2020, imposed fines for various driving offences committed between September 2013 and January 2020. The total amount of fines imposed in respect of those files was $12,788.
On 17 July 2020, both respondents made application to the Local Court for a re-listing of the proceedings that were the subject of 13 files of the respondent in the first appeal and 9 files of the respondent in the second appeal, including the files referred to in paragraph [2] above.
On 6 October 2020, the re-listed matters were called on. The respondents sought orders pursuant to s 26(2) of the Sentencing Act 1995 (NT) across their respective files to the effect that, if the fines are not paid within 28 days of the date of the order, the offender is to be imprisoned until his or her liability to pay the fine is discharged. At the time of these applications, both respondents were serving terms of imprisonment imposed by the Supreme Court for other offending. The intended effect of the orders sought was that, by the service of their existing terms of imprisonment, the respondents would discharge their liability to pay the fines. It was argued that, whilst in custody and upon their release therefrom, the respondents had no capacity and no prospect of being able to pay or work off their fines.
On 6 October 2020, the Local Court made orders in respect of each respondent (‘the orders’) that warrants of commitment be issued if the fines and victims levies imposed on the files referred to in the listing notice are not paid within 28 days of the date of the order. While the source of the power to make the orders was not expressed by the Local Court in the orders themselves and there was some debate about whether the Local Court had the power to make the orders, it is apparent from the transcript that the Local Court acceded to the respondents’ applications which were founded upon s 26(2) of the Sentencing Act.
These appeals are brought by the Crown from those orders, essentially on the bases that, once the Court sentenced the respondents to the imposition of fines without exercising the power in s 26(2) of the Sentencing Act, the Court became functus officio precluding the making of any further order relating to sentencing or the fines, and the power in s 26(2) is not exercisable on any occasion after the court becomes functus officio.
The appeals relate to only one file for each respondent. The Crown argued that, if the Local Court lacked the power to make the orders on the files the subject of the appeals, that finding would apply equally to the remaining files the subject of the orders. I am not called on to determine whether that position accurately reflects the law.

Previous judicial consideration of the issue

There have been two other decisions of Local Court Judges asked to make similar orders in similar circumstances.[2] In both matters, the orders sought were refused on the basis that there is no power to make them in s 26(2) of the Sentencing Act.
In Walker v Meredith [2008] NTSC 23 (‘Walker v Meredith’), Mildren J allowed in part an appeal from a refusal of a Magistrate to make an order under s 26(2) in relation to victims levies and the forfeiture of a recognisance, some three years after the levies were imposed and the recognisance forfeited. The Magistrate had made an order under s 26(2) in respect of fines, but there was no appeal from that order. Mildren J held that as the victims levies were expressly defined as fines under the predecessor of the present Victims of Crime Assistance Act 2006 (NT), he was prepared to make an order under s 26(2) in the circumstances of that case. Both parties supported the making of the order and there was no argument put to the Court about an absence of power to make the order three years after the imposition of the victims levies. The decision therefore does not, as a matter of judicial comity, bind me in the determination of the present appeals, and offers little assistance in resolving them.
In Trenerry v Garbe [1999] NTSC 66, Martin CJ considered the question of an order under s 26(2) of the Sentencing Act in the context of an appeal against the sentence imposed by a Magistrate. Given that his Honour allowed the appeal and was resentencing the offender, the decision offers no assistance in the present appeals. An appeal is an acknowledged means by which the orders of a court may be revisited and, if the appeal is allowed, remade.
The jurisdiction of the Local Court to sentence
The Local Court is established by s 4 of the Local Court Act 2015 (NT). It is a court of record and a court of summary jurisdiction (s 5(1), (3)). The Local Court has the criminal jurisdiction set out in Part 3, Div 3 of the Local Court Act (s 9(b)).[3] By Div 3, the Local Court has jurisdiction (relevantly) to hear and determine a charge of a summary offence or an indictable offence that may be heard and determined summarily (s 18(1)).
It is implicit in the Local Court Act that the Local Court’s jurisdiction to hear and determine a charge of an offence includes the power to impose a sentence for the offence on the person charged.[4] Provisions of the Local Court (Criminal Procedure) Act confirm this. This Act applies in relation to the Court’s criminal jurisdiction as defined in s 3 of the Local Court Act (s 5). For example, s 60AT provides that the Local Court may indicate, if the defendant pleads guilty to a charge, that the Court would be likely to impose on the defendant a sentence of various types. Similarly, s 163(1) provides that a party to proceedings before the Local Court may appeal to the Supreme Court from a conviction, order or adjudication of the Court on a ground which involves a sentence.
Express statutory power to impose sentences is conferred on the Local Court by s 7 of the Sentencing Act, which provides that where “a court” finds a person guilty of an offence, it may, subject to any specific provision relating to the offence and Part 3 of the Sentencing Act, make one or more of the listed sentencing orders including, generally speaking, orders imposing terms of imprisonment and orders imposing fines. The Sentencing Act applies to all courts other than the Youth Justice Court (s 4, Sentencing Act).
A question of statutory construction
The ultimate issue in the appeals concerns the power in s 26(2) of the Sentencing Act. It is a question of statutory construction. Determination of the issue depends essentially upon the text of the relevant statutory provision considered in light of its context and purpose.[5] Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies.[6]
The respondents’ starting point is that s 26(2) does not expressly provide when the power it confers may be exercised and its language is consequently sufficiently broad to permit the power to be exercised after the sentencing process has otherwise ceased. The appellants’ starting point is that the relevant statutory provisions, including s 26(2), must be read in light of the doctrine of functus officio.
The relevant statutory provisions
As mentioned in paragraph [13] above, s 7 of the Sentencing Act permits a court which finds a person guilty of an offence to make one or more sentencing orders, which include ordering the offender to pay a fine (s 7(e)) and “[imposing] any sentence or [making] any order authorised by this or any other Act” (s 7(k)). The term “fine” is defined to mean the sum of money payable by an offender under an order of a court made on the offender being convicted or found guilty of an offence and includes costs but does not include money payable by way of restitution or compensation (s 3). Although not expressly mentioned, victims levies imposed by s 61(2) of the Victims of Crime Assistance Act fall within the definition of the term “fine” because they are part of the sum of money payable by an offender under an order of a court made on the offender being convicted or found guilty of an offence.
Part 3, Div 3 of the Sentencing Act deals with fines. Section 16 is headed “Power to fine”. Section 16(1) provides that if a person is found guilty of an offence, the court may fine the offender. Section 16(2) prescribes the maximum fine that a court may impose.
Section 17 is headed “Exercise of power to fine”. Section 17(1) provides that, where a court decides to fine an offender, it must, in determining the amount of the fine, 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. Section 17(2) provides that a court is not prevented from fining an offender only because it has not been informed about the matters in s 17(1). Section 17(3) requires the court to take into account any court order about confiscation of the proceeds of crime, restitution or compensation. Section 17(4) requires a court to give preference to restitution or compensation over a fine where it considers both to be appropriate but the offender has insufficient means to pay both. Section 17(5) also permits the court to take into account other things when fixing the amount of the fine.
Section 18 permits the court to impose an aggregate fine for two or more offences. Section 19 provides that a fine imposed by a court is to be paid within 28 days after it is imposed. Section 24 provides that a fine is to be paid into the Central Holding Authority if no other way of appropriating or applying it is prescribed by law. The terms of s 26 are set out in full below.
Section 27 permits a court to impose a fine or imprisonment or both where an Act confers a discretion to impose a fine or a period of imprisonment as the penalty. Section 28 permits a court to impose a fine instead of a period of imprisonment where imprisonment is the only prescribed penalty, and provides how the fine is to be calculated. Section 29 provides that the fine for a body corporate is five times the fine for an individual unless otherwise prescribed by the Act specifying the fine.
Section 26 is in the following terms:
26   Court may order commitment in default
(1) If a court imposes a fine on an offender under section 16(1), the fine may be enforced under the Fines and Penalties (Recovery) Act 2001 unless the court orders commitment in default under subsection (2).
(2)   A court may order that if a fine is not paid within 28 days the offender is to be imprisoned until his or her liability to pay the fine is discharged.
(3)   If a court makes an order under subsection (2) and the fine is not paid within 28 days, the court may issue a warrant of commitment in respect of the offender specifying the period of imprisonment calculated on the basis of the amount of the fine as follows:
(a)the period is to be one day for each amount (or part of that amount) prescribed for section 88 of the Fines and Penalties (Recovery) Act 2001 that comprises the fine;
(b)the period is not to be less than one day;
(c)the period is not to exceed 3 months.
(4)   If an offender serves the total period of imprisonment under a warrant under subsection (3), the fine is taken to be satisfied.
(5) If an offender serves part of the period of imprisonment under a warrant under subsection (3), the fine is to be taken to be partially satisfied by the amount calculated at the rate prescribed for section 88 of the Fines and Penalties (Recovery) Act 2001 for each day served.
(6)[7] Unless otherwise ordered by the court, any period of imprisonment that an offender has to serve as a result of an order under subsection (2) is to be served:
(a)cumulatively on any incomplete sentence or sentences of imprisonment imposed on the offender for the default of a payment of a fine or sum of money; and
(b)concurrently with any incomplete sentence or sentences of imprisonment imposed on the offender other than for the default of a payment of a fine or sum of money, whether the other sentence was or the other sentences were imposed before or at the same time as that term.
The following provisions of the Fines and Penalties (Recovery) Act 2001 (‘FPR Act’) are also relevant. Section 6 defines the term “fine” to mean a monetary penalty imposed by a court for an offence and includes, inter alia, a levy payable under Part 6 of the Victims of Crime Assistance Act.
Section 23(1) provides that a fine imposed by a court is to be paid within 28 days after it is imposed. Section 23(2) provides that a fine imposed by a court is to be paid to the Fines Recovery Unit (‘FRU’)[8] unless the court otherwise directs. Section 24(1) requires a registrar or court officer to cause written notice of a fine imposed by a court to be served on the person as soon as practicable after the fine is imposed. The notice is to specify the amount payable, the due date for payment and where and to whom the fine may be paid (s 24(4)). The notice must inform of arrangements that may be made for further time to pay the fine, of enforcement action that may be taken under the FPR Act if the fine is not paid by the due date and of enforcement costs that become payable if enforcement action is taken (s 24(5)). Section 25 permits application to be made to the FRU for further time to pay a fine. It provides that the decision of the FRU on an application is final and may not be appealed against, reviewed or called into question in any court or tribunal (s 25(5)). Section 26 permits the FRU to allow further time for the fine to be paid.
Part 5 deals with enforcement action. The FRU may take action under Part 5 in relation to the enforcement of an outstanding fine imposed by a court (s 35(1)(a)). An “outstanding fine” is one that has not been paid within the 28 days specified by s 23 or in accordance with arrangements made for further time to pay under s 26. The FRU may make a fine enforcement order against a person liable to pay a fine if the fine has not been paid by the due date or if the person is in default of arrangements made for further time to pay (s 50).

The FRU may not make a fine enforcement order if the person has applied for a rehearing of the matter or has lodged an appeal against the conviction or sentence and any fine enforcement order made before that occurs is stayed pending the outcome of the rehearing or appeal (s 51).
A fine enforcement order is to set out the amount payable being the amount of the fine and specified enforcement costs (s 52). Section 53 deals with the imposition of enforcement costs. Notice of the making of a fine enforcement order must be served on the fine defaulter (s 54). The content of the notice is set out in s 55. The final date for payment in a notice of the making of an enforcement order is 28 days after the date of the notice (s 56). The FRU may withdraw an enforcement order if it was made in error (s 58).
If a fine defaulter has not paid by the final date specified in the notice of the enforcement order, the FRU can:
(a)by Div 7, request the Registrar of Motor Vehicles to suspend their licence to drive or their motor vehicle registration;
(b)by Div 7A, immobilise their motor vehicle for a period not exceeding seven days;
(c)by Div 7B, publish on its website their full name and suburb of residence of, and the amount owed;
(d)by Div 8, take civil enforcement action against them, such as issuing a property seizure order or a garnishee order or registering a statutory charge on land;
(e)by Div 9, make a community work order (to which (relevantly) ss 37 and 39(1) of the Sentencing Act apply) requiring them to participate in an approved project in order to work off the amount that remains unpaid; and
(f)by Div 10, if a community work order is revoked (which may occur if the fine defaulter is not suitable for the community work or they have failed to comply with the order or associated requirements), by warrant commit them into the custody of the Commissioner of Correctional Services for the period of imprisonment calculated in accordance with Div 10 unless they pay the outstanding amount.
Section 88 sets out the method of calculation of the period of imprisonment for the purposes of a warrant under Div 10. It is in similar terms to s 26(3) of the Sentencing Act as set out in paragraph [21] above. Section 89 provides that if a fine defaulter serves the total period of imprisonment under a warrant under Div 10, all fines concerned are to be taken to be satisfied.
The doctrine of functus officio
It is trite that, in the absence of a statutory power to the contrary, once an order disposing of a court proceeding has been perfected by being drawn up as a record of a court, that proceeding is at an end in that court, and is in its substance beyond recall by that court, and the court has no power to add to, amend or detract from what it has done or to reinstate a proceeding of which it has finally disposed.[9] The rationale for the doctrine is founded upon the “obvious principle” that it is desirable that there be an end to litigation and on the view that it would be “mischievous” if there were jurisdiction to rehear a matter decided after a full hearing.[10]
This Court has held that the power in the Local Court (or its predecessor) to hear and determine a charge is not completed until the case has been dismissed or the accused has been found guilty and sentenced, that the Court will not be functus officio until that point,[11] but thereafter will be functus officio precluding the court from making any further sentencing orders in the nature of a penalty.[12]
The Full Court of the Supreme Court of South Australia has held that the Magistrates Court (a court of summary jurisdiction similar to the Local Court) is not functus officio until the final disposition of the case including sentence.[13] Further, in Police v S [1997] SASC 6227, Olsson J (Doyle CJ and Matheson J agreeing) held as follows:
…[W]hen a prosecution takes place, there is a single, indivisible trial process, which commences on plea and does not conclude until there has been a final adjudication as to guilt and (where appropriate) sentence and other ancillary matters; and that adjudication is perfected by formal signed, written entry of the outcome, in the court record.
The doctrine of functus officio is an important principle of the common law. It may be varied by statute. Generally speaking, given its importance, any legislative intention to vary its operation must be clearly apparent. This proposition is addressed in paragraphs [67]-[69] below.
Section 112(1) of the Sentencing Act gives a court an express power to reopen proceedings where it has, in or in connection with criminal proceedings, imposed a sentence that is not in accordance with the law or where it has failed to impose a sentence that it legally should have imposed. This is an express statutory exception to the doctrine of functus officio. That it is expressed, and of limited operation, is an indication that any legislative intention to vary the operation of the doctrine in relation to powers in the Sentencing Act will manifest through an express power to reopen proceedings such that, in the absence of an express power, there is no legislative intention to vary the operation of the doctrine.
The text of the provision read in context
Section 26(2) says that “a” court may make the commitment default order referred to. Section 26(1) says that if “a” court imposes a fine on an offender, the fine may be enforced under the FPR Act unless “the” court orders commitment default under s 26(2). The appellants submit that the court referred to in s 26(2) is consequently “the” court referred to in s 26(1), which is “the” court that imposes the fine. Support for this construction is found in s 16(1) and (2) in that s 16(2) refers to the maximum fine that “a” court may impose, which must be a reference to “the” court given the power to fine set out in s 16(1). Similarly, the appellants point to s 7 of the Sentencing Act, which provides that where “a” court finds a person guilty of an offence, “it” may make the sentencing orders referred to. The appellants’ submission is that these references are references to the particular judicial officer hearing and determining the charge (including sentencing), not the institution, thereby demonstrating that the power in s 26(2) is part of the sentencing process to be exercised by the determining judicial officer when the sentence is imposed and before the criminal process is complete.
As identified, there are two possibilities. The first is that the references to “court” are references to the institution, however constituted. If that is correct, these references are neutral in the statutory construction question. The second possibility is that the references to “court” are references to the particular Judge who constituted the court when finding the person guilty and imposing the fine. If that is correct, it is supportive of the appellants’ construction of s 26(2) as being exercisable only at the time of sentencing and not after the proceedings have otherwise ended.
Section 7 of the Local Court Act provides that, in particular proceedings, once the taking of evidence commences, the Local Court must be constituted by the same person until the proceedings are determined (ss 7(1), (2)). However, if the defendant in criminal proceedings pleads guilty and the proceedings are adjourned before the making of sentencing submissions commences, after that adjournment the Court need not be constituted by the same person as when the plea was entered but must be constituted by the same person after sentencing submissions commence and until the proceedings are determined (s 7(3)). However, there is an exception where the person who constituted the Court is unable to continue (due to death, vacation of office or illness, etc). In those circumstances, the Court may be constituted by a different person thereafter (s 7(4), (5), (6)). Relevantly, the effect of s 7 is that, save in the case of a Judge unable to continue, any sentencing orders to be made by the Court must be made by the Judge who heard the sentencing submissions.
In light of the possibility that the Court may be constituted by a different Judge even after sentencing submissions have commenced (in cases of inability to continue), it cannot be said that the references to “court” in ss 7 and 26(1) and (2) of the Sentencing Act are references to the Judge who constituted the Court at the time of imposing a fine. They must be references to the institution in order to accommodate what s 7 of the Local Court Act provides. Obviously, the longer the period between imposition of a fine and the making of an application for an order under s 26(2), the more likely the sentencing Judge is unable to continue. Hence, the references to “the court” are neutral in the statutory construction question.
Section 26(1) uses the present tense: if a court “imposes” a fine, the fine may be enforced under the FPR Act unless the court “orders” commitment in default under s 26(2). This may be a textual indication of a legislative expectation that the commitment in default order would be made when the court “imposes” the fine. On the other hand, the word used in s 26(2) is “if” the court imposes a fine, rather than “when”. It is also apparent that the provision is drafted without any use of the past tense even though that must be what is meant when the present tense is used. For example, s 26(3) says that if a court “makes” an order under s 26(2) and the fine “is” not paid within 28 days, the court may issue a warrant of commitment. Reference to the tense is therefore unhelpful in resolving the question of statutory construction.
Other statutory provisions and arguments of context
Consistently with the basic proposition that the text of a statutory provision must be construed in the context of the other provisions and the Act as a whole,[14] the parties made a number of arguments about the proper construction of s 26(2) by reference to other provisions of the Sentencing Act. Those arguments are considered below.
The exercise of the court’s discretion and relevant considerations
The respondents point to the absence from s 17 of the Sentencing Act, which sets out matters the court must or may take into account when deciding to fine an offender, of any reference to the means by which the fine may be enforced. This is said to indicate that the fine enforcement option contained in s 26(2) is not a consideration necessarily to be taken into account when the fine is imposed, supporting the construction that the power in s 26(2) need not be exercised at the time the fine is imposed. The argument is in part in response to the view expressed by Judge Armitage in Rigby v Dixon (at [11]) and adopted in Police v Young to the effect that because a commitment in default order is more punitive than the enforcement options available under the FPR Act, it can be assumed that when the court sentenced the offender by imposing a fine, it exercised the discretion under s 26(2) by choosing not to make a commitment in default order.
The respondents’ argument about s 17 is unpersuasive, for a number of reasons.
Firstly, s 17 prescribes considerations the court must and may take into account “in determining or fixing the amount of the fine”. Section 17 does not purport to prescribe considerations applicable to the court’s decision to impose a fine at all. Section 17(1) expressly identifies that s 17 operates “where a court decides to fine an offender”, ie it presupposes that that decision has been made.
Secondly, s 17 does not prescribe exhaustively the considerations the court may take into account. Section 17(5) expressly identifies that the court may have regard to the listed things “among other things”.
Thirdly, what s 17 says is not to the point when s 26(1) expressly applies the enforcement regime under the FPR Act to any fine imposed by a court, unless the court otherwise orders. In that way, enforcement of the fine automatically arises in every case and is dealt with by a default position created by the statute as soon as the court imposes a fine.
Dealing more directly with the view in Rigby v Dixon, it is clear and undisputed that the court’s discretion under s 26(2) can be exercised immediately upon the imposition of a fine. However, that the discretion may be enlivened (eg by an application for its exercise) or is enlivened (eg by the existence of the factual foundation for its exercise, namely the imposition of a fine) at a particular point in time does not necessarily identify the point at which the discretion ceases to be able to be enlivened (if this occurs upon application) or ceases to be enlivened (if this occurs upon the imposition of a fine). If that is accepted, to conclude that the discretion must be taken to have been exercised negatively upon the imposition of a fine presupposes: (a) that the discretion is enlivened upon the imposition of a fine; and, more importantly, (b) must be exercised at that time. That reasoning does not sustain or support the conclusion that the discretion cannot be exercised at some later time.
The respondents relied upon the observations of Mildren J in Walker v Meredith as to matters in that case which led to the positive exercise of the discretion under s 26(2) to make the point that, even when exercisable after the imposition of a fine, the discretion would be exercised sparingly. This appeared to be a response to potential concerns that accepting the existence of the power would “open the floodgates” and see a “flood” of people avoiding their fines by this means.
His Honour observed (at [14]) that the court should be reluctant to make an order under s 26(2) unless it was clear that the fine was never going to be paid and that there were no immediate prospects of the defendant being able to remit the fine by performing community service. His Honour noted (at [16]) that he had decided to make the commitment in default order because the amounts outstanding were small, the period of default was only one day’s imprisonment, the appellant was serving a lengthy term of imprisonment with little prospect of being able to pay the fine or work the fine off by community service and the application was supported by both parties. It was argued that exercising the discretion in such circumstances would be consistent with the purposes of the Sentencing Act and sentencing generally, which both provide for the punishment of an offender and assist in an offender’s rehabilitation.
As to whether the discretion will be exercised sparingly, there are two points of note. Firstly, while the amounts of the fines in that case were small (in the order of $300), the amounts of the fines in these cases are not. Secondly, given that the discretion in s 26(2) is unconfined (save that it must be exercised judicially), and that it may be anticipated that many people serving lengthy terms of imprisonment will not be in a position to pay their fines or work them off with community service, it cannot be accepted that courts will exercise the discretion sparingly, ie in a very limited number of cases.
As regards the statutory construction issue, if the discretion in s 26(2) is to be exercised with a view to both punishment and rehabilitation, it can more readily be seen to be an inherent part of the sentencing exercise, making it less likely to be exercisable after that process has ended. The nature of the power is considered further in paragraphs [52] to [60] below.
Other provisions that permit orders after sentencing is complete
The respondents pointed to various other provisions of the Sentencing Act which permit the making of orders after sentencing is completed in order to support the proposition that their construction of s 26(2) is not an aberration. There are provisions relating to applications for variation or review of sentencing orders,[15] provisions enabling courts to deal with breaches of sentencing orders[16] and a provision requiring the fixing of a new non-parole period.[17] These provisions expressly permit a court to revisit, amend, vary or revoke sentencing orders after the sentencing exercise would otherwise be complete.
The provisions either expressly require the making of an application (which must be to invoke the court’s jurisdiction afresh) or deal with a matter which necessarily can only arise after the sentencing exercise is at an end. They may, therefore, be contrasted with s 26(2), which does not make reference to an application and does not deal with a matter which can only arise after the sentencing exercise is at an end. Contrary to the respondents’ position, the provisions are support for the proposition that, where the legislative intent was to allow sentencing orders to be revisited in circumstances other than those which necessarily can only arise after the sentencing exercise is at an end, the Sentencing Act expressly provides for it, including by requiring an application to be made.
The nature of a s 26(2) order
In Rigby v Dixon, Judge Armitage observed (at [15]) that an order under s 26(2) is a sentencing order within s 7(k) and not an order that can be exercised independently of sentencing.
If an order under s 26(2) of the Sentencing Act is classed as, or of its nature comprises, an ancillary order external to the sentence imposed by the court, this would support the conclusion that the power in s 26(2) may be exercised after the end of the sentencing process. There are a number of difficulties with that classification or understanding of the order.
First, given the definition of the term “fine” in the Sentencing Act, an order under s 26(2) is not an order within s 7(e), but an order within s 7(k). All such orders are “sentencing orders”, but they may or may not constitute an act of sentencing or comprise a sentence within the meaning of the Sentencing Act.[18] The presence of s 26 in the part of the Sentencing Act headed “Sentences” (Part 3), rather than in the part of the Sentencing Act headed “Orders in addition to sentence” (Part 5), is an indication that an order under s 26(2) is not external to the sentencing process.[19]
Secondly, the respondents argued that the means of enforcement of a sentence is necessarily separate from and outside of the imposition of that sentence, and that s 26(2) relates to the means of enforcement. However, both s 26(1) and (2) import the enforcement mechanism for fines, temporally at least, into the sentencing process. In its terms, s 26(1) has effect from the time a court imposes a fine under s 16(1), and there is no dispute that the court can make an order under s 26(2) at the time of imposing the sentence. Furthermore, the s 26(2) order is a separate and prior step from the warrant of commitment the court may order under s 26(3) if the fine is unpaid for 28 days. It is possible to view the warrant of commitment under s 26(3) as the enforcement mechanism of the order under s 26(2), which can be seen as an order in the nature of a conditional sentence to imprisonment.
Thirdly, the appellants relied on the nature of an order under s 26(2) as punitive to submit that the order is part of the penalty for the offending and therefore part of the sentence. Reliance was placed on Director of Public Prosecutions v Hofschuster (1995) 125 FLR 239 (‘Hofschuster’), in which Thomas J held that an order under s 82(2) of the Firearms Act 1992 (NT) for forfeiture of a firearm belonging to a person sentenced for the commission of an offence was part of the penalty for the offence in question such that application for it should be made as part of the Crown’s submissions on sentence, and could not be entertained after sentence has been passed when the court is functus officio. Section 82 permitted the court to order firearms registered or possessed by an offender be forfeited “in addition to a penalty, if any, imposed under [the Firearms Act] or under some law relating to the offence”, and permitted the court to do so regardless of whether it dismisses the charge, discharges the person, releases the person without passing sentence or proceeds to sentence the person. Her Honour relied (at 243) on various authorities[20] to the effect that a forfeiture order is penal in character and part of the penalty for the offence.

The respondents submitted that an order under s 26(2) of the Sentencing Act is not of the same nature as a forfeiture order and could be distinguished therefrom. Reliance was placed on the express authorisation in s 5(4) of the Sentencing Act permitting the court “in sentencing the offender” to take into account certain types of forfeiture (but not other types), which was said to demonstrate that forfeiture of property is a consideration in the sentencing process.
To the extent that this was in part a submission that an order under s 26(2) is not penal in character, I cannot accept that proposition. An order exposing someone to imprisonment for up to three months is obviously penal or punitive in character.[21] Even if a person is already serving a term of imprisonment for offending unrelated to non-payment of fines, which by s 26(6)(b) will be concurrent with any sentence under s 26(3), such that serving their existing term will satisfy their liability to pay the fine under s 26(4), I cannot see how liability to serve the term of imprisonment is anything other than fundamentally penal. Even though, in those limited circumstances, it might be said to benefit the offender, the exposure to imprisonment consequent upon the s 26(2) order is clearly punitive. That exposure contrasts with the consequences for non-payment of the fine provided for by the FPR Act, which include procedures for allowing further time to pay and a hierarchy of enforcement mechanisms, with imprisonment as the last. An order under s 26(2) would replace that regime with a requirement to pay within 28 days or face imprisonment. It is, of its nature, penal.
In any event, in Attorney-General (SA) v Bell (2013) 117 SASR 482, after citing the passage from Police v S set out in paragraph [31] above, Blue J (Nicholson J agreeing) observed (at [132]-[133]) that ancillary orders such as orders as to costs, restitution, disqualification from holding or obtaining a drivers licence or a firearms licence and forfeiture to the Crown of a firearm are all orders made in and as an intrinsic part of the criminal proceeding in which the defendant is sentenced and must be made before the final disposition of the matter. Such orders were contrasted (at [134]) with forfeiture orders in relation to property comprising proceeds or instruments of crime, which the relevant statute expressly provided were to be made on application in civil proceedings.
This authority shows that it is not only forfeiture orders which may be considered an intrinsic part of the criminal proceeding. Those other orders are punitive in nature or otherwise naturally part of the sentencing proceeding. Likewise, an order of imprisonment for non-payment of a fine seems equally punitive in nature or otherwise naturally part of the sentencing proceeding.
The purpose of the fine enforcement regime
In Police v Young, Judge Huntingford founded her view that s 26(2) could not be exercised after sentencing was complete in part on the potential incentive the alternative construction would create for people not to pay their fines but to “save them up” for extinguishment when they might later be serving a period of imprisonment for some other offending.
Section 26 of the Sentencing Act was inserted by the Fines and Penalties (Recovery) (Consequential Amendments) Act 2001 (NT), which commenced operation on the same date as the FPR Act. The Bills for both Acts were introduced into the Legislative Assembly and passed as a package. The Second Reading Speech to the Bills makes clear that:
(a)The purpose of the Bills was to consolidate and reform the current systems of court fine and infringement notice enforcement with a new, more efficient, centralised enforcement regime.
(b)The Bills were to address concerns including the level of outstanding fine debt, the growth of the debt and the need to consider more appropriate strategies to reduce the debt.
(c)The regime was aimed at maintaining the integrity of the fine as an effective sanction for less serious criminal offences, and ensuring that those that can afford to pay a fine do so, with early payment of fines being encouraged by providing for a range of enforcement procedures and alternative methods of expiating the fine.
A statutory construction which promotes the purpose or object of the legislation is to be preferred to one which does not do so.[22] A construction of s 26(2) which would provide an incentive for offenders to fail to pay or take the other hierarchy of steps to expiate their fines, and to expiate them instead by concurrent service of a term of imprisonment imposed for other offending would not promote the purpose or object of the FPR Act or the Act that inserted s 26 into the Sentencing Act.

Application of s 41, Interpretation Act

Section 41(1) of the Interpretation Act 1978 (NT) provides (relevantly) that, where an Act confers a power, the power may be exercised from time to time as occasion requires. The respondents relied on this provision as supporting their construction of s 26(2) of the Sentencing Act. Like all provisions of the Interpretation Act, the application of s 41(1) to s 26(2) of the Sentencing Act yields to the appearance of an intention to the contrary in s 26(2) (s 3(3), Interpretation Act). That contrary intention can appear not only from the express terms or necessary implication of a legislative provision, but from the general character of the legislation itself.[23]
It has been held that legislative equivalents from other jurisdictions of s 41(1) of the Interpretation Act permit the exercise of a power so as to add to, subtract from or reverse the result of its previous exercise,[24] and so the donee of such a power is never functus officio.[25]
In the context of the acknowledged application, generally speaking, of the doctrine of functus officio to the exercise of judicial power by courts, it is difficult to see how s 41(1) assists in the determination of the present question of statutory construction. That doctrine is inconsistent with the effect of s 41(1) and because the Sentencing Act involves the jurisdiction of courts, it could be seen to have a general character which manifests an intention contrary to the application of s 41(1).
Limits on unconfined discretion and court’s jurisdiction
The respondents relied upon the principle that a discretion given in the widest language should not be subject to artificial limits not implicit in the context of the grant of the discretion.[26] They also relied on the extension of the force of that principle in relation to powers or discretions conferred upon a court.[27] It may be noted that, as regards the latter, Gaudron J observed in FAI General Insurance v Southern Cross Exploration (1987-88) 165 CLR 268 (‘FAI General Insurance’) (at 290):
There may be occasions when it is appropriate to approach the question of the proper meaning of the grant of power on the basis that only the clearest express intention can displace fundamental legal principle or basic policy considerations. However, as a conditional order for dismissal such as that presently under consideration neither renders the Court functus officio nor of itself precludes the bringing of fresh proceedings there is no question of fundamental legal principle or policy brought into issue by the grant of power in [the relevant rule]. That being so, and the language of the rule being such as to comprehend the power, [the relevant rule] must be construed as authorising the Court to [exercise the power in question].
It is apparent (from 289-290) that her Honour’s reference to “fundamental legal principle” is a reference to the doctrine of functus officio in the context of court proceedings, which her Honour said rests, at least in part, on the “obvious desirability that litigation should be brought to an end”.
In the present appeals, where imposition of the sentence would normally dispose of the criminal proceedings and render the sentencing court functus officio, this must be an occasion when it is appropriate to approach the question of the proper meaning of the grant of power in s 26(2) on the basis that only the clearest express intention can displace that fundamental legal principle.
Imprisonment outside the sentencing process
Although not raised by the parties, there is an additional matter which could be thought to bear on the proper construction of s 26(2) of the Sentencing Act. In Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 (‘Chu Kheng Lim’), Brennan, Deane and Dawson JJ observed (at 27) that there is a constitutional principle derived from Ch III of the Constitution that the involuntary detention of a person in custody by the state is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. That passage was applied as a step or was at least reflected in the reasoning of the majority of the High Court in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (‘Kable’)[28] in holding invalid State legislation which was found to be inconsistent with Ch III of the Constitution because it substantially impaired the institutional integrity of the Supreme Court of New South Wales so as to be incompatible with its role as a repository of federal jurisdiction under Ch III.[29]
If s 26(2) of the Sentencing Act permits a court to order a person to serve a term of imprisonment separately from and outside of the process of sentencing them for criminal guilt, it may involve the court[30] in the imposition of involuntary punitive detention in a manner which substantially impairs its institutional integrity in a way incompatible with its role as a repository of federal jurisdiction. Such a law would be contrary to Ch III of the Constitution and invalid.[31]
Where possible, statutes should be construed so as to be valid and within the power of the legislature to make.[32]
It is, however, unnecessary for the resolution of these appeals to determine whether s 26(2) would be constitutionally invalid on the identified basis if construed in the manner pressed by the respondents.
Conclusion and disposition
Leaving aside the question of constitutional invalidity, there are numerous indications in the text and context of s 26(2) of the Sentencing Act, as referred to above, which lead to the construction that s 26(2) does not alter and is subject to the operation of the doctrine of functus officio, with the effect that the power to make an order under s 26(2) cannot be exercised after an offender has been sentenced and the criminal proceedings have otherwise been finally disposed of.
It follows that the Judge had no power to make, and erred in making, the orders.
Consequently, the appeals are allowed, the orders are quashed and in their stead orders are made dismissing the applications made to the Local Court for orders under s 26(2) of the Sentencing Act.
There will be no order for costs.

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[1] Section 61(2) of the Victims of Crime Assistance Act 2006 (NT) imposes a levy on (relevantly) a person found guilty of an offence but not imprisoned for it. By s 61(4), the amount of the levy imposed under s 61(2) must be specified in the formal record of the finding of guilt and sentence and the notice thereof given to the person. By s 6(1)(b) of the Fines and Penalties (Recovery) Act 2001 (NT), a levy payable under s 61 of the Victims of Crime Assistance Act is included in the term “fine” within the meaning of that Act. Given that definition, my references in these reasons to “fines” will include the victims levies unless otherwise stated.

[2] See Rigby v Dixon [2020] NTLC 8 (‘Rigby v Dixon’) and Police v Young (unreported, LCNT, Huntingford, 13 November 2020) (‘Police v Young’).

[3] The term “criminal jurisdiction” is defined by s 3 to mean the jurisdiction of the Court under Part 3, Div 3.

[4] See Psaras v Littman (2006) 18 NTLR 189 (‘Psaras’) at [9]-[10] per Martin CJ.

[5] SAS Trustee Corporation v Miles (2018) 265 CLR 137 at [20] per Kiefel CJ, Bell and Nettle JJ, at [41] per Gageler J, at [64] per Edelman J.

[6] Ibid.

[7]Section 61 of the Sentencing Act is to the same effect.

[8] The FRU is established by s 27 of the FPR Act as a registry of the Local Court. Its functions are set out in s 28 and they including the making of orders for additional time to pay, the making of enforcement orders and the taking of enforcement action.

[9]See Bailey v Marinoff (1971) 125 CLR 529 (‘Bailey’) at 530 per Barwick CJ, at 531-532 per Menzies J, at 533 per Owen J, at 537 per Walsh J; Ex parte Hassell (1937) 37 SR (NSW) 192 at 195 per Davidson J; Graziers Association (NSW) v Australian Legion of Ex-Servicemen and Women (1949) SR (NSW) 300 at 303 per Jordan CJ; Jovanovic v R (1999) 106 A Crim R 548 at [15]-[16] per Wilcox, Miles and Weinberg JJ.

[10]See Bailey at 539 per Gibbs J (in dissent).

[11]George v O’Neill (2009) 24 NTLR 228 at [11] per Thomas J, citing Psaras at [28]-[29] per Martin CJ.

[12]Director of Public Prosecutions v Hofschuster (1995) 125 FLR 239 at 243 per Thomas J.

[13]McNicholl v Tothill (1988) 47 SASR 134.

[14]See, for example, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] per McHugh, Gummow, Kirby and Hayne JJ; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315 per Mason J; Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1924) 35 CLR 449 at 455 per Isaacs and Rich JJ.

[15]Such as ss 14, 38, 39L, 42, 47 and 48J.

[16]Such as ss 15, 39, 39N, 43, 48 and 48L.

[17]Section 57.

[18]In R v Haji-Noor (2007) 21 NTLR 127, the issue was whether a court making an order under s 43(5) of the Sentencing Act restoring a sentence or part sentence of imprisonment which had been suspended was sentencing an offender to be imprisoned within the meaning of ss 53, 54, 55 and 55A. At [82], Mildren J observed that the word “sentence” has a variety of meanings depending on the context in which it appears. At [85], his Honour observed that not every sentencing order within s 7 of the Sentencing Act is necessarily a “sentence”. At [87], his Honour held that an order made under s 43(5)(c) was sentencing an offender to be imprisoned within ss 53-55A.

[19]A heading to a Part of an Act is part of the Act: s 55(1), Interpretation Act 1978 (NT).

[20]Director of Public Prosecutions v Helps [1994] NTSC 38; Cheatley v The Queen (1972) 127 CLR 291; Fa v Puffett (1978) 22 ALR 149.

[21]See Chu Kheng Lim at 27 per Brennan, Deane and Dawson JJ.

[22]Interpretation Act 1978 (NT), s 62A.

[23]See, for example, Pfeiffer v Stevens (2001) 209 CLR 57 at [56] per McHugh J. The decision, relied on by the respondents, of the New South Wales Court of Criminal Appeal in Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386 is no more than an example of a case in which the statute in question was said to disclose, by express words, a contrary intention to the application of the equivalent of s 41(1) of the Interpretation Act.

[24]Bond Corporation Holdings Ltd v Australian Broadcasting Tribunal (1988) 84 ALR 669 at 678 per Gummow J; Lawrie v Lees (1881) 7 App Cas 19 at 29 per Lord Penzance, cited in Parkes Rural Distributions v Glasson (1986) 7 NSWLR 332 (‘Glasson’) at 335-336 per Glass JA.

[25]Glasson at 336 per Glass JA.

[26]Citing R v Ford [1945] SASR 118 at 121 per Mayo J.

[27]Citing FAI General Insurance at 290 per Gaudron J.

[28]See Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at [77] per Gummow J.

[29]The principle for which the decision in Kable stands has been formulated in this way by the High Court. See, for example, Knight v Victoria (2017) 261 CLR 306 at [5] and the authorities there cited in footnote 33.

[30]Both the Supreme Court of the Northern Territory and the Local Court are repositories of federal jurisdiction and are subject to the principle from Kable. See, for example, Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at [42] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ.

[31]These observations say nothing about the constitutional validity of the provisions of the FPR Act because those provisions do not, at least directly, involve the court in making orders of imprisonment. Even if they do so indirectly because the FRU is a registry of the Local Court, the effect of s 26(1) of the Sentencing Act is to apply the enforcement regime under the FPR Act to a fine imposed by a court under s 16(1) upon that imposition. By this means, the imprisonment prescribed by the FPR Act as enforcement for non-payment of a fine is properly seen to be an intrinsic part of the criminal proceeding, thereby saving it from any invalidity on the basis of the principle in Kable.

[32]Interpretation Act 1978 (NT), s 59.