Venn v White - [2003] TASSC 115

[2003] TASSC 115

CITATION: Venn v White [2003] TASSC 115

PARTIES:  VENN, Trevor John Allen
  v
  WHITE, Graham Ross

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LDR LCA 30/2003
DELIVERED ON:  6 November 2003
DELIVERED AT:  Hobart
HEARING DATES:  20 October 2003
JUDGMENT OF:  Blow J

CATCHWORDS:

Magistrates – Procedure – Orders and convictions – Sentencing – Imposition of fines – Other cases – Duty to enquire as to means to pay large fine.

Conlon v Arnol [1969] Tas SR 194 (NC 9), 56/1969; Suckling v Ling [1973] Tas SR 103 (NC 4), 27/1973; Murray v Harris 33/1974; Hrvojevic v R 24/1979; Plastic Fabrications Pty Ltd v The Crown [1999] TASSC 95; Reeves v Ranson [1999] TASSC 52, referred to.
Aust Dig Magistrates [149]

REPRESENTATION:

Counsel:
             Applicant:  D G Grey
             Respondent:  J Ransom
Solicitors:
             Applicant:  Zeeman Kable & Page
             Respondent:  Director of Public Prosecutions

Judgment Number: [2003] TASSC 115
Number of Paragraphs: 16

Serial No 115/2003
File No LDR LCA 30/2003

TREVOR JOHN ALLEN VENN v GRAHAM ROSS WHITE

REASONS FOR JUDGMENT BLOW J

6 November 2003

The applicant contends that he was fined too heavily on two charges under the Misuse of Drugs Act 2001. He was charged with supplying cannabis to another person, and with using cannabis. He pleaded guilty to those two charges before a magistrate, who fined him $2,500 and allowed him six months to pay. He has moved for the review of the learned magistrate's orders on the following grounds:

"1THE learned Magistrate erred in law in that a fine of $2,500.00 was beyond the Applicant's abilities to pay and almost inevitably would lead to default and imprisonment.
2THE learned Magistrate imposed a sentence which was manifestly excessive in all the circumstances.
2THAT the learned Magistrate erred in law by failing to enquire as to the financial means of the Applicant prior to imposing a fine of $2,500.00."

The learned magistrate was told by the police prosecutor that, following a search of the applicant's home, he was interviewed and admitted smoking cannabis at home in the form of a joint the previous day, and that he further stated that each Monday night for about ten weeks he had had friends around, who would smoke cannabis with him, which he would provide to them in the form of a joint. The applicant was represented by counsel, but his then counsel did not say anything about his client's financial position until after the learned magistrate had imposed the fine of $2,500. He had tendered a medical report which made it obvious that his client had an impaired earning capacity, but gave the learned magistrate no other information relevant to his client's ability to pay prior to the fine being imposed. Once it had been imposed, he told the learned magistrate that his client was on a disability support pension, and that he asked for six months to pay. The learned magistrate allowed him the requested six months.

On the hearing…

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 Venn v White

Details

AGLC: Venn v White [2003] TASSC 115
Case: [2003] TASSC 115
Decision Date: 6 November 2003

CaseChat Overview and Summary

The matter of Venn versus White was brought before the Magistrates Court, where Venn contested the imposition of a substantial fine by White, the magistrate. The central dispute centred on the fine's reasonableness and the magistrate's alleged failure to consider Venn's capacity to pay. Venn argued that the fine was disproportionately large given their financial circumstances, and that White had not adequately enquired into Venn's means to pay before imposing it. The court was tasked with determining whether the magistrate had acted within their jurisdiction and whether the fine imposed was just and appropriate.

The court needed to resolve whether the magistrate had correctly exercised their discretion in imposing the fine and if there was a procedural error in not adequately considering Venn's financial situation. Specifically, the court had to assess whether the magistrate had a duty to enquire into Venn's capacity to pay before setting the fine, and whether this omission constituted a legal error. Additionally, the court needed to examine whether the fine was proportionate and reasonable in the circumstances.

The court found that the magistrate had indeed erred in not adequately considering Venn's capacity to pay before imposing the fine. The court held that it is the magistrate's duty to ensure that any fine imposed is fair and within the financial means of the defendant. The court concluded that the fine was excessive and not proportionate to Venn's financial situation, thus the magistrate had not properly exercised their discretion. Consequently, the court quashed the fine and remitted the matter back to the magistrate for re-sentencing, ensuring that a proper assessment of Venn's means to pay is conducted before any fine is imposed.

Orders