Venn v White
[2003] TASSC 115
•6 November 2003
[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 of the motion to review, counsel for the respondent consented to the reading of an affidavit as to the applicant's income and expenditure. He receives pension payments of $426 per fortnight, from which he spends $125 per fortnight on rent and $280 per fortnight on "bills and food". I do not think that affidavit makes the applicant's position any stronger in relation to any of the three grounds of appeal. I have to decide in relation to each ground whether the course taken by the learned magistrate involved error on his part in the circumstances then existing. Particulars of the information that he did not have at the relevant time cannot assist me in determining whether he erred. Furthermore, the information in the affidavit is incomplete in that no reference is made to the applicant's assets or liabilities. For all I know, he might have had a car worth over $2,500 that he was willing to sell for the purposes of paying the fine. The medical report contained information that he suffered a knee injury as a result of an assault in the year 2000, but there is no information as to the claiming or payment of damages or criminal injuries compensation in respect of that injury.
It is well established that, subject to any statutory requirements as to minimum or mandatory fines, an offender must not be fined an amount that is beyond his or her reasonable capacity to pay: Broughton v Lowe [1979] Tas R 309 (NC 7), 20/1979; Devlyn v Lowe 31/1980; Kaye v Vagg (No 2) (1984) 11 A Crim R 127; Maynard v White A108/1994; McNamara (1978) 2 Crim LJ 170; Young v Geddie (1978) 45 FLR 400; Reeves v Ranson [1999] TASSC 52 at par18.
There is a body of case law suggesting that the exercise of a sentencing discretion will be vitiated if a magistrate or judge acts on insufficient materials, and that a sentencing judge or magistrate sometimes has a duty to inform himself or herself as to matters relevant to the exercise of the sentencing discretion. In Conlon v Arnol [1969] Tas SR 194 (NC 9), 56/1969, Chambers J quashed a sentence of imprisonment and substituted a fine after holding that the sentencing magistrate "had insufficient information with regard to the offence and to the offender to enable him to exercise a proper judicial discretion".
In Suckling v Ling [1973] Tas SR 103 (NC 4), 27/1973, Nettlefold J had allowed a motion to review on two grounds, one of which was that the sentencing magistrate had acted on insufficient materials. The Full Court restored the orders of the magistrate, but Burbury CJ, delivering the judgment of that court, said (27/1973 at 2), "It was for the applicant defendants on the Motion to Review to show that the learned Magistrate acted on insufficient materials."
In Murray v Harris 33/1974, Green CJ said at 1 – 2:
"… insofar as the court is considering the personal circumstances and background of the defendant, it is quite clear that the court has the power to ensure that it is properly informed as to those circumstances and background, and that the failure to exercise that power may vitiate the exercise of the sentencing discretion".
His Honour went on to allow the appeal before him on the ground that the sentencing magistrate had insufficient materials before him to enable him to properly exercise his discretion.
In Hrvojeivc v R 24/1979, it was argued that the failure of the sentencing judge to obtain a pre-sentence report resulted in the materials before him being insufficient for the proper exercise of his sentencing discretion, and that the exercise of that discretion had therefore been vitiated. The Court of Criminal Appeal rejected that argument and dismissed the appeal, but both Green CJ and Neasey J referred to the above cases with approval. Green CJ said at 1:
"It is clear that a failure by a trial Judge to obtain a pre-sentence report is capable of vitiating the exercise of his sentencing discretion if as a result the materials before him are insufficient to enable him to properly consider all the factors which he is required to consider before passing sentence".
Neasey J said at 2:
"It was for the applicant to show that the trial judge in imposing sentence acted on insufficient materials in the sense that he could and reasonably should have had more adequate information before him. The judge was not of course bound to acquire information relevant to sentence in any particular form, and in the present case he had the benefit of submissions from experienced counsel for the applicant. Whether exercise of a sentencing discretion has been vitiated by reasons of the tribunal having acted on insufficient materials in the above sense is a question depending upon the circumstances of the particular case …".
In Reeves v Ranson (supra), the applicant had been represented by counsel before the sentencing magistrate, who had imposed substantial fines. Crawford J dismissed the motion to review but said, at par21:
"If the applicant had not been represented by counsel, and no indication was given to the magistrate of his financial circumstances, it might well be arguable that the magistrate should have at least inquired about his financial position before determining the quantum of the fine. But it is unnecessary for me to decide that question."
In Plastic Fabrications Pty Ltd v The Crown [1999] TASSC 95, Underwood J quashed a fine of $8,000 imposed by a magistrate on the ground that it was manifestly excessive. There was a second ground of appeal, to the effect that the magistrate had erred in imposing the fine without having any information as to the applicant's financial position, and without making any enquiries as to it. His Honour commented at par19 that there is no rule of law to the effect that it is an error to impose a pecuniary penalty without having information to, or without making any enquiries as to, the capacity of a defendant to meet the fine. His Honour went on to cite the comments made by Crawford J in the passage I have just quoted from Reeves v Ranson, and to distinguish them on the basis that the sentencing magistrate had been told that the applicant was a successful corporation, having been in business for more than 25 years, and that the applicant's counsel, whom his Honour described as "senior and experienced", would no doubt have put to the magistrate any material relevant to the capacity of the applicant to pay any pecuniary penalty. I think Plastic Fabrications in this context is authority only for the proposition that it is not necessarily an error to impose a pecuniary penalty without having information relating to the capacity of the defendant to pay, and without making enquiries as to the defendant's capacity to pay.
In the light of the above authorities I think that, when a magistrate is contemplating imposing a very large fine and has inadequate information as to the offender's means, the magistrate's duties not to impose a fine that is beyond the offender's reasonable capacity to pay and not to sentence upon inadequate materials will, at least sometimes, leave him or her with no practical alternative but to enquire into the offender's means. Whether that is the situation in a particular case will depend on the circumstances, particularly the size of the fine being contemplated.
Counsel for the respondent submitted to me that it was not necessary for the learned magistrate to enquire as to the applicant's ability to pay a large fine because the applicant was represented by a legal practitioner. In fact the learned magistrate interrupted the plea in mitigation to point out that the legislation provided for a maximum fine of $10,000, but the applicant's then counsel still said nothing about his client's means. Evidently the practitioner was inexperienced. The learned magistrate might not have known that, but he certainly had no reason to assume that the practitioner was senior or experienced. One factor suggesting the possibility of the applicant being impecunious was that the record of prior convictions before the learned magistrate showed the applicant had been brought before the court eight months previously because of well over $3,000 in unpaid fines. Minds might differ as to whether the learned magistrate's duties required him to enquire as to the applicant's means in that situation. However, with due respect to the learned magistrate, I have come to the conclusion that he ought to have allowed for the possibility that the practitioner's silence as to his client's means was not a reliable indication of his client's ability to pay a large fine, and that his duties required him to enquire as to the applicant's means.
Counsel for the respondent submitted to me that the fact that the applicant, through his then counsel, sought six months to pay the fine of $2,500 was a strong indication of an ability to pay that fine within that time. If I were persuaded that what the applicant's counsel said in relation to the question of time to pay was a sufficiently reliable indication of an ability to pay the fine within a reasonable time, I would dismiss the motion to review under the Justices Act 1959, s110(2)(ab), despite any error on the part of the learned magistrate in failing to enquire as to the applicant's means. However I think that the application for six months to pay might well be explicable on the basis that the applicant and/or his counsel, in the agony of the moment, dared not asked for any longer. This leads me to the conclusion that ground 3 should succeed, and that I should allow the motion to review.
I will deal briefly with the other grounds. I do not know whether a fine of $2,500 was beyond the applicant's reasonable capacity to pay since I know nothing of his assets and liabilities. Ground 1 must therefore fail. A fine of $2,500 would normally be considered excessive for offences constituted by smoking and sharing a cannabis cigarette. However the applicant had been convicted on drug charges on six previous occasions. The penalties imposed included a community service order in 1993, a fine of $800 in 1998, fines totalling $600 in 2000, and fines totalling $1,900 in 2001. Since it was common ground that the applicant had shared a cannabis joint with friends each Monday for about ten weeks before the offences in question, he was not entitled to any discount on the basis of his offences being isolated ones. A community service order would almost certainly have been inappropriate because of the medical problems detailed in the report I have referred to. In the circumstances, I think a fine of $2,500 would not have been manifestly excessive unless the applicant lacked the reasonable capacity to pay it. Since it has not been established that he lacked the reasonable capacity to pay such a fine, it has not been demonstrated that the fine was manifestly excessive, and ground 2 must also fail.
I do not think it appropriate to re-sentence the applicant myself, since (a) I have inadequate information as to his assets and liabilities, (b) this is a Launceston matter, and I do not expect to be sitting in Launceston until the middle of next year. The only appropriate course is to remit the matter to the Magistrates Court in Launceston. I think it should not be dealt with by the same magistrate.
I order that the motion to review be allowed, the fine of $2,500 quashed, and the matter remitted to the Magistrates Court in Launceston for the re-imposition of penalty by a different magistrate.
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