Walker v Meredith [2008] NTSC 23

PARTIES:	WALKER, WARREN

	v

	MEREDITH, ANDREW

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:	JA 7 OF 2008 (20404995)

DELIVERED:	21 May 2008

HEARING DATES:	19 May 2008

JUDGMENT OF:	MILDREN J

APPEAL FROM:	COURT OF SUMMARY JURISDICTION

CATCHWORDS:

Crimes (Victims Assistance) Act (repealed), s 25B(2), s 25B(3)(a), s 25B(7)
Fines and Penalties Recovery Act, s 3(1), s 3(2), s 61, s 77, s 86, s 109(1)
Sentencing Act, s 3(1), s 26(2), s 61
Victims of Crime Assistance Act, s 61

CRIMINAL LAW AND PROCEDURE – whether default period of imprisonment can be imposed by a court on victim impact levies or an amount forfeited under a recognisance – whether “fines” – Sentencing Act s 3(1) and s 26(2) – appellant serving lengthy sentence of imprisonment – appeal allowed in part

REPRESENTATION:

Counsel:
	Appellant:	C McAlister
	Respondent:	S Geary

Solicitors:
	Appellant:	North Australia Aboriginal Justice Agency
	Respondent:	Office of the Director of Public Prosecutions

Judgment category classification:	B
Judgment ID Number:	mil08422
Number of pages:	6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Walker v Meredith [2008] NTSC 23
No. JA 7 of 2008 (20404995)

	BETWEEN:

	WARREN WALKER
	Appellant

	AND:

	ANDREW MEREDITH
	Respondent

CORAM:	MILDREN J

REASONS FOR JUDGMENT

(Delivered 21 May 2008)

[1]	On 28 September 2004 the appellant was convicted of two offences by the Court of Summary Jurisdiction. The Court ordered that the appellant be released on his giving security in the sum of $1,000 and to be of good behaviour for a period of two years.
[2]	Subsequently the appellant was convicted in relation to another matter during the operational period of the bond and on 2 November 2005 the breach was proved and the Court of Summary Jurisdiction made an order under s 15(4) of the Sentencing Act revoking the bond, convicting the appellant without further penalty and ordering forfeiture of the recognizance  of $1,000.
[3]	As of 9 January 2008 the appellant was liable to pay in addition to the $1,000 forfeiture of the recognizance $330 for fines and levies in relation to two counts imposed in respect of file 20523498. It is common ground that the levies were imposed under the Crimes (Victims Assistance) Act (since repealed) which was in force at the relevant time.
[4]	An application was made in the Court of Summary Jurisdiction under s 26(2) of the Sentencing Act by the appellant that he be imprisoned in default of payment of the fines.
[5]	The learned Magistrate ruled that he could not commit the appellant to prison for the full amount of $1,330, but he made an order committing the appellant to prison for three days in respect of the two fines outstanding on file 20523498. The appellant has appealed to this Court from the decision of the Magistrate not to make an order under s 26(2) of the Sentencing Act in relation to the levies and the forfeiture of the recognizance.
[6]	After hearing submissions I made an order allowing the appeal in part and ordering that the appellant pay the sum of $80 being the victim impact levy imposed in respect of file 20523498 on 29 September 2005 and I further ordered that if that sum was not paid within 28 days a warrant of commitment was to be issued for one day’s imprisonment to be served concurrently with a sentence imposed by Olsson AJ on 6 November 2007, but that the appeal was otherwise dismissed. I said that I would publish my reasons at a later time. I now do so.
[7]	So far as the levies are concerned, I note that the learned Magistrate was told incorrectly that the levies were imposed pursuant to the provisions of the Victims of Crime Assistance Act which came into force on 1 May 2007. However, it is clear that the levies were imposed under the former Crimes (Victims Assistance) Act (the former Act) which was in force in 2005. Under the former Act it is clear that the levies were not imposed by any order of the Court, but that they were imposed by s 25B(2) and s 25B(3)(a).
[8]	Section 25B(7) of the former Act required that the amount of the levy was to be shown in any formal record of the conviction and sentence and in any notice of the conviction or sentence given to the defendant and it further provided by sub-paragraph (b) that the levy shall “for all purposes, be deemed to be a fine or sum of money or to form part of the fine or sum of money adjudged to be  paid by the Court in respect of the offence to which the levy relates”.
[9]	The Sentencing Act by s 3(1) defines “fine” to mean “the sum 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”. In view of the fact of the levy is deemed to be for all purposes part of the fine by virtue of the provisions of the former Act it is clear that the Court did have jurisdiction to make an order in respect of the levy under s 26(2) of the Sentencing Act.
[10]	I note that quite different considerations might apply to levies imposed under s 61 of the Victims of Crime Assistance Act as there does not appear to be any provision in that Act deeming the levy to be part of the fine.
[11]	However, the power to make an order under s 26(2) is subject to a discretion. The recovery and enforcement of the fines and other penalties of a pecuniary nature including monies due for breaches of recognizances is now dealt with by the Fines and Penalties Recovery Act (the FPR Act) which came into force on 1 January 2002. By s 3(1) of that Act, the Act applies to monies payable to the Territory arising out of Court proceedings (including forfeited bail and recognizances).
[12]	Section 3(2) of the FPR Act provides:
“A court may order that this Act does not apply in circumstances provided for in the Sentencing Act, Justices Act or Youth Justice Act (as appropriate).”
[13]	The general scheme of the FPR Act in so far as the recovery of fines and monies due for breach of recognizances are concerned is to provide a mechanism for the recovery of the fines by various means, falling short of imprisonment. The means include under Division 7 the suspension of the defaulter’s drivers licence, the suspension of the registration of a motor vehicle of which the fine defaulter is the registered owner or one of the registered owners (s 61) and by civil enforcement under Division 8 of Part 5 of the Act. If none of those methods are successful then the Fines Recovery Unit may make a community work order under s 77 of the Act and it is only if a community work order is revoked under Division 9 that the Fines Recovery Unit may, by warrant, commit the fine defaulter to prison in default of payment of the fine (see s 86). So far as forfeited recognizances are concerned, they are recovered as if the amount payable were a fine: see s 109(1).
[14]	In the light of the detailed provisions contained in the FPR Act and the scheme of the Act as a whole, which is clearly designed to ensure as far as possible that any actual monetary fine is actually paid, and that imprisonment is clearly to be used as a last resort, the Court should be reluctant to make an order under s 26(2) of the Sentencing Act 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.
[15]	In this case the appellant is serving a lengthy term of imprisonment, the amounts outstanding are very small and if an order is made under s 26(2) of the Sentencing Act the sentence will be served concurrently with any incomplete sentence or sentences of imprisonment imposed on the defendant, whether the other sentence was or the other sentences were imposed before or at the same time as that term unless the Court otherwise directs: see s 61 of the Sentencing Act.
[16]	In this case I considered that it was appropriate to make an order in relation to the levies as the amounts were small, the period of default was only one day’s imprisonment, the appellant was serving a lengthy term with little immediate prospect of being able to either pay the fine or work the fine off by the performance of community service, and the fact that the application was made by the appellant and supported by counsel for the respondent. Accordingly an order was made under s 26(2) in the exercise of my discretion in relation to the levies.
[17]	However, the matter of the $1,000 forfeited for the breach of the recognizance is not in my opinion a fine as defined by s 3 of the Sentencing Act. When the Court found the breach proved and ordered the recognizance to be forfeited that was not an order made by the Court on the appellant being convicted or found guilty of an offence, but rather it was an order made by the Court upon the Court being satisfied that the offender had breached the recognizance. Therefore, in my view, the learned Magistrate was correct and the Court did not have jurisdiction to make an order under s 26(2) in relation to the $1,000 ordered to be forfeited.
------------------------------