Rigby v Fuller; Firth v Clarke

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Brownhill J
• Judgment Date: 28 April 2021
• Neutral Citation: [2021] NTSC 38
• Docket Number: FILE NOs: LCA 34 of 2020 (21926270)

[2021] NTSC 38

SUPREME COURT OF THE NORTHERN TERRITORY

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

JUDGMENT OF:

Brownhill J

FILE 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

REPRESENTATION:

Counsel:

Appellant: D Castor

Respondent: A Abayasekara

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.

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.

REASONS FOR DECISION

(Delivered 28 April 2021)

Background

1 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.

2 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.

3 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.

4 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.

5 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.

6 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.

7 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

8 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.

9 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.

10 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....