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Part IB of the Crimes Act 1914 (Cth)

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Last Updated: 8 February 2008

List of subheadings:

Crimes Act 1914
- Definition of 'fine'
- Maximum fines
- Matters to Which a Court Must Have Regard When Imposing a Fine
Scope of 16C
- Financial Circumstances
- Fines and Means
- Fines, Default, Enforcement and Recovery
-----Offenders of Limited Means and Length of Time to Pay
-----Offenders of Limited Means Who Cannot Legally Remain in Australia
-----Determining a Period of Imprisonment for Default

Commentary on Fines under the Crimes Act 1914 (Cth)

A court shall not impose a fine on a federal offender without recording a conviction: Crimes Act 1914 (Cth) s 19B ; Commissioner of Taxation v Doudle [2005] SASC 442, [26].

Note: for sentencing principles as they relate to corporations, including imposing fines, see Corporations.

A court may impose a fine on a federal offender:

• where a fine is specified as a penalty for the offence; or
• under s 20AB(4)(a) as an additional penalty to a sentencing alternative contained in s 20AB(1): (see Additional Sentencing Alternatives); or
• in certain circumstances (see provision below: Crimes Act 1914 (Cth) s 4B) for an offence that is stated to be punishable by imprisonment only, if the contrary intention does not appear.

Note: A penalty unit under s 4AA of the Crimes Act 1914 (Cth) means $110.

For example, where the maximum term of imprisonment for an offence is six months then the maximum pecuniary penalty available would be 30 penalty units. This calculates as follows: 30 x 110 = $3,300. [1]

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Definition of 'Fine'

A fine is defined in s 3(2) of the Crimes Act 1914 (Cth).

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Maximum Fines for Indictable offences dealt with Summarily

Section 4J of the Crimes Act 1914 (Cth) prescribes the maximum fines that may be imposed for certain indictable offences which are dealt with summarily.

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Matters to which a court must have regard when imposing a fine

The non-exhaustive list of matters in s 16A(2) must be taken into account by the court when passing sentence on a federal offender. Primarily, the fine must be of a severity appropriate in all circumstances to the offence: Crimes Act 1914 (Cth) s 16A(1).

In addition, the court must take into account the financial circumstances of the offender before imposing a fine: Crimes Act 1914 (Cth) s 16C(1) (discussed below).

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Scope of s 16C(1)

While courts are required to take an offender's financial circumstances into account when sentencing federal offenders, there is no further direction in the Crimes Act 1914 (Cth) as to how such information is to be taken into account. [2]

Before imposing a fine for a federal offence the court must take into account the financial circumstances of the person: Crimes Act 1914 (Cth) s 16C(1).

However, nothing in sub-s 1 prevents a court from imposing a fine on a person because the financial circumstances of the offender cannot be ascertained by the court: Crimes Act 1914 (Cth) s 16C(2).

The onus is on the offender to inform the court of their capacity to pay a fine. [3] However there may be circumstances in which the sentencing discretion cannot be properly exercised if the court fails to inquire into a particular offender's financial circumstances. [4]

In discussing the meaning of the term 'financial circumstances' in the Sentencing Act 1995 (NT) in the case of Nelson v Meredith, Martin CJ held that:

The words "financial circumstances" go beyond earnings. They include as well, for example, assets, debts, monetary commitment and cost of living including money expended for the maintenance of dependents [sic]. [5]

This is consistent with the interpretation of financial circumstances under the Crimes Act 1914 (Cth). For example, see Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd and Others (No 2) [2006] QSC 40, [17]-[22]; Chief Executive Officer of Customs v Rota Tech Pty Ltd and Ors [1999] SASC 64, [24] - [25].

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Fines and Means

Section 16C(1) itself does not prevent the court from imposing a fine on an offender who cannot pay it.

However, at common law:

the general rule is that a fine should not be imposed without an assessment of the means of the offender to pay it, and should not be imposed where the offender has no means to pay: DJOU v Commonwealth Department of Fisheries [2004] WASCA 282, [31].

A fine must always reflect the gravity of the offence for which it is imposed.

Consideration of the offender's financial circumstances will always be an influential factor for consideration, although should not be decisive.[6] For example, in Labrador Liquor, Jerrard JA held that the offenders could:

hardly expect to get a benefit because of their having arranged their affairs so that they had no property against which execution could be levied... [Pecuniary penalties must be imposed because] any other result would give [the offenders] the advantage of escaping deterrent penalties because they had ensured they could not pay, or be forced to pay, pecuniary penalties. [7]

Similarly, a fine should not be increased solely on the grounds that the offender is unusually affluent. [8]

This common law rule is limited in that where the legislation prescribes a minimum fine the court will be obliged to impose it, even where the offender has no capacity to pay: see Aruli v Christopher Ralph Mitchell [1999] WASCA1042; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2006] QCA 558, [98]

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State or Territory law regarding enforcement or recovery of a fine imposed on an offender applies to a person convicted in a State or Territory of an offence against a law of the Commonwealth: Crimes Act 1914 (Cth) s 15A.

Offenders of Limited Means and Length of Time to Pay

Where the offender is of limited means, consideration must be given to the local law with regards to the enforcement of fines. This is particularly so in jurisdictions in which the court has the power to fix a period of imprisonment in default of payment: see Darter v Diden [2006] SASC 152, [12-15].

Where imprisonment is not an available sentencing option for a particular offence, but will be imposed in default of payment of a fine, the court must exercise its sentencing discretion carefully in setting the amount of the fine. Special attention must be given where the fine imposed is beyond the offender's known capacity to pay.

Where State or Territory law provides, allowing an offender to pay the fine by installment over a lengthy time may avoid a period of default imprisonment. [9] For example, in Trade Practices Commission v Farrow the court discussed the policy arguments surrounding the sentencing of an offender of limited means:

[t]here must be a balancing between the needs for general and particular deterrence, and for retribution which the community and the victims may reasonably expect the law to exact on the one hand, and the circumstances of the offender on the other hand. Where the means and ability of a defendant to pay are limited, the court should explore the position very carefully before departing from the penalty that is otherwise indicated by the circumstances of the offence... Often the limited circumstances of a defendant can be accommodated by allowing a lengthy time to pay a fine. [10]

Note: Allowing an offender to pay a fine by instalment over a period of time will only be a valid option where allowed under the law of the State or Territory in so far as they are applicable. [11] Courts are reluctant to allow too great a time period for repayment. [12]

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Offenders of Limited Means and Default Imprisonment

The use of imprisonment as a means of punishing offenders who default on the payment of fines may be restricted. [13]

Where imprisonment is not an available sentencing option either because the offence was not of such a gravity to warrant it, or because the penalty provision did not specify a period of imprisonment, the courts are reluctant to impose a term of imprisonment for default of payment. For example in Trade Practices Commission v J & R Enterprises Pty Ltd O'Loughlin J stated:

[i]t is clear that the legislature did not intend to punish for a breach of these provisions of the Act by way of imprisonment; hence, it seems to me that every effort must be made to avoid doing indirectly that which cannot be done directly. Imprisonment for failure to pay a fine should be reserved, if that is possible, for the offender who refuses, or fails for no just cause, to pay the fine. To impose a fine of an amount that the offender could never pay is tantamount to imposing a term of imprisonment - and that offends the spirit of the legislation. Needless to say, a sentencing Court must make careful investigations before extending this leniency to an offender. (emphasis added) [14]

Any period of imprisonment for default of a federal fine should be served concurrently with other periods of federal or state imprisonment unless the court otherwise decides: see Crimes Act 1914 (Cth) s 15A(3)-(4).

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Offenders of Limited Means Who Cannot Legally Remain in Australia

In cases in which the offender cannot legally remain in Australia, most often in offences against Commonwealth fisheries legislation, there is often little alternative to the imposition of a fine with an immediate default imprisonment period for failure to pay. In La Ode Arifin Pidgeon J stated (Franklyn and Walsh JJ agreeing):

where the only option open is a fine and where the option such as a bond is otherwise excluded by the facts of the case, then the fine must reflect the gravity of the offence and must be imposed even though it is known that the defendant will serve a default term by reason of his not being permitted to be in the jurisdiction in order to pay the fine by other means. (emphasis added) [15]

See also R v Zainudin and Ho [2005] NTSC 14, [20] (Mildren J); DJOU v Commonwealth Department of Fisheries [2004 ] WASCA 282, [48].

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Determining a Period of Imprisonment for Default

Where a fine is imposed in the knowledge that the offender will serve a period of imprisonment for default of payment, the default period of imprisonment must be just in all the circumstances of the case. [16] In Bahloni & Kalungan v Munn (2001) NTSC 101 Bailey J stated:

where an offender has no capacity to pay and the imposition of anything other than a nominal fine will necessarily result in the offender serving a term of imprisonment by way of default, the setting of an appropriate fine and the default period cannot be exercises carried out in isolation... In terms of the administration of the criminal justice system, it is the combined fine and default period which needs to be assessed as just in all the circumstances rather than the component parts of the sentence. [17]

See also La Ode Arifin (Unreported, Full Court of the Supreme Court of Western Australia, Pidgeon, Franklyn and Walsh JJ, 18 June 1991).

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Footnotes

[1] Judicial Information Research System, Judicial Commission of NSW.

[2] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [7.7].

[3] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), 377.

[4] Reeves v Ranson [1999] TASSC 52, [21] (Crawford J).

[5] Nelson v Meredith [2001] NTSC 4, [5] (Martin CJ).

[6] Darter v Diden [2006] SASC 152, [35]. See also: Griggs v Australian Securities Commission [1996] SASC 5446, [15]-[16]; Fry v Bassett (1986) 44 SASR 90, [92]; Rahme (1989) 43 A Crim R 81, [86]; Flego v Lanham (1983) 32 SASR 361; CEO of Customs v Rota Tech Pty Ltd [1999] SASC 64, [35] (Mullighan J).

[7] Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2006] QCA 558, [101] - [102].

[8] For discussion of this principle see K Warner, Sentencing in Tasmania (2nd ed, 2002), 128; R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), 374.

[9] Crimes Act 1914 (Cth) s 15A.

[10] Trade Practices Commission v Farrow & Anor (1990) 95 ALR 53.

[11] Crimes Act 1914 (Cth) s 15A.

[12] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), 386.

[13] See for example s 19B(2A)- a person is not to be imprisoned for a failure to pay an amount required to be paid under an order made under s 19B.

[14] Trade Practices Commission v J & R Enterprises Pty Ltd [1991] FCA 325, [18].

[15] La Ode Arifin (Unreported, Full Court of the Supreme Court of Western Australia, Pidgeon, Franklyn and Walsh JJ, 18 June 1991).

[16] for a discussion of this point, see Fakie v Shelverton [2000] WASCA 177, [11]; DJOU v Commonwealth Department of Fisheries [2004 ] WASCA 282, [21] - [24].

[17] Bahloni & Kalungan v Munn (2001) NTSC 101, [28] (Bailey J).