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Fines

The content on this page was last reviewed on 03 February 2015.

Recent cases alert

Pullman v Australian Taxation Office [2017] SASC 44 — sentencing judge did not take into account offender’s financial circumstances under s 16C as offender’s circumstances are exceptional as offender did not wilfully defraud the Commonwealth and fine imposed represented double the offender’s annual income over past 10 years.
Nguyen v Ciolka [2015] NTSC 67 — magistrate failed to enquire into financial circumstances of the appellant and his capacity to pay.
*Guidance from these cases has not yet been incorporated into the commentary

1.  Overview

A fine is defined very broadly in s 3(2) of the Crimes Act 1914 (Cth) as encompassing a pecuniary penalty (with noted exceptions, see below) and ‘costs or other amounts ordered to be paid by offenders.’ 1

Section 3(2)

In this Act, a reference to a fine includes a reference:

(a)  to a pecuniary penalty other than a pecuniary penalty imposed:
(i)  under Division 3 of Part XIII of the Customs Act 1901; or
(ii)  by a pecuniary penalty order, a literary proceeds order or an unexplained wealth order made under the Proceeds of Crime Act 2002 ; or
(iia)  by a pecuniary penalty order made under the Proceeds of Crime Act 1987 ; or
(iii)  by a superannuation order made under the Australian Federal Police Act 1979 ; or
(iv)  by a superannuation order made under the Crimes (Superannuation Benefits) Act 1989 ; or
(b)  to costs or other amounts ordered to be paid by offenders.

In sentencing a federal offender a court must not impose a pecuniary penalty fine without recording a convictionCrimes Act 1914 (Cth) s 19B. See further Commissioner of Taxation v Doudle [2005] SASC 442, [26].

Section 19B only permits the imposition of a non-conviction bond with a condition of payment of reparation, restitution, compensation or to pay costs: Crimes Act 1914 (Cth) s 19B(1)(d).

Note: for sentencing principles as they relate to corporations, including imposing fines, see Corporations. For principles relating to aggregate fines, see Multiple or Continuing Offences and Totality Principle: Non-Custodial Sentences.

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2. When may a court impose a fine

A court may impose a pecuniary penalty fine on a federal offender:

Section  4B

(2) Where a natural person is convicted of an offence against a law of the Commonwealth punishable by imprisonment only, the court may, if the contrary intention does not appear and the court thinks it appropriate in all the circumstances of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty not exceeding the number of penalty units calculated using the formula:

Term of Imprisonment x 5

where:

Term of Imprisonment” is the maximum term of imprisonment, expressed in months, by which the offence is punishable.

(2A) Where a natural person is convicted of an offence against a law of the Commonwealth in respect of which a court may impose a penalty of imprisonment for life, the court may, if the contrary intention does not appear and the court thinks it appropriate in all the circumstances of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty not exceeding 2,000 penalty units.

Note: A penalty unit under s 4AA of the Crimes Act 1914 (Cth) means $180.

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 180 = $5, 400.

2.1 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.

Section 4JA prescribes the maximum fines that may be imposed for certain indictable offences which are punishable by fine only and are dealt with summarily.

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3. 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 of the offence: Crimes Act 1914 (Cth) s 16A(1).

A fine may be ordered as a condition under ss 20(1) or 20AB(1).Section 16A(3) provides that in determining whether a sentence or order under those sub-sections is appropriate, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender under that sentence or order.

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: 4. Financial circumstances of the offender).

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4. Financial circumstances of the offender

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).

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. 3

The onus is on the offender to inform the court of their capacity to pay a fine. 4 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. 5

4.1 The meaning of ‘financial circumstances’ in s 16C

In discussing the meaning of the term ‘financial circumstances’ in the Sentencing Act 1995 (NT) in the case of Nelson v Meredith [2001] NTSC 4, [5] 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].

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].

4.2 Fines and means

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

Section 16C(1) itself does not prevent the court from imposing a fine on an offender who cannot pay it. In Darter v Diden [2006] SASC 152 Doyle CJ explained the operation of s 16C at [30]:

… the defendant’s capacity to pay was a relevant consideration, but not decisive. There is nothing in the Crimes Act to suggest that it is a decisive factor. Nor, in my opinion, does ordinary sentencing principle require that it be so treated. The impact of s 16C of the Crimes Act was considered by Mullighan J in Chief Executive Officer of Customs v Rota Tech Pty Ltd & Ors [1999] SASC 64; (1999) 201 LSJS 390. He considered a number of the reported cases and (at 397) said:

“It follows that the capacity of the offender to pay cannot be the dominant factor when fixing the fine to be imposed. It is an important factor along with the other matters which the Court must take into account pursuant to s 16A…” 7

The Court in Chief Executive Officer of Customs v Kaufusi [2012] NSWSC 200 commented on the operation of s 16C at [7]:

… the financial circumstances of the person does [sic] not dictate what fine is imposed. The obligation in s 16C is to consider whether the person can actually afford to pay the fine. In some circumstances, the criminality is so serious that not to impose an extensive fine would undermine the need for general deterrence (Smith v The Queen (1991) 25 NSWLR 1 at 23 – 24; Environmental Protection Agency v Ableway Waste Management Pty Ltd [2005] NSWLEC 469; CEO Customs v Labrador Liquor Wholesale Pty Ltd [2006] QCA 558 at [95] – [98]).

However, where both imprisonment and a fine are available as sentencing options, it will not usually be appropriate to impose a fine on a defendant who lacks the capacity to pay: Darter v Diden [2006] SASC 152, [33]-[35]. It is a ‘patent contradiction in terms’ 8 to decide that a sentence of imprisonment is inappropriate, but impose a fine which will inevitably result in a period of default imprisonment. In such a case, imprisonment is likely to be the appropriate sentence, as the period of imprisonment should be determined directly, not by reference to the default rate applicable on failure to pay the fine:  Darter v Diden [2006] SASC 152, [34] (see below: 5. Default, enforcement and recovery).

Where imprisonment is not an available sentencing option, a fine and an immediate default period of imprisonment is not to be imposed on the basis the offence merits imprisonment and the default period represents what would be an appropriate term of imprisonment for the offence: DJOU v Commonwealth Department of Fisheries [2004] WASCA 282, [48] (Roberts-Smith J). 9

4.2.1 Mandatory minimum fines

Where the legislation prescribes a minimum fine the court will be obliged to impose it, even where the offender has no capacity to pay:  Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2006] QCA 558, [98]; Chief Executive Officer of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33, [64]-[69].

Section 120 of the Excise Act 1901 (Cth) prescribes a mandatory minimum fine for certain excise offences.

Section 234 of the Customs Act 1901 (Cth) prescribes a mandatory minimum fine for certain customs offences.

4.2.2 Court may consider why an offender is of limited means

A court may look into why an offender is of limited means. For example, in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2006] QCA 558, Jerrard JA held at [101]-[102] 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.

Leading commentators have noted that a fine should not be increased solely on the grounds that the offender is affluent. 10

4.3 Financial circumstances and costs

A ‘fine’ is defined in s 3(2)(b) of the Crimes Act 1914 (Cth) to include ‘costs or other amounts ordered to be paid by offenders’. It is unclear whether s 16C applies to orders to pay costs to the prosecution.

In Smolarek v Roper [2009] WASCA 124 the Court considered an application for costs in relation to the dismissal of two appeals. 11 The appellant argued, relying on ss 16C and 3(2), that as she was impecunious, no order for costs should be made against her. Wheeler, Pullin and Newnes JJA held that the appellant’s reliance on s 16C was misconceived, stating at [10]-[12]:

Section 16C is contained in pt 1B of the Crimes Act, dealing with ‘[s]entencing, imprisonment and release of federal offenders’ and, in particular, in div 2 of that part, dealing with ‘[g]eneral sentencing principles’. In our view, it is clear that s 16C is concerned with (relevantly) costs imposed in the sentencing process in relation to the offence; it is not concerned with the costs of an appeal of the present nature. 12

In Chief Executive Officer of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33 the Court considered the issue of costs in relation to proceedings against one of the offenders, where all charges were proved against him.  The Court discussed s 16C in relation to the pecuniary penalties ordered, 13 however in relation to costs, stated at [77]:

 The plaintiff seeks costs against Dory Karam. In accordance with the principles stated above, 14 I do not think it would be a proper exercise of my discretion to refuse to make that order. It is no part of that discretion to consider Dory Karam’s capacity to pay such costs. They are compensatory in nature.

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5. Default, enforcement and recovery

5.1 Application of state and territory enforcement and recovery laws  

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.

Section 15A

(1)  A law of a State or Territory relating to the enforcement or recovery of a fine imposed on an offender applies to a person convicted in the State or Territory of an offence against a law of the Commonwealth. The law applies:
(a)  so far as it is not inconsistent with a law of the Commonwealth; and
(b)  with the modifications (if any) made by or under this section.

5.1.1 State enforcement bodies cannot exercise federal judicial power

In some states and territories, fines are enforced by a non-judicial, administrative body, such as a state debt recovery office, while in other states and territories, fines are enforced by the courts. However, it is not possible for state or territory administrative bodies to impose judicial penalties for fine default on federal offenders 15 (see below: 5.1.4 Amendments to section 15A).

If a law of a state or territory requires or permits a person or authority other than a court to take action to impose judicial penalties for failure to pay a fine, the law applies under s 15A(1) as if it did not require or permit the person or authority to take that action, but instead, did all of the following:

  • allowed any person to apply to a court of summary jurisdiction of the State or Territory for an order imposing the penalty; and
  • allowed the court to make the order; and
  • provided for the order to have the same effect that the taking of the action by the person or authority has under the law without the modifications made by or under this subsection; and
  • were subject to any prescribed modifications consequential on the other modifications described in this subsection, or facilitating the operation of the law with those modifications: s 15A(1AA).

The penalties to which s 15A(1AA) apply are:

  • community service by a person who failed to pay a fine;
  • detention or imprisonment of a person who failed to pay a fine;
  • a penalty that is similar to community service, detention or imprisonment; or
  • a penalty prescribed by the regulations: s 15A(1AB).

5.1.2 Section 15A may result in inconsistency in treatment of federal offenders between jurisdictions

The provisions enabling imprisonment in default of payment of fines vary widely between jurisdictions. 16 For example, in some jurisdictions, the sentencing Judge is empowered to set a period of imprisonment in the event of default, 17 while in other jurisdictions, fines are enforced by administrative bodies. 18 In addition, states and territories may have varying statutory formulae for the calculation of the period of imprisonment to be served in the event of fine default, 19 or may give a discretion to the sentencing judge as to the period to be served. 20

Section 15A is an example of the acceptance of jurisdictional differences as a matter of federal legislative policy.  Therefore s 15A applies even if the provisions vary widely between jurisdictions and may result in a lengthy period of imprisonment in excess of what could be imposed in another jurisdiction. 21

A sentencing judge is not required to compensate for differences in state legislation to achieve national uniformity when applying s 15A: Bryce v Chief Executive Officer of Customs (No 2) [2010] QSC 125, [86]-[87] (Fryberg J).

5.1.3 Interaction between state and territory law and Commonwealth law

State and territory laws with regard to enforcement apply under s 15A where they are not inconsistent with the laws of the Commonwealth: s 15(1)(a).

For example, s 20(2A) states that a person is not to be imprisoned for a failure to pay an amount by way of reparation, restitution or compensation or an amount in respect of costs required to be paid by an order made under s 20(1).

Other federal laws may also restrict the imprisonment of fine defaulters. For example,  s 571of the Fair Work Act 2009 (Cth)  prohibits a court from imprisoning a person in default of payment of a pecuniary penalty imposed under that Act. 22

A federal law may specify the rate at which a term of default imprisonment is imposed under a law of a state or territory through s 15A. For example, s 79A of the Competition and Consumer Act 2010 (Cth) provides that the term of default imprisonment imposed in respect of certain offences 23 under that Act is to be calculated at the rate of one day’s imprisonment for each $25 of the amount of the fine that is unpaid.

5.1.4 Amendments to section 15A

On 5 April 2012, amendments to the Crimes Act 1914 (Cth)contained in Schedule 8 of the Crimes Legislation Amendment (Powers and Offences) Act 2012 (Cth) came into force. The amendments to ss 15A(1AA) and (1AB) empower state and territory fine enforcement agencies to enforce Commonwealth fines through non-judicial enforcement actions without obtaining a court order. Such enforcement actions may include garnishment of a debt, wage or salary; a charge or caveat on property; seizure or forfeiture of property; and voluntary community service orders. 24

However, state and territory fine enforcement agencies are still required to apply to a court of summary jurisdiction for an order imposing a judicial penalty 25 (such as compulsory community service, detention or imprisonment) on a person who has failed to pay a Commonwealth fine: ss 15A(1AA)-(1AB).

The 2012 amendments also inserted a new s 15A(1ACB) which states that where a court makes an order imposing a penalty for failure to pay a fine, whether or not the penalty is judicial or non-judicial, the fine enforcement agency is not required to make an application to a court to take enforcement action, even if the penalty is imposed as an alternative penalty. The explanatory memorandum states that this amendment makes it ‘clear that State and Territory fine enforcement agencies are not required to go back to a court before proceeding to enforce a self-executing court order’. 26

The amendments confer retrospective authority on persons who previously enforced Commonwealth fines through non-judicial enforcement actions without a court order. 27

5.2 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 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. 28

For example, in Trade Practices Commission v Farrow [1990] FCA 74 the Court discussed the policy arguments surrounding the sentencing of an offender of limited means at [46]:

There 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.

However where there is evidence that the offender has no capacity to pay, a court may decline to allow time to pay. For example, in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Others (No 2) [2006] QSC 40, Fryberg J stated at [58]:

The second and third defendants asked that if (contrary to their submissions) I imposed a period of default imprisonment, they be given 12 months to pay the penalties. The only basis for this request was that otherwise, they would be liable to imprisonment immediately, whereas with time to pay there might be a chance of their paying at least some of the penalties. They did not suggest that this was their intention, and on the evidence (absent winning Lotto or the miraculous reappearance of the proceeds of sale of the goods upon which duty was evaded) they have no capacity to make any significant payment. I see no point in allowing such a period. In any event I doubt if, in the absence of time being allowed, they would be arrested immediately. Assuming the provisions of the State Penalties and Enforcement Act 1999 apply, they will probably take a while to implement. 29

Note: Allowing an offender to pay a fine by installment 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. 30 Courts are reluctant to allow too great a time period for repayment. 31

5.3 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: see above 5.1.3 Interaction between state and territory law and Commonwealth law.

Immediate imprisonment in default of payment may be ordered even though it is known that the offender will serve a default term by reason of their inability to pay. 32

Where it is known that the imposition of any fine will necessarily result in an offender serving imprisonment, the Court must bear in mind the period which will be served by way of default, to ‘ensure that the penalty fits the offending conduct’. 33

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 [1991] FCA 325 O’Loughlin J stated at [18]:

It 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). 34

However, in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Others (No 2) [2006] QSC 40, Fryberg J distinguished J & R Enterprises and like cases involving the Trade Practices Act 1974 (Cth) 35 from cases involving the Customs Act 1901 (Cth) and the Excise Act 1901 (Cth).  36

Fryberg J stated at [52]:

Whatever may be the position under the Trade Practices Act 1974, I do not think this approach is applicable to the Customs Act 1901 or the Excise Act 1901. It is no doubt correct that the primary punishment which may be imposed for an offence under s 234 of the Customs Act is a pecuniary penalty; there is no power to order imprisonment directly for an offence under that section. However the Act contemplates that an offence may be indirectly “punishable” by imprisonment. It includes provisions which permit the imposition of extremely high monetary penalties and in some cases (such as the present) mandate them. It will frequently be the case where such penalties are imposed that the offenders are incapable of paying them…

In my judgment both punishment and enforcement are purposes for which imprisonment in default of payment of a pecuniary penalty may be ordered (footnotes omitted). 37

In Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2006] QCA 558 Jerrard JA considered an appeal against the sentence imposed by Fryberg J, and found at [101]-[102]:

… the penalties ordered were properly imposed, and the immediate imprisonment in default of payment was ordered because of the inability of either Mr Wright or Mr Bryce to pay any of those properly imposed fines…

General and specific deterrence is relevant both when ordering pecuniary penalties and fixing the amount of those, and also when ordering default periods of imprisonment if those penalties are not paid, and in fixing the amount of those default terms.

Their argument was that it was wrong in principle to have regard to general deterrence when fixing periods of imprisonment in default, but I respectfully disagree.  Any other result would give Mr Bryce and Mr Wright the advantage of escaping deterrent penalties because they had ensured they could not pay, or be forced to pay, pecuniary penalties. 38

5.3.1 Setting an appropriate fine where the default period is fixed

When a fine is imposed in jurisdictions where:

  • the period of default imprisonment is calculated using a fixed statutory ratio, and
  • it is known that the offender has no capacity to pay and will serve a term of default imprisonment,

the sentencing judge should consider the default period which the offender will be liable to serve when setting the amount of the fine.  39

For example, in DJOU v Commonwealth Department of Fisheries [2004] WASCA 282, Roberts Smith J cited with approval the comments of Heenan J in  Fakie v Shelverton [2000] WASCA 177, [11]  in concluding that both the fines and the default periods were manifestly excessive with reference to the fixed statutory ratio for determining a default period which applied under the Fines, Penalties And Infringement Notices Enforcement Act 1994 (WA).

Roberts-Smith J stated at [70]:

… Heenan J had to grapple with the problem of setting both an appropriate fine and an appropriate period of imprisonment in default of payment. His Honour said (at [11] – [12]):

[11] Deciding upon the amount of the fines has its difficulties. Because the appellants have no capacity to pay, the imposition of any fine necessarily results in each serving imprisonment by way of default. It follows that, in order to ensure that the penalty fits the offending conduct, the Court must bear in mind the period which will be served by way of default…

See also Australian Competition and Consumer Commission v Hartwich [2002] FCA 273, [46] where Spender J considered the impact of a fixed statutory ratio of one day of imprisonment per $25 of the fine when determining the amount of the fine to be imposed.

5.3.2 Setting a period of default imprisonment where the court retains a discretion as to the default period.

When a fine is imposed in jurisdictions where the court retains some discretion as to the period of default imprisonment to be imposed, the default period of imprisonment must be just in all the circumstances of the case. 40

For example, in Chief Executive Officer of Customs v. Labrador Liquor Wholesale Pty Ltd & Others (No 2) [2006] QSC 40 default imprisonment was ordered under s 182A of the Penalties and Sentences Act 1992 (Qld), which gives the sentencing judge a discretion as to the term of default imprisonment to be ordered, up to a maximum of  14 days imprisonment for each penalty unit. Fryberg J adopted the following approach to determining the period for default imprisonment at [54]:

The next question is: how much imprisonment should be ordered for each offence? There can be no question of imposing anything like the maximum permitted by s 182A(2)(ii) in respect of any offence; it would not be possible to formulate an order doing so which would satisfy the justice of the case. The lowest penalty is that for the evasion of excise duty in respect of the first Fiji shipment, $16,172.50. That equates to 216 penalty units, so the maximum term of imprisonment would exceed 8 years for the lowest of the 15 penalties. The only fair approach is to assess the appropriate total period of default in the event that no part of any of the penalties is paid and apportion it among all of the offences. That might well be regarded as undertaking a process akin to the application of the totality principle. It might also be possible to formulate an order which provided for the imprisonment to be in part concurrent, but such an order would be complex and prone to unforeseen consequences in implementation (footnotes omitted; emphasis added). 41

5.3.3 Concurrent and cumulative sentences of default imprisonment

Any period of imprisonment for default of a federal fine should commence from the earliest practicable day, despite the fact that the person may already be serving another state, territory or federal sentence of imprisonment: s 15A(3).

However a court may direct that the period of default imprisonment commence during, or at the end of a period of imprisonment imposed for fine default in respect of another federal offence. The court may do so where it is of the opinion that in all the circumstances of the case, a concurrent or partly concurrent default period is more appropriate: s 15A(4).

5.3.4 Default imprisonment and non-parole period

Where a default period of imprisonment is set for an offender, a court may be required to set a non-parole period by operation of s 19AB of the Crimes Act 1914.  In Bryce v Chief Executive Officer of Customs [2009] QSC 298 it was held that s 19AB applied where the offender was liable to serve a default imprisonment period of greater than three years. Applegarth J noted at [29]-[31]:

Section 19AB(1)(b) applies if the court “imposes” certain federal sentences. As the Chief Justice observed in this matter “the imposition of any imprisonment here has been done only contingently upon non payment”. The issue for my determination is whether, despite this contingency, federal sentences that in the aggregate exceeded three years were imposed so as to engage s 19AB(1)(b).

In the circumstances of this case, the condition of non payment was certain to eventuate. The order was for the applicant to be imprisoned for the specified periods if he failed to pay penalties that totalled in excess of $5,000,000 “immediately”. The evidence was that the applicant had no ability to pay immediately, and this was the basis upon which he sought time to pay. In those circumstances I consider that federal sentences that in the aggregate exceeded three years were imposed. It is unnecessary to consider the position that might obtain in other circumstances, for example, where time is given to pay. In such a case the contingency of non payment may not eventuate. In this case, where it was certain that the applicant would fail to immediately pay $5,000,000, the orders had the practical effect of imposing federal sentences of imprisonment that exceeded three years, and s 19AB(1)(b) was engaged.

Section 19AB of the Crimes Act applied in respect of the sentencing of the applicant. There has been a failure to fix a non-parole period. 42

5.3.5 Offenders of limited means who cannot legally remain in Australia

In cases in which the offender cannot legally remain in Australia, often involving 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 Arifin v Ostle 43 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).

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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Notes:

  1.  Crimes Act 1914 (Cth) s 3(2)(b). 
  2. Where the offence is punishable by a fine, the maximum pecuniary penalty to be paid to the Commonwealth which can be ordered under s 20(1)(a)(iii) is no more than the amount of the maximum fine for the offence. Where the offence is not punishable by a fine, the maximum pecuniary penalty to be paid to the Commonwealth that can be imposed under s 20(1)(a)(iii) is 60 penalty units in court of summary jurisdiction or 300 penalty units in all other courts (ie Supreme Court or County Court): s 20(5). See further Conditional Release Bonds after Conviction. 
  3.  Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [7.7]. 
  4.  R v Cheshire 76 A Crim R 261, 270. See also Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014), 473.  
  5.  Reeves v Ranson [1999] TASSC 52, [21] (Crawford J); Venn v White [2003] TASSC 115, [4]-[11] (Blow J).
  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]; Kyle v Rigby [2007] NTSC 57, [21]-[22] (Olsson J); 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.  Doyle CJ’s comments were cited with approval in Jahandideh v The Queen [2014] NSWCCA 178, [16] (Rothman J, Hoeban CJ at CL and Beech-Jones J agreeing).
  8.  Fry v Bassett (1986) 44 SASR 90, 92 (Olsson J).
  9.  Cited with approval in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2006] QCA 558, [101] (Jerrard JA).
  10.  For discussion of this principle see K Warner, Sentencing in Tasmania (2nd ed, 2002), 128; Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014), 476. But see ACCC v Excite Mobile Pty Ltd (No 2) [2013] FCA 1267, [128] (Mansfield J); Jahandideh v R [2014] NSWCCA 178, [17] (Rothman J, Hoeban CJ at CL and Beech-Jones J agreeing).
  11.  The first appeal was against a decision dismissing an application by the appellant for an order under s 36 of the Magistrates Court Act 2004 (WA) to set aside her conviction for an offence under the Corporations Act 2001 (Cth) on the ground that the Magistrates Court had no jurisdiction. The second appeal was against a decision dismissing the appellant’s application for leave to appeal against her conviction.  
  12.  Section 19B (discharge of offenders without proceeding  to conviction) and s 20 (conditional release of offenders after conviction) enable a court to impose as a condition that the offender will pay costs in respect of his or her prosecution for the offence or offences concerned where the court is empowered to require a person to pay such costs: ss 19B(1)(d)(ii),20(1)(a)(ii). 
  13.  See Chief Executive Officer of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33, [69]-[72] (McCallum J).
  14.  McCallum J had noted at [55] that ‘in accordance with s 247 of the Customs Act, which provides for the prosecution of Customs offences “in accordance with the usual practice and procedure of the court in civil cases”, the issue of costs should be determined in according with s 98 of the Civil Procedure Act 2005 and part 42 of the Uniform Civil Procedure Rules 2005.’ 
  15.  Ch III of the Australian Constitution requires federal judicial power to be exercised only by a court.
  16.  See Samide v Munn [2004] NTSC 4, [19]-[26] (Riley J); DJOU v Commonwealth Department of Fisheries [2004] WASCA 282, [61]-[68] (Roberts-Smith J).
  17.  See, eg, Penalties and Sentences Act 1992 (Qld) s 182A. 
  18.  See, eg, Fines Act 1996 (NSW) ss 87;11314. 
  19.  See, eg, Sentencing Act 1995 (WA) s 59 and Sentencing Regulations 1996 (WA) reg 6BA; Fines Act 1996 (NSW) s 90 and Fines and Penalties (Recovery) Act 2001 (NT) s 88
  20.  See, eg, Penalties and Sentences Act 1992 (Qld) s 182A(2)(a)(i). 
  21.  Bryce v Chief Executive Officer of Customs (No 2) [2010] QSC 125. See also DJOU v Commonwealth Department of Fisheries [2004] WASCA 282,  [66]-[68] (Roberts-Smith J); Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014), 518.
  22.  See further Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014), 519.
  23.  Section 79A applies to offences against ss 45AF, 45AG, 154Q and 155 of the Competition and Consumer Act 2010 (Cth) and offences against s 149.1 of the Commonwealth Criminal Code that relate to Part XID of the Competition and Consumer Act 2010 (Cth). 
  24.  See Explanatory Memorandum, Senate, Crimes Legislation Amendment (Powers and Offences) Bill 2011, 151. 
  25. The Commonwealth Constitution requires federal judicial power to be exercised only by a court. See also Explanatory Memorandum, Senate, Crimes Legislation Amendment (Powers and Offences) Bill 2011, 151. 
  26.  Explanatory Memorandum, Senate, Crimes Legislation Amendment (Powers and Offences) Bill 2011, 151. 
  27.  Crimes Legislation Amendment (Powers and Offences) Act 2012 (Cth), Sch 8. 
  28. Crimes Act 1914 (Cth) s 15A. 
  29.  See also Bryce v Chief Executive Officer of Customs [2009] QSC 298, [2] (Applegarth J).
  30.  Crimes Act 1914 (Cth) s 15A. 
  31.  Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed, 2014), 483.
  32.  Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2006] QCA 558, [101] (Jerrard JA), citing DJOU v Commonwealth Department of Fisheries [2004] WASCA 282,  [48] (Roberts-Smith J).
  33.  Fakie v Shelverton [2000] WASCA 177, [11] (Heenan J), quoted in DJOU v Commonwealth Department of Fisheries [2004] WASCA 282,  [70] (Roberts-Smith J).
  34.  Adopted by Spender J in Australian Competition and Consumer Commission v Hartwich [2002] FCA 273, [42].  See also Aruli v Mitchell [1999] WASCA 1042. 
  35.  See, eg, Trade Practices Commission v Farrow (1990) 95 ALR 53,  Trade Practices Commission v J & R Enterprises Pty Ltd  (1991) 99 ALR 325; Australian Competition and Consumer Commission v Hartwich [2002] FCA 273. 
  36.  Fryberg J stated that while some Judges had concluded that under the Trade Practices Act 1974 (Cth), the only purpose of default orders was to enforce payment of the fine, that approach was not applicable to the Customs Act 1901 (Cth)or the Excise Act 1901 (Cth). 
  37.  In relation to the Customs Act 1901 (Cth) contemplating that an offence may be indirectly ‘punishable’ by imprisonment, Fryberg J stated at [45]: ‘Reference is made in s 254(2) and s 255(4)(b) (and in the corresponding provisions of the Excise Act) to “proceedings for an indictable offence or an offence directly punishable by imprisonment”. The second of those alternatives seems intended to exclude offences not directly punishable by imprisonment. Offences punishable by imprisonment in default of payment of a pecuniary penalty would be such offences. It is difficult to think of anything else which would be.’
  38.  In the further case of Bryce v Chief Executive Officer of Customs (No 2) [2010] QSC 125, Fryberg J noted at [116]: ‘Thirdly, some of the applicant’s family and friends, and perhaps the applicant himself, seem to believe that the sole purpose of the default imprisonment was enforcement of the pecuniary penalties. That belief is false; if they have been told that by anyone, they have been misinformed. Another, and important, purpose was to ensure that the applicant’s conduct did not go unpunished. As I said at the time the order was made: “Not to impose imprisonment in default … would be to grant immunity for impecuniosity.” The applicant is not in jail simply because he did not pay the penalty; he is there because he committed serious offences against the law.’
  39.  Fakie v Shelverton [2000] WASCA 177, [11].
  40.  Bahloni & Kalungan v Munn (2001) NTSC 101, [28] (Bailey J).  
  41.  This approach to determining an appropriate default period was not challenged on appeal, see  Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2006] QCA 558, [96]-[102] (Jerrard JA).
  42.  See also Bryce v Chief Executive Officer of Customs (No 2) [2010] QSC 125; Wright v Chief Executive Officer of Queensland [2010] QSC 235. 
  43.  (Unreported, Full Court of the Supreme Court of Western Australia, Pidgeon, Franklyn and Walsh JJ, 18 June 1991).