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POLICE v HANLEY [2011] SASC 175 (5 October 2011)

Last Updated: 24 October 2011

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

POLICE v HANLEY

[2011] SASC 175

Judgment of The Honourable Justice White (ex tempore)

5 October 2011

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPOSITION OF FINES

TRAFFIC LAW - OFFENCES - PROCEDURE - SENTENCE AND PENALTY

Police appeal against decision of Magistrate - respondent pleaded guilty to the offence of driving while disqualified - respondent's vehicle impounded by police - prosecution sought an order under s 9(1) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) requiring respondent to pay impounding fees - Magistrate declined to make the order - whether Magistrate erred in declining to order that the respondent pay the impounding fees.

Held: appeal allowed - Magistrate erred in law in failing to give reasons for refusing to make an order under s 9(1) - Magistrate's refusal to order payment of impounding fees set aside - matter remitted to the Magistrates Court for further consideration of the prosecution application for impounding fees.

Motor Vehicles Act 1959 (SA) s 91(5); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 4, s 5(1), s 9(1), s 9(3); Criminal Law (Sentencing) Act 1988 (SA) s 3(1), s 13; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (SA) reg 6; Sch 1, referred to.

Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Palme [2003] HCA 56; (2003) 216 CLR 212; Police v Fewings [2010] SASC 300; Morely v Police [2005] SASC 233, considered.

POLICE v HANLEY

[2011] SASC 175

Magistrates Appeal (ex tempore)

WHITE J. On 10 November 2010 the respondent drove a motor vehicle on a road at a time when she was disqualified from holding or obtaining a driver’s licence in contravention of s 91(5) of the Motor Vehicles Act 1959 (SA). The police officer who detected the respondent’s offence impounded her vehicle, acting under s 5(1) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (the Impounding Act).
The respondent pleaded guilty in the Magistrates Court to the offence of driving while disqualified from doing so. The Magistrate imposed a conviction and a fine of $50 together with orders that the respondent pay certain costs and levies.
At the same time, the prosecution sought an order under s 9(1) of the Impounding Act requiring her to pay impounding fees as defined in that Act to the Commissioner of Police. The Magistrate declined to make that order.
The appellant appeals against that refusal.
The appeal was first listed for hearing on 21 September 2011. The respondent was notified of that hearing but did not attend. Because of the respondent’s personal circumstances as disclosed in the prosecutor’s affidavit, I adjourned the hearing and requested that the appellant ensure that the respondent was notified appropriately of the date and time of the adjourned hearing. I am satisfied that the respondent was given such notification and that she is aware of this hearing. The appellant has not attended at the hearing today, nor contacted the Court in any way. I determined in these circumstances that it was appropriate to proceed with the appeal in her absence.
Section 9(1) of the Impounding Act provides:

(1) If—

(a) a motor vehicle is clamped or impounded under this Part in relation to a prescribed offence; and

(b) a court subsequently finds the person guilty of the prescribed offence or another prescribed offence arising out of the same course of conduct,

the court must, on application by the prosecution, order that the person is liable to pay the clamping or impounding fees to the Commissioner.

The effect of s 9(1) is to oblige a court finding a person guilty of a prescribed offence to pay clamping or impounding fees to the Commissioner. Neither s 9(1) itself nor any other provision in the Impounding Act vests in a court a discretion in relation to the payment of impounding fees.
The contravention of s 91(5) of the Motor Vehicles Act to which the respondent pleaded guilty is a prescribed offence for the purposes of the Impounding Act. The impounding fees which a person is liable to pay under s 9(1) are prescribed by regulation. See s 9(3) of the Impounding Act, reg 6 and Sch 1 in the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (SA). In the present case the impounding fees claimed by the Commissioner under these provisions amounted to $848.20. There is no reason to suppose that those fees have been inappropriately calculated.
The Magistrate did not give any reasons for refusing to order the respondent to pay the impounding fees. His published remarks comprise only the following:

I record a conviction and a fine of $50 plus court fees of $183 CIC levy of $160 and prosecution costs of $25. Total = $418. Time to pay = 28 days.

His Honour declines to order impounding fees sought by prosecution in the sum of $848.20.

As can be seen, these remarks comprise only a statement of the outcome; they do not provide any reasons for that outcome.
In this respect the Magistrate appears not to have complied with the common law requirements as to the giving of reasons. It is not necessary for present purposes to discuss in detail the obligation of the Court to give reasons or the circumstances in which a failure to do so will amount to an error of law. It is sufficient to refer to the rationale for the provision of reasons given by Kirby J in Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Palme:[1]

... The rationale of the obligation to provide reasons for administrative decisions is that they amount to a "salutary discipline for those who have to decide anything that adversely affects others". They encourage "a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making". They provide guidance for future like decisions. In many cases they promote the acceptance of decisions once made. They facilitate the work of the courts in performing their supervisory functions where they have jurisdiction to do so. They encourage good administration generally by ensuring that a decision is properly considered by the repository of the power. They promote real consideration of the issues and discourage the decision-maker from merely going through the motions. Where the decision effects the redefinition of the status of a person by the agencies of the State, they guard against the arbitrariness that would be involved in such a redefinition without proper reasons. By giving reasons, the repository of public power increases "public confidence in, and the legitimacy of, the administrative process".[2]

(Emphasis added) (Citations omitted)

Although Kirby J made that statement in the context of administrative decisions, his observations are capable of a wider application.
I emphasise, in the context of the present appeal, the effect which the giving of reasons has in promoting a proper consideration by the decision-maker of the issues which arise for determination, and in promoting confidence in those affected by the decisions that the law has been applied properly.
As the Magistrate in the present case rejected a specific application from the prosecutor that he should act in accordance with the obligation imposed on him by s 9(1), I consider that some reasons were required. Those reasons could have been succinct but, given the positive obligation imposed by s 9(1), some explanation should have been given for the Magistrate declining to proceed in accordance with that obligation.
In my opinion, the Magistrate erred in law in this case in failing to give any reasons at all for refusing to make the order which the prosecution sought under s 9(1).
Further, and in any event, an appellate court is much more likely to overturn or vary a discretionary judgment when no reasons are given. That is because the appellate court, in such circumstances, usually has no alternative but to consider the exercise of the discretion afresh.
It is appropriate to consider the discretions which may, despite the apparent mandatory terms of s 9(1) of the Impounding Act, have been available to the Magistrate.
Section 4 of the Impounding Act provides:

(1) A power exercisable under this Act is exercisable in addition to any other penalty that may be imposed on a person in relation to a prescribed offence.

(2) However, a court must, in imposing another penalty on a person in relation to a prescribed offence, have regard to any exercise of powers under this Act.

The effect of s 4 is to make an impounding fee an additional cost or impost to any other penalty which may be imposed. On its face, it contemplates that account must be taken of the impounding fee in fixing any other penalty, but not the converse.
Section 13 of the Criminal Law (Sentencing) Act 1988 (SA) (the CLSA) is applicable.[3]
Section 13 provides:

(1) The court must not make an order requiring a defendant to pay a pecuniary sum (other than a VIC levy) if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that—

(a) the defendant would be unable to comply with the order; or

(b) compliance with the order would unduly prejudice the welfare of dependants of the defendant,

(and in such a case the court may, if it thinks fit, order the payment of a lesser amount).

(1a) In considering whether the defendant would be able to comply with the order, the court should have regard to the fact that defendants may enter into arrangements under Division 3 of Part 9 for an extension of time to pay pecuniary sums or for payment by instalments.

(2) The court is not obliged to inform itself as to the defendant's means, but it should consider any evidence on the subject that the defendant or the prosecutor has placed before it.

Section 13(1) positively requires a court not to make any order requiring a defendant to pay a “pecuniary sum”, other than a victims of crime levy, if the court is satisfied that the defendant has limited means and that the circumstances set out in sub-paragraphs (a) or (b) exist. The expression “pecuniary sum” is defined in s 3(1) of the CLSA in a way which is capable of including impounding fees under the Impounding Act.

Defendants have an evidentiary onus of establishing that their means are of a kind to which s 13(1) refers.
It is possible that the Magistrate was acting under s 13 of the CLSA in the present case.
The prosecutor’s affidavit indicates that the respondent was unrepresented before the Magistrate. It indicates also that the respondent made brief submissions concerning her personal circumstances. These included informing the Court of her pregnancy; of medical problems associated with that pregnancy which necessitated her being hospitalised from time to time; that she was not working; and that she had other children.
On their face, these circumstances suggest that the respondent’s financial circumstances may be difficult. However, the respondent did not provide the Magistrate with any details regarding her financial position and, as the prosecutor has deposed, the Magistrate made no inquiries in that respect.
In these circumstances, the Magistrate could not have been satisfied that the respondent’s circumstances were of the kind to which s 13(1) of the CLSA refers.
In this respect, I note that in Morley v Police,[4] Duggan J declined to act on the general description of a defendant’s circumstances (which were somewhat similar to those of the present respondent) in the absence of specific financial information. Duggan J said:

Unfortunately the submissions were not supported with any financial information which might have indicated that the defendant would be unable to pay the actual amount or that compliance with the order would unduly prejudice the welfare of the dependants of the appellant. The submissions which were made on the general situation of the appellant do not provide a sufficient basis for such an assessment. I cannot say that the magistrate must have been satisfied of the matters referred to in s 13(1)(a) or (b) on the information before him so as to refrain from requiring the appellant to pay the pecuniary sums.[5]

Accordingly, I conclude that the Magistrate did not, in the circumstances of this case, have a proper basis upon which he could have determined that s 13 required him not to make an order for payment of the impounding fees.
It is also pertinent to note that the Magistrate did impose a fine and ordered that the respondent pay fees and levies which together totalled $418. In doing so, the Magistrate must not have been satisfied that the respondent’s circumstances were such that s 13(1) precluded him from requiring the respondent to pay the pecuniary sums. It does not follow of course that a capacity in the respondent to pay fines and fees totalling $418 meant that she also had the capacity to pay impounding fees totalling $848.20, but it is at least a circumstance which requires some consideration.
For these reasons I consider that the appeal should be allowed. There is, however, an issue as to how the Court should proceed from here.
Mr Rodriguez who appeared for the appellant accepted, quite properly and fairly, that the Court may consider it appropriate for the matter to be remitted to the Magistrates Court. This would afford the respondent an opportunity to make submissions concerning her means with a view to satisfying the Court of the circumstances to which s 13(1) of the CLSA refers.
I consider that this is the appropriate course to follow. It is not apparent from the prosecutor’s affidavit that the Magistrate did inform the respondent of the effect of s 13 of the CLSA, and of the matters about which the respondent would have to satisfy him in order that he could act in accordance with that provision. The respondent may not have been aware of these matters.
I do not intend by these remarks to express any criticism of the Magistrate in this respect. It would be inappropriate to do so given the limited materials before the Court. It is sufficient, however, to say that the prosecutor’s affidavit does suggest that the Magistrate may not have informed the respondent of s 13 and of the matters which she would need to establish in that respect, nor enquired of her whether she wished to put before the Court the kind of financial material which would enable him to act under that provision.
It could be said that by not attending at this appeal hearing, the respondent has indicated a disinterest in providing information of this kind. However, I am not prepared to act on that view of the matter. There may be other reasons for the respondent’s non-attendance and they may include her continued lack of awareness of s 13 and of the discretionary relief which may be available under that provision.
For these reasons I consider that the appropriate course is to remit the matter to the Magistrates Court for further consideration.
I allow the appeal. I set aside that part of the Magistrate’s decision in which he refused to order payment of the impounding fees. I remit the matter to the Magistrates Court for further consideration by the Magistrate or, if he is not available by another Magistrate, of the prosecution application for impounding fees under s 9(1) of the Impounding Act.
I direct that a copy of these reasons, once formally published, be sent by post to the respondent’s address.

[1] [2003] HCA 56; (2003) 216 CLR 212.

[2] Ibid at [105], 242.

[3] Police v Fewings [2010] SASC 300 at [10].

[4] [2005] SASC 233.

[5] Ibid at [20].

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POLICE v HANLEY [2011] SASC 175 (5 October 2011)

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