Adrian William Jones v Christopher Zanker

[1992] SASC 3589

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA COX J

CWDS
Criminal law and procedure - particular offences - miscellaneous offences - Explosives Regulations 1975, Reg.9.02 - storing explosives in unpermitted way - maximum penalty $500 - appellant required to perform 60 hours of community service - fine substituted.

HRNG ADELAIDE, 24 August 1992 #DATE 24:8:1992
Counsel for appellant:     Ms K A Whimp
Solicitors for appellant:    Aboriginal Legal Rights
   Movement Inc.
Counsel for respondent:     Ms J F Lee-Justine
Solicitors for respondent: Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 COX J This is an appeal by a defendant against an order that he perform 60 hours of community service. He pleaded guilty to a charge under regulation 9.02 of the Explosives Regulations 1975, as amended, of having stored explosives otherwise than in the manner required or permitted by the Regulations. In fact, he was found with 10 sticks of gelignite and 10 detonators in a cupboard in a house he was occupying and there was no attempt, evidently, to comply with the very necessary safety provisions of the Regulations for the storage of explosives. The only explanation that the appellant made to the authorities who investigated the matter was that he got the gelignite from interstate. He admitted that he kept it in a box in a wardrobe and that he did not have a permit to keep explosives. 2. There is no evidence that the appellant gave any other information to the court when he was convicted, so this court, on the appeal, is confined to the explanation that he gave to the investigating official. All sorts of reasons can be conjectured for his possession of the explosives, but it is possible to have explosives in one's possession for a legitimate purpose and I am not entitled to assume that the appellant's purpose was other than lawful and proper. I approach the appeal accordingly. 3. I am told that the appellant is an Aborigine. Unfortunately, while there is the usual affidavit from the prosecutor outlining what he said to the court, there is no evidence at all, formal or informal, about anything that the appellant might have said. There is no affidavit, for instance, no transcript, no note taken by the learned magistrate which can assist on that subject. Nor is there anything about the appellant's circumstances or means. I do not know, for instance, whether the learned magistrate made the community service order because he was aware or deduced that the appellant did not have a job or was otherwise short of money, so that in the magistrate's view a community service order was the best and most practicable course to take. It is unfortunate that I have to deal with the case in ignorance of those circumstances. 4. There has been some discussion in the submissions of counsel this morning of the principles that should properly be applied where a community service order is made by virtue of s.18(d) of the Sentencing Act. That paragraph provides that where the special Act prescribes a fine only for the offence, the court may instead impose a sentence of community service. The regulation and ultimately the Act under which this appellant was charged prescribes only a fine, and it is a fine not exceeding $500. Now whatever possible correlation there may be between a fine and a community service order, it must surely be open to a court to look at the impact upon a defendant of the fine that would be appropriate for the particular offence and offender in the absence of the para.(d) power, and then look at the impact on the offender of the particular community service that was ordered pursuant to para.(d) - here 60 hours. 5. In making that comparison in this particular case I am led to the conclusion that the penalty was excessive. I say that because, while one cannot be dogmatic about it, a fine of $150 appears to me to be an appropriate fine. There is no suggestion that the appellant had any relevant convictions. I think it is important that there was not in fact any danger, actual danger, to anyone occasioned by the totally inadequate method he chose for the storage of these explosives; no evidence, for instance, that anyone else, much less children, occupied the house or had access to the house and therefore to the cupboard. Of course there must always be a degree of potential danger, even without those features, but it would be significant if there were no evidence of actual danger, no one, in other words, to be endangered whose presence could reasonably be foreseen. 6. So, as I say, in all the circumstances it seems to me that $150 would have been an adequate fine for this offence. I do not accept the argument that community service is to be judged, for any purpose at all, according to the value of that time in wages terms. I think that would be quite wrong. Nor does the observation that I have made about the severity of the order for 60 hours community service depend upon the provisions of s.67 of the Sentencing Act, which rates a fine, for certain purposes, in community service terms. I do no more than look at the impact of the hypothetical fine in the one case and of the community service order in the other, reckoning in the latter case the time the appellant would have to sacrifice, and that would include his getting to and from the place where the community service would be performed, and the effort, for generally this is manual work, that he would have to expend during the stipulated period. 7. So judged, I think that the order for 60 hours community service was simply too burdensome for the offence in question. On that ground I am willing to allow the appeal. 8. That leaves the penalty at large. Again, there has been discussion before me about the propriety or otherwise of a court, notwithstanding the provisions of s.67, ordering community service because it considers that the particular defendant would or may be financially embarrassed by a fine. I do not want to make any general remarks on that topic beyond saying that one of the great merits of the changes in the sentencing provisions in quite recent years is to expand the range and increase the flexibility of sentencing options, and I think it would be a pity if too much were said that might have the effect of reducing those options. 9. However, the penalty for this offence now being at large, I am willing to take into account the appellant's specific request this morning, by his counsel, for a fine rather than community service; and I should say, as is probably apparent already, that the paucity of relevant facts on the matter of sentence, before me at any rate, includes any information about the appellant's employment circumstances. He may be perfectly able to pay a fine without the slightest embarrassment for all I know. 10. For the reasons that I have given the appeal will be allowed and the order that was made by the learned magistrate for the performance of community service set aside. Instead, the appellant will be fined $150. 11. The order for the payment of costs, including a levy of $63, that was made in the magistrates court will not be disturbed. I allow three months to pay. 12. The respondent must pay the appellant's costs, which I fix at $120.