CHAMBERLAIN v Police

[2015] SASC 104

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

CHAMBERLAIN v POLICE

[2015] SASC 104

Judgment of The Honourable Justice Sulan

17 July 2015

TRAFFIC LAW - REGISTRATION AND LICENSING OF PRIVATE VEHICLES - UNREGISTERED VEHICLES

This is an appeal against the refusal of a Magistrate to decline to make a forfeiture order in relation to the appellant's vehicle, which was his primary place of residence at the time of forfeiture.  The appellant argued that the vehicle being his place of residence gave rise to a situation of undue hardship as a result of the forfeiture.

The appellant was unable to demonstrate error by the Magistrate in refusing to make the forfeiture order.  Further, the situation of hardship was not ongoing at the time of the appeal, meaning no grounds existed to overturn the forfeiture order.

Held:  Appeal dismissed.

Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 12, s 12(1)(a)(iii), s 13, s 13(1), referred to.

CHAMBERLAIN v POLICE
[2015] SASC 104

Magistrates Appeal:                  Criminal

1. SULAN J:  This is an appeal against the refusal of a Magistrate to decline to make an order for forfeiture of a 1974 Kombi van owned by the appellant pursuant to the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (“the Act”). The appellant is seeking return of the vehicle. At the time the forfeiture order was made by the Magistrate, the appellant was living in the vehicle. At the time this appeal came before this Court, the appellant had secured accommodation and an alternate vehicle.

2. Section 12 of provides:

   12—Court order for impounding or forfeiture on conviction of prescribed offence

   (1)Subject to section 13, if this Part applies to a conviction for a prescribed offence, the court that records the conviction must, on the application of the prosecution—

   (a)     order that the motor vehicle specified in the application is forfeited to the Crown if—

                   (i)     the offence is a forfeiture offence; or

   (ii)the convicted person has been found guilty of or expiated at least 1 other prescribed offence committed or allegedly committed within 12 months of the date of the offence; or

   (iii)the convicted person has been found guilty of or expiated at least 2 other prescribed offences committed or allegedly committed within 10 years of the date of the offence; or

   (b)    order that the motor vehicle specified in the application be impounded by the relevant authority for a period not exceeding 6 months if—

   (i)the convicted person has been found guilty of or expiated 1 other prescribed offence committed or allegedly committed within 10 years of the date of the offence; and

                   (ii)    paragraph (a) does not apply.

   ...

   The appellant was convicted on 13 March 2015 of a prescribed offence, namely driving the vehicle unregistered and uninsured, and altering a defect notice. He had numerous previous convictions and expiations for prescribed offences. He was, therefore, subject to an order pursuant to s 12(1)(a)(iii) of the Act.

3. Counsel for the police correctly submitted that in order to enliven the discretion to decline to make a forfeiture order, special circumstances must exist pursuant to s 13 of the Act which provides:

   13—Court may decline to make order in certain circumstances

   (1)A court that records a conviction to which this Part applies may decline to make an order under this Part if satisfied that—

   (a)     the making of the order would cause severe financial or physical hardship to a person; or

   (b)     the offence occurred without the knowledge or consent of any person who was an owner of the motor vehicle at the time of the offence;

   ...

4. This appeal was brought on the ground of severe financial and physical hardship suffered as a result of the forfeiture. The appellant had argued before the Magistrate that he would suffer severe hardship because the vehicle was effectively his home.  He would suffer financial hardship because it was his only asset of value, worth $1000.

   The appeal

5. The appellant was self‑represented. He confirmed that since the Magistrate’s decision he has secured accommodation. He has also purchased another motor vehicle which is registered. The circumstances of physical and financial hardship relied upon by the appellant before the Magistrate no longer apply. There is no basis upon which the Court could now apply s 13 of the Act. Further, having considered the Magistrate’s reasons, I conclude that he took all relevant matters into account. There is no basis demonstrated to overturn his decision.

   Conclusion

6. The appeal is dismissed.