Christine Toon v Margaret Hall No. SCGRG 92/2478 Judgment No. 3959 Number of Pages 4 Criminal Law and Procedure Statutes (1992) 59 Sasr 137

[1993] SASC 3959

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA LEGOE ACJ(1), PERRY(2) AND DUGGAN(3) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure. Power of judge under s.26F(4)(b) of the Service and Execution of Process Act (Cth) 1901 to order community service work in lieu of orders of imprisonment made by a magistrate with regard to road traffic offences incurred in another State.
Statutes - operation and effect of statutes - Section 26F(4)(b) of the Service of Execution of Process Act (1901) Cth does not enable the court to exercise its powers under s.18 of the Criminal Law (Sentencing) Act (1988) (SA) - appeal allowed - fines still owing by respondent to be remitted - consideration of the operation of s.67 of the Criminal Law (Sentencing) Act1988 (SA) in the light of s.26F(4)(b) of the Service and Execution of Process Act (1901) Cth.
Criminal Law (Sentencing) Act 1988 (SA) s.18 and Service and Execution of Process Act s.26F(4)(b).

HRNG ADELAIDE, 6 May 1993 #DATE 6:5:1993
Counsel for appellant:     Mr W C Chivell
Solicitors for appellant:    Crown Solicitor
Counsel for respondent:     Mr G Mead
Solicitors for respondent: Legal Services Commission

ORDER
Appeal allowed.

JUDGE1 LEGOE ACJ This is an appeal from an order of a judge of this court who had undertaken a review of certain orders made in respect to interstate warrants. These orders had been made by a magistrate. The terms of the orders are not really of relevance for the determination of the appeal, except in so far as to say that the magistrate had ordered that sentences of imprisonment be imposed upon the respondent in respect of certain road traffic offences which occurred in the State of Victoria and in respect of which fines and costs had been imposed. 2. The respondent had failed to pay those fines and on the facts, which were apparently accepted by the learned judge on appeal, the respondent had made application to the Clerk of the Court requesting that instead of paying the fines, she carry out community service work. There is no order on the court record to this effect, and I agree with the remarks of the learned judge at the end of his reasons that courts who make such orders or refuse such applications, should make the appropriate endorsement on the warrant for the purposes of establishing some sort of record. 3. The respondent then applied for a review of the orders made by the learned magistrate pursuant to s.26G of the Service and Execution of Process Act 1901 Cth. (hereinafter referred to as "the Act"). 4. The issue raised on this appeal arises under Part 4A of the Act, and in particular, s.26D which makes provision for the issue of warrants of apprehension, s.26E which provides for the execution of a warrant of apprehension, and especially s.26F which provides for proceedings before the court upon the return of the executed warrant. 5. The problem that has arisen in this matter arises under s.26F(4)(b) which provides inter alia, that a court of a State or Territory, having powers in relation to a person under this section may '(b) exercise such other powers in relation to the person as the court has in the case of a person charged with an offence against the law of that State or Territory.' 6. The issue that arose before the learned judge of this court, came before him on an application for review pursuant to s.26G of the Act. Namely, by a person (the respondent in this matter) who claimed to be aggrieved by an order or by the exercise (or I would add, failure to exercise as alleged in this case) of any power under s.26F, the previous section I referred to. 7. Counsel for the appellant has drawn the court's attention to the difficulties that may arise in relation to orders of the sort that were made in this case by the learned judge by reason of s.26M of the Act. However, in my opinion, it is not necessary to determine the proper interpretation and application of 26M in relation to the facts of this case, for reasons that I will mention shortly. 8. The learned judge was of the view that there was power in the court to order community service work in lieu of fines imposed by a court of another State and referred to s.26F(4)(b). Later in his reasons, after considering the merits of the application, the learned judge referred to the argument made by counsel for the respondent of this appeal that by virtue of s.26F(4)(b) of the Act, the court was able to exercise the powers under s.67 of the Criminal Law(Sentencing) Act of 1988 to substitute community service for the fine. It is noted that the wording of that section, as it then appeared, gave certain powers to the appropriate officer but that the definition of "appropriate officer" in s.3 of the Sentencing Act at that time did not include the court. 9. The court notes that this section was substantially amended in 1992, and both counsel agree that the present provisions of s.67 would enable a court in this State, if dealing with an offender in this State, to make the orders that are envisaged by that section. 10. Accordingly, I do not consider that the argument that was put to us by counsel for the respondent this afternoon, that this submission which the learned judge rejected concerning s.67, was still appropriate. In my opinion, in the light of the undertakings given by the appellant, the Crown in this matter, it would be of no purpose to express a view on the interpretation of a section which is now repealed. 11. Having rejected the argument of counsel for the respondent under s.26F(4)(b) with regard to the exercise of his power under s.67 of the Sentencing Act, the learned judge then said:
    "The court is empowered to exercise those powers (that is, the
    powers under s.26F(4)(b)) which might be exercised when a person
    charged with an offence appears before the court to be
    sentenced. An example of those powers are the powers contained
in s.18 of the Sentencing Act. S.67 of the Sentencing Act is not
    such a provision. Powers contained in s.67 are to be exercised
    after a person has been fined and seeks to work off the fine by
community service." 12. His Honour then proceeded to say that: "By virtue of the provisions of s.18 and 47 of the Sentencing Act, I cannot order a period of community service less than 40 hours. In all the circumstances, I think that an appropriate order is that the appellant perform four days community service in respect of each fine, making a total of eight days community service' and made the orders appropriate to that conclusion. Counsel for the appellant has drawn our attention to the provisions of s.18 of the Sentencing Act which clearly relates to the powers of the court to sentence a defendant upon conviction in different ways, including a fine or a sentence of community service. In my opinion, the proceedings under Part 4A of the Service and Execution of Process Act do not enable a court in this State to exercise the powers under s.18 of the Sentencing Act. In my opinion, the powers under that section are beyond jurisdiction. Accordingly, the order made by the learned judge should be quashed. 13. In light of this decision it has been noted by the court that the Crown has given undertakings to the respondent which have been accepted. Firstly, in relation to the costs of the proceedings and secondly, that the Crown do not propose, in this case, to ask for the original orders of the magistrate to be carried out. Out of an abundance of caution, counsel for the respondent has asked this court to remit the fines which are still owing, and counsel for the appellant has agreed to this application. 14. I consider that in the whole of the circumstances, in the light of the undertakings of the Crown, it would be appropriate to make that order in this particular case. However, this is done without deciding the perhaps difficult questions of construction that may arise from any such order, which I consider should be left for another day. 15. In these circumstances, the only orders that I think we should make are that the appeal is allowed and the order of the learned judge is quashed, and that there be an order that the fine imposed upon the respondent be remitted. $NJUDGE2 PERRY J I agree with the orders proposed by the Acting Chief Justice. In doing so, I agree that s.18 of the Criminal Law Sentencing Act does not identify powers which can be invoked by a court charged with the task of enforcing an interstate warrant for the payment of a fine, or by such a court considering an application to ameliorate the effect of an order for payment of such a fine by allowing some alternative to imprisonment on default. 16. In my opinion, s.18 is an application only in circumstances where a defendant has been found guilty of an offence, but has not, at that stage, been sentenced. The section operates to extend the sentencing options in the manner set out in subsections (a) to (d) inclusive of s.18. Given that to be the operation of the section, it is necessarily confined to intrastate matters. It is incapable of application to situations where a person has been convicted and sentenced interstate. In such circumstances, the section does not avail the court. 17. I agree that the appeal should be allowed, the order of the learned Judge appealed from quashed, and that there be an order remitting payments of the fines.

JUDGE3 DUGGAN J I agree with the views expressed by the acting Chief Justice and also by Justice Perry. I add that Part IVA of the Service and Execution of Process Act is concerned with the enforcement of fines imposed by courts of summary jurisdiction in a State or Territory other than the State in which the fine was originally imposed. Although it is true to say that this part of the Act contains powers such as those referred to in s.26F(4)(a), to suspend the execution of an order for committal, the provisions contemplate penalties which have already been imposed. In my view, s.26F(4)(b) does not empower the court to exercise a power such as that contained in s.18 of the Criminal Law Sentencing Act which deals with what might be called the court's original sentencing power.