Cutting v Police - [2009] SASC 326

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CUTTING v POLICE
[2009] SASC 326
Judgment of The Honourable Chief Justice Doyle
16 October 2009
CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - FORFEITURE OR CONFISCATION - GENERALLY
TRAFFIC LAW - OFFENCES - PROCEDURE - SENTENCE
The car the appellant was driving at the time that he committed an offence to which the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) ("the Act") applies became liable to forfeiture under s 12(1)(a)(iii) of the Act – car written off in accident prior to hearing of application for forfeiture – pursuant to s 13(2) of the Act, Magistrate ordered that appellant perform 240 hours of community service within 12 months of the date of the order – appeal against order of Magistrate.
HELD: court may only decline to make one of the orders specified in s 12(1)(a) if satisfied of the existence of one of the circumstances in s 13(1) – in ordering that a person perform community service pursuant to s 13(2) of the Act, a court should have regard to the order otherwise to be made pursuant to s 12(1)(a) of the Act and to the effect on the person of any order for the performance of community service – unnecessary to decide whether provisions of the Criminal Law (Sentencing) Act 1988 (SA) apply to the making of an order under s 13(2) – discretion conferred on Magistrate miscarried – appeal allowed.
Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 3(1), s 4, s 4(2), s 11, s 12(1)(a), s 12(1)(a)(iii), s 13(1), s 13(1)(a), s 13(1)(d), s 13(2); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (SA) reg 4; Criminal Law (Sentencing) Act 1988 (SA) s 3(1), s 10, s 47(1), s 47(1)(e), s 47(1)(h); Motor Vehicles Act 1959 (SA) s 91(5); Road Traffic Act 1961 (SA) s 46, s 47B(1), referred to.

CUTTING v POLICE
[2009] SASC 326
Magistrates Appeal: Criminal

DOYLE CJ: An application was filed in the Magistrates Court by a member of the police force seeking an order for the forfeiture of a motor vehicle (“the car”) pursuant to s 12(1)(a)(iii) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (“the Act”). The Magistrate declined to make the order sought on the ground that the car had been disposed of in the circumstances specified in s 13(1)(d) of the Act. Exercising the power conferred by s 13(2) of the Act, the Magistrate ordered that Mr Cutting perform 240 hours of community service within 12 months of the date of the order of the Magistrate.
Mr Cutting appeals against the order of the Magistrate requiring him to perform 240 hours of community service. The grounds of appeal treat the order as a penalty and complain that the order of the Magistrate requiring Mr Cutting to perform 240 hours of community service was manifestly excessive. Second, the grounds of appeal complain that the Magistrate failed to take into consideration the provisions of s 47(1)(f) and s 47(1)(h) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). Third, it is submitted that the Magistrate failed to take into account the effect that the order that he made would have on the continuation of Mr Cutting’s employment.
These are my reasons for the order that I made after hearing submissions.
Background
On 12 October 2008 Mr Cutting was detected driving while there was present in his blood the prescribed concentration of alcohol, an offence against s 47B(1) of the Road Traffic Act 1961 (SA) (“the RTA”). A complaint filed in the Magistrates Court subsequently charged Mr Cutting with an offence against that section. Regulation 4(b) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (SA) (“the Regulations”) provides that an offence of this type is a “prescribed offence” for the purposes of s 3(1) of the Act.
On 16 February 2009 the police filed an application in the Magistrates Court seeking the forfeiture of the car, which was registered in the name of Ms Cutting. She is Mr Cutting’s mother. The application set out the offence with which Mr Cutting had been charged (“the 2008 offence”). The car was the car that Mr Cutting was driving when he was alleged to have committed the 2008 offence.
The application also set out four other offences for which Mr Cutting has been convicted. On 1 March 2005 Mr Cutting was convicted of driving while disqualified from holding or obtaining a driver’s licence, contrary to s 91(5) of the Motor Vehicles Act 1959 (SA). As this was not Mr Cutting’s first offence against that section, it was a prescribed offence by operation of reg 4(f) of the Regulations. On the same date, he was convicted of driving a vehicle at a speed dangerous to the public, an offence against s 46 of the RTA. This is a prescribed offence for the purposes of the Act: reg 4(b) of the Regulations. Mr Cutting was convicted on the same date of driving while there was present in his blood the prescribed concentration of alcohol. This is a prescribed offence for the purposes of the Act. On 28 September 2004 Mr Cutting was convicted of driving a vehicle at a speed dangerous to the public. Again, this is a prescribed offence for the purposes of the Act.
On 23 June 2009 Mr Cutting was convicted of the 2008 offence. The 2008 offence was committed after the commencement of Part 3 of the Act. Mr Cutting committed the 2008 offence while he was driving a car which was lawfully in his possession. He had been found guilty of three or more prescribed offences within the ten years prior to the date on which the 2008 offence had been committed. Accordingly, by operation of s 11 of the Act, Part 3 of the Act applied to the conviction for the 2008 offence. Section 11 provides as follows:
11    Application of Part
This Part applies to a conviction for a prescribed offence if -
(a)     the offence was committed after the commencement of this Part; and
(b)the convicted person has, during the period of 10 years immediately preceding the date of the offence, been found guilty of, or has expiated, at least 1 other prescribed offence; and
(c)     either -
(i)a motor vehicle was used by the convicted person in the commission of the offence and that motor vehicle was not, at the time of the offence, stolen or otherwise unlawfully in the possession of the person or being used by the person in circumstances (if any) prescribed by regulation; or
(ii)    the convicted person is a registered owner of a motor vehicle.
The application for a forfeiture order came before the Magistrates Court in August 2009.
Section 12 of the Act sets out the orders to be made by a court on an application under the Act. The relevant provisions are as follow:
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 -
...
(iii)if the convicted person has, during the period of 10 years immediately preceding the date of the offence, been found guilty of, or expiated, 3 or more other prescribed offences—that the motor vehicle specified in the application is forfeited to the Crown; ...
The section contains other administrative and procedural provisions, none of which are relevant.
As can be seen, on its face s 12(1)(a)(iii) confers no discretion on a court considering an application made under the Act. However, s 13 of the Act sets out the circumstances in which a court can decline to make an order sought under s 12. Section 13 is as follows:
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; or
(c)the making of the order would significantly prejudice the rights of a credit provider; or
(d)the motor vehicle the subject of the application is a motor vehicle referred to in section 11(c)(i) and has, since the date of the offence, been sold to a genuine purchaser or otherwise disposed of to a person who did not, at the time of the sale or disposal, know or have reason to suspect that the motor vehicle might be the subject of proceedings under this section.
(2)     If—
(a)    a court declines to make an order under this Part; and
(b)the court is satisfied that it would be reasonably practicable for the convicted person to instead perform community service,
the court must order the convicted person to perform not more than 240 hours of community service.
(3)     An order to perform community service under subsection (2) must be dealt with and enforced as if it were a sentence of community service (and in any enforcement proceedings the court may exercise any power that it could exercise in relation to a sentence of community service).
When the matter came before the Magistrate, the Magistrate considered that s 13(1)(d) of the Act applied. That is, that the car was a motor vehicle referred to in s 11(c)(i) that had been disposed of to a person who did not know that the car was the subject of proceedings under the Act. It appears to have been accepted that Mr Cutting was not the owner of the car, and that he had permission to use it. Accordingly, the Magistrate declined to make an order for the forfeiture of the car.
The Magistrate noted that Mr Cutting is employed as a truck driver, and spends only limited time in Mount Gambier. He rejected the submission of counsel for Mr Cutting that, in light of that, it would not be reasonably practicable for Mr Cutting to complete a period of community service. Pursuant to s 13(2) of the Act, he ordered that Mr Cutting perform 240 hours of community service within 12 months. The Magistrate said that the time that he had allowed for the completion of the period of community service rendered it reasonably practicable for Mr Cutting to complete that amount of community service.
Consideration of Submissions
It is necessary to consider whether the power conferred in s 13(2) was enlivened.
As I have noted, on an application under the Act, the court before which the application comes “must” make the order sought under s 12 if the relevant part of the Act applies. However, s 13(1) specifies circumstances in which a court may decline to make the order sought in the application. Having regard to the mandatory language used by Parliament in s 12, and the fact that the power to decline to make an order under s 12 is conditioned on the court being satisfied of the existence of one of the circumstances specified in s 13(1), the court may decline to make an order sought under s 12 of the Act only in the circumstances specified in s 13(1). Subject to s 13, the court is under an obligation to make an order of the kind specified in s 12.
Accordingly, the order that the Magistrate made can only be supported if it was open to the Magistrate to find that s 13(1)(d) applied to the facts of this case. There is no suggestion that the other sub-paragraphs of s 13(1) applied. The parties accepted that s 13(1)(d) applied, and accordingly the power to decline to make a forfeiture order was enlivened.
That meant that the Magistrate, if he exercised the power conferred by s 13(1), was obliged to consider exercising the power conferred by s 13(2).
Before making an order requiring a person to perform a period of community service, the court must be satisfied that it is “reasonably practicable” for the person to perform community service: s 13(2)(b) of the Act. As I have noted, the Magistrate rejected the submission of counsel for Mr Cutting that, having regard to Mr Cutting’s employment as a truck driver and infrequent stays in South Australia, it would not be “reasonably practicable” for Mr Cutting to perform a period of community service.
In an affidavit sworn by Mr Cutting’s solicitor, the solicitor says that Mr Cutting is employed full-time by a transport company based in Melbourne. Mr Cutting must be in Melbourne when required by his employer. His employment involves driving trucks between Melbourne and Sydney, and at times, between Melbourne and Adelaide. Mr Cutting is in Mount Gambier about one week in three and effectively for about three days at a time. This, I assume, is because the day of arrival and the day of departure are not treated as relevant days. I also assume that this was the submission made to the Magistrate. The solicitor states that in order for Mr Cutting to perform the number of hours of community service that the Magistrate ordered, he would have to perform eight hours of community service every day that he was present in the State and not working. He argues that completion of the community service obligation would put Mr Cutting’s job at risk, and would deprive him, in effect, of his rest days.
The Magistrate correctly concluded that the case fell within s 13(2) of the Act. It was reasonably practicable for Mr Cutting to perform community service.
Accordingly, the Magistrate was obliged to order that Mr Cutting perform a period of community service. However, the number of hours of community service was a matter for the Magistrate.
In exercising this discretion, a magistrate would have regard to the order that the magistrate would otherwise be obliged to make under s 12 of the Act. In this case, the order would have been one for the forfeiture of the car under s 12(1)(a)(iii). This is the most severe order that a court can make under s 12(1)(a). The other orders provided for in s 12(1)(a) are for the temporary impounding of the motor vehicle the subject of the application. This circumstance would support the imposition of a substantial period of community service.
It is not necessary to decide whether a court should take into account the number of “prescribed offences” on the basis of which s 11 of the Act comes to be applicable. Mr Cutting has been convicted of four prescribed offences. This is only one more than the number that attracts s 12(1)(a)(iii) of the Act. As such, it is not a separate factor supporting a longer period of community service rather than a shorter period. It may be, in any event, that the number of “prescribed offences” is not relevant to the exercise of the discretion under s 13(2) of the Act.
The Court would also consider the effect on the person of any order for the performance of community service. In this case, while it may be reasonably practicable for Mr Cutting to perform community service, Mr Cutting’s employment and infrequent presence in South Australia should be taken into account in determining the period of community service that Mr Cutting must perform.
As I have said, it seems to me that come what may, the Court would have regard to the matters just referred to.
Although no submissions were directed to this point, it is appropriate to refer to some other issues that might arise in the application of the Act. Section 4 of the Act provides:
4      Powers under Act in addition to other penalties
(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 reference to “any other penalty” and to “another penalty” suggests that the exercise of the power conferred by s 13(2) of the Act constitutes the imposition of a penalty arising from the commission of the offence that attracts the operation of s 11 of the Act.
If that is so, then the exercise of the power may amount to the determination of a sentence for the purposes of the Sentencing Act. The Sentencing Act defines “sentence” in s 3(1) as meaning:
sentence means -
(a)     the imposition of a penalty; or
(b)     the decision of a court to offer a defendant an opportunity to enter into a bond; or
(c)     the fixing, extending or negating of a non-parole period; or
(d)     the making of any other order or direction affecting penalty;
The Sentencing Act does not define the word “penalty”.
If that is so, then to some extent at least, the matters referred to in s 10 of the Sentencing Act may be relevant to the exercise of the power under s 13.
As well, on the same hypothesis the provisions of s 47 of the Sentencing Act might apply. Section 47 sets out a number of provisions that must be observed when a court “imposes a sentence of community service”. Provisions found in s 47(1) which might be of particular relevance to this case are the following:
47 Special provisions relating to community service
(1)Where a court imposes a sentence of community service, or includes in a bond a condition requiring the performance of community service, the following provisions apply:
…
(b) the court must not specify a number of hours of community service to be performed by a person who is already performing, or is liable to perform, community service, where the aggregate of that number and the number of hours previously specified would exceed 320; and
…
(e) the person is required to perform community service for not less than 4 hours each week and on such day, or days, as the community corrections officer to whom the person is assigned may direct; and
…
(h) the person may not be required to perform community service at a time that would interfere with his or her remunerated employment or with a course of training or instruction relating to, or likely to assist him or her in obtaining, remunerated employment, or that would cause unreasonable disruption of the person's commitments in caring for his or her dependants; …
It is not suggested in this case that Mr Cutting was already under an obligation to perform community service. If s 47(1)(e) means that community service must be performed each week until completed, an obvious difficulty would arise in the present case. But it may be that s 47(1)(e) is subject to s 47(1)(h). As well, having regard to the submissions made to the Magistrate, an issue arose under s 47(1)(h).
It is not necessary to decide in this case whether these provisions of the Sentencing Act apply. In my opinion, whether they apply or not, the Magistrate should have had regard to the practicality of discharging the obligation that he imposed, and to the potential impact on Mr Cutting’s employment of the order that he made.
I have no reason to doubt that the Magistrate considered these matters, but I must say that it seems to me that he failed to give them adequate weight.
The brief note of the Magistrate’s decision does not suggest that he rejected the submissions put to him by counsel for Mr Cutting. If one accepts that Mr Cutting was in Mount Gambier about one week in three, he would be in Mount Gambier in about 17 weeks each year, and on the same basis for about three clear days on each occasion. That suggests something between about 50 days a year and 60 days a year. It would be difficult to discharge an obligation to perform 240 hours in that period, particularly if the days on which he was in Mount Gambier could not be identified well in advance. In light of that, it seems to me that there was a real risk that the obligation would cause problems with Mr Cutting’s regular employment, a factor which one would ordinarily expect a magistrate to consider.

I am satisfied that the exercise of the discretion conferred on the Magistrate by s 13 has miscarried, in that the Magistrate has imposed an obligation that is unreasonable in all of the circumstances.
The appeal should be allowed. There is no reason why I should not exercise the discretion. The relevant information is in a small compass, and I am as well placed as another magistrate would be to decide the matter.
It is not possible to be precise. Having regard to the circumstances, I consider that an order that Mr Cutting perform 100 hours of community service is appropriate. This is a substantial obligation, but one that should not interfere with his employment.
The application of the provisions of the Act must cause some problems for magistrates. Often the court will have dealt with the offence that attracts the operation of s 11 before the application is made under s 12 of the Act. It will be difficult for the court that imposes the penalty for the offence that attracts the operation of s 11 to have regard to the exercise of powers under the Act, as required by s 4(2). The sentencing court will not know how the powers under the Act will be exercised. It is also difficult to see how any measure of consistency as between offenders or as between offences can be achieved. A vehicle that is forfeited, or that is not forfeited by operation of s 13 of the Act, might be a very valuable vehicle, or might be almost worthless. Does the court have regard to this when considering s 13(1)(a) (set out above) and when considering the number of hours of community service that should be performed? If the vehicle in question is almost valueless, arguably it would be in the interests of the offender to submit to a forfeiture order, thereby avoiding an obligation to perform community service.
Be that as it may, I am able to decide the present case on a relatively narrow basis, and without considering the application of the Sentencing Act.
For the reasons given, I made the following orders at the hearing of the appeal:
1 That the appeal be allowed.
2That the order of the Magistrates Court ordering Mr Cutting to perform 240 hours of community service within 12 months of 5 August 2009 be set aside.
3That for that order an order be substituted that Mr Cutting perform 100 hours of community service within 12 months from this date; that Mr Cutting report to a Community Corrections Officer at the Office of the Department of Correctional Services at 114 Commercial Street East, Mount Gambier, within 14 days of today; and that Mr Cutting obey the lawful directions of the Community Corrections Officer assigned to him.
4That there be no order as to the costs of the appeal.