Frohling v Police
[2011] SASC 53
•20 April 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FROHLING v POLICE
[2011] SASC 53
Judgment of The Honourable Justice Nyland
20 April 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE
Appeal against sentence - impounding order made in addition to sentence imposed for driving offences - question of financial or physical hardship - whether Magistrate erred in declining to exercise her discretion under s 13 Impounding Act - whether Magistrate failed to have regard to relationship between s 4(2) and s 13 - appellant required to establish more than ordinary hardship - appellant repeat offender - no error in approach taken by Magistrate - appeal dismissed.
Road Traffic Act 1961 (SA) S 47B; Motor Vehicles Act 1959 (SA) s 81A; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) ss 4, 11, 12, 13, referred to.
Taylor v Attorney-General (SA) (1991) 55 SASR 462, discussed.
Cutting v Police 2009 SASC 326, considered.
FROHLING v POLICE
[2011] SASC 53
Magistrates Appeal
NYLAND J: This is an appeal against an impounding order made by a Stipendiary Magistrate in the Mount Barker Magistrates Court on 17 November 2010. On that occasion the appellant pleaded guilty to one count of driving a vehicle whilst exceeding the prescribed concentration of alcohol, contrary to s 47B Road Traffic Act 1961 (SA) (“RTA”) and one count of breaching a prescribed condition of his probationary licence contrary to s 81A Motor Vehicles Act 1959 (SA) (“MVA”).
Following the entry of the pleas of guilty the prosecution made an application for an order impounding the appellant’s vehicle, pursuant to s 12b(i) Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (“Impounding Act”). The learned Magistrate granted that application and in addition to imposing penalties with respect to the charged offences, made an order impounding the appellant’s vehicle for a period of two months.
The appellant subsequently filed a number of notices of appeal with numerous grounds but the only ground finally relied upon by him was:
That the learned Stipendiary Magistrate failed to take into account s 4 of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) and, in particular, the combined effect of disqualifying the Appellant from holding a driver’s licence and impounding his vehicle, when considering whether the Appellant would suffer severe physical hardship as a result of the impounding order.
Background
On 7 August 2010, whilst driving a motor vehicle, the Appellant was stopped by police and recorded a blood alcohol reading of 0.160grams. That constituted the offence charged with respect to count 1 (“the PCA offence”). The appellant had a prior conviction for a PCA offence as a result of which he was the holder of a probationary licence at the time of the present offending. It was a condition of that licence that he have a zero alcohol level when driving. The appellant’s blood alcohol reading on the day in question put him in breach of that condition and that breach gave rise to the charge contained in count 2.
The appellant was represented by counsel in the Magistrates Court. His counsel submitted that the making of an impounding order would cause the appellant severe physical and financial hardship. The Magistrate was told that the appellant had been drinking on the day in question because he was distressed about the fact that he would have to have an operation to repair an Achilles tendon injury incurred when playing football. The Magistrate was also told that the appellant resided in Lobethal where there was no readily available public transport and he was obliged to rely on friends and family to assist with travel requirements. In addition the vehicle, which was the subject of the application, was a distinctive vehicle known within the community as belonging to the appellant and assisted with advertising his business. The Magistrate apparently made enquiries as to whether the appellant had family and friends who had their own vehicles and counsel advised that he believed they did but he did not have instructions as to how many and how reliable they were. The Magistrate then commented that those vehicles could be used in place of the appellant’s vehicle.
Orders made by the Magistrate
In her remarks on penalty the learned Magistrate referred to the injury suffered by the appellant, but said she did not consider that mitigated the offence but at least it provided some sort of background. She accepted that the loss of licence would be difficult for the appellant because he would require others to transport him but said there were a number of family members who could do that. The Magistrate, understandably, gave little weight to the submission that the use of the appellant’s motor vehicle assisted him with advertising his business. She eventually fined the appellant the sum of $1,200 for the PCA offence and taking into account the fact that the appellant had already served three months and 10 days loss of licence, imposed a further period of disqualification for two years and nine months. This meant that the order for disqualification was effectively only 10 days more than the minimum prescribed by the legislation.
In relation to the charge of contravening a condition of his probationary licence the appellant was fined the sum of $200, together with court costs, victims of crime levy and prosecution costs.
The learned Magistrate then made an order that the appellant’s motor vehicle be impounded for a period of two months and that the appellant pay the costs associated with that order. However, the Magistrate did not fix a date upon which the order should take effect and as I understand the matter the order has not yet been enforced.
Impounding Act 2007 (SA)
The Impounding Act came into operation on 16 December 2007. This Act establishes a regime pursuant to which courts and certain law enforcement authorities are invested with jurisdiction to make forfeiture and impounding orders with respect to motor vehicles. The components of that Act which are relevant to this appeal are those set out in Part 3 of the Act. Part 3 empowers a court dealing with a person for a prescribed offence to order that a vehicle be impounded for a period of up to six months, provided that a number of conjunctive pre-conditions as set out in s 11 are established.[1] The relevant pre-conditions for present purposes are as follows:
1.The convicted person has been found guilty of a prescribed offence committed after the commencement of Part 3 (s 11(a)). Section 3 Impounding Act defines a prescribed offence, inter alia, as an offence of a kind prescribed by regulation. Regulation 4 provides that an offence contrary to s 47B RTA, ie a PCA offence, is a prescribed offence.
2.The convicted person has been found guilty of at least one other prescribed offence within 10 years of the subject offence. In this case the appellant had been convicted of an earlier PCA offence on 15 February 2009.
3.The convicted person must have used a motor vehicle in the commission of the subject offence or otherwise have been the registered owner of a motor vehicle.
[1] At the time of the offending the maximum period was three months, but at the date of sentence six months.
If the above circumstances are established, Part 3 Impounding Act applies. The court then records a conviction for the relevant prescribed offence and, on the application of the prosecution the court must, pursuant to s 12 Impounding Act:
(a)…
(b)order that the motor vehicle specified in the application be impounded for a period not exceeding six months.
Once an application is made, s 12 does not provide the court with any discretion to refrain from the making of the order.[2] That is to be found in s 13 of the Act which sets out the circumstances in which a court can decline to make an order sought under s 12. Section 13 provides:
[2] Cutting v Police 2009 SASC 326.
(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 …
(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.
In this case, there was no dispute before the Magistrate or on appeal that the preconditions for the making of an order pursuant to s 12 had been established. As a result, subject to the provisions of s 13, the learned Magistrate was obliged to make the impounding order sought by the prosecution, as well as the order that the appellant pay the costs associated with that order.
Submissions by counsel for the appellant
Although the argument before the learned Magistrate included submissions as to financial hardship, on the hearing of the appeal counsel for the appellant did not pursue that aspect of the matter. However he submitted that the learned Magistrate had fallen into error in making the impounding order as she had given insufficient weight to the severe physical hardship imposed upon the appellant as a result of it. In particular, the learned Magistrate had failed to consider the provisions of s 4 (2) Impounding Act, which provides that:
… 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.
Although s 4(1) Impounding Act provides that the imposition of an impounding order is in addition to any other penalty that may be imposed on a person in relation to a prescribed offence, counsel for the appellant submitted that the additional penalty permitted by s 4(1) could only be imposed after consideration had been given to the substantive penalty and the potential effect of the substantive penalty on a defendant’s circumstances.
Counsel for the appellant submitted that in this case, when considering the question of severe physical hardship, the Magistrate was obliged to take into account that she had already imposed an extensive licence disqualification upon the appellant, as well as not insignificant monetary penalties for his conduct. The effect of the licence disqualification was that the appellant was required over a long period of time to seek alternative means of attending to his employment and personal commitments. He lived in an area where there was limited public transport, which meant that he was dependent on others to transport him.
On the hearing of the appeal counsel for the appellant elaborated on some of these matters which included the fact that the appellant was a single man who lived alone and who did not have access to any other vehicle. The licence disqualification meant that the appellant was dependent on the generosity of friends to drive him. The impounding order imposed an additional burden as it also required others to provide the appellant with a means of transport as he was deprived of the ability to provide his own vehicle to those assisting him. That was a severe imposition as the appellant was precluded from the most practical way of meeting his commitments. That amounted to severe physical hardship which enlivened the discretion provided by s 13 of the Act and permitted the Court to decline to make the order sought by the prosecution.
Submissions of counsel for the respondent
However, counsel for the respondent submitted that the learned Magistrate had appropriately considered the interaction between s 4(2) and ss 12 and 13 as she had accepted that a loss of licence, together with the impounding of the appellant’s vehicle would create a difficult situation for the appellant. Counsel for the respondent submitted that the appellant had failed to satisfy the high threshold of severe financial or physical hardship, required for the exercise of discretion under s 13.
Conclusion
The phrase “severe physical or financial hardship” is not defined in the Impounding Act nor in the Regulations but it is clear that if a defendant is to avail him/herself of the provisions of s 13, he/she is required to establish something more than ordinary hardship.
In Taylor v Attorney-General (SA)[3] Debelle J, when discussing the forfeiture of property used in connection with the commission of drug offences, said:
The fact that hardship will occur is not a factor which, standing alone, will militate against an order of forfeiture. It is necessary to bear in mind that it is the intention of the Act that the forfeiture of property will cause a measure of hardship. … So, when considering the ground of hardship, something more than ordinary hardship in consequence of the operation of the order for forfeiture is meant; otherwise the purpose of the legislation would be frustrated.
[3] (1991) 55 SASR 462 at 473-474.
In my opinion those comments are of equal application to the present case.
The fact that s 4(1) empowers a court to make an impounding order in addition to any other penalty indicates an intention by Parliament to create a measure of hardship over and above the prescribed penalties to act as a deterrent to those, such as the appellant, who are repeat offenders in an endeavour to bring home to them the seriousness of their actions. As the learned Magistrate said in her remarks:
The two offences that have led to this application are both offences that involve alcohol drunk in considerable quantity. These are offences that are serious offences. They are offences that can be dangerous to the community at large. Parliament has made it clear that impounding orders are part of the process by which messages relating to repeat offending ought to be brought home and in this case there is really very little mitigating the circumstances at all.
Although the learned Magistrate did not specifically refer to s 4(2) in the course of her remarks, it must be remembered that these were ex tempore remarks made in the course of what undoubtedly was a busy list. The fact that the learned Magistrate did not refer to the section does not mean that she overlooked it. Section 4(1) permitted the Magistrate to make an impounding order in addition to the penalties she imposed for the driving offences committed by the appellant. The fact that the Magistrate took a merciful approach to penalty with respect to the substantive offences by imposing what effectively was the minimum penalty for the PCA offence and modest fine for the MVA offence in my opinion indicates that she was mindful of the provisions of s 4(2).
In this case, I am satisfied that the effect of the impounding order will be to create a hardship for the appellant but I am not persuaded that it is such as to bring the appellant within the provisions of s 13(1)(a).
No error has been demonstrated in the approach taken by the learned Magistrate. The appeal is therefore dismissed. As a result of the dismissal of the appeal the appellant remains subject to an order that his vehicle be impounded for a period of two months. Subject to any further submissions as to the date upon which that order should take effect, I direct that the impounding order take effect after seven days of the delivery of this judgment.
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