Gajewski v Commissioner for Consumer Affairs - [2013] SASC 32

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GAJEWSKI v COMMISSIONER FOR CONSUMER AFFAIRS
[2013] SASC 32
Judgment of The Honourable Justice Stanley
18 March 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - CONVICTIONS
Appeal against sentence and conviction - the appellant was convicted of one count of contravening s 6(1) of the Building Work Contractors Act 1995 (SA) - appellant carried on a business as a building work contractor without being licenced to do so.
Appellant submits that he was not afforded a fair hearing or natural justice due to the course that the matter took at the pre-trial stage, in that the appellant had tried to plead guilty at a number of pre-trial conferences and that he was coerced into changing his plea to not guilty - at the hearing of the appeal, the appellant also argued that he held a genuine belief that he was operating under the building licence of another licenced builder, and the defence under s 54 of the Building Work Contractors Act was available.
Held: appeal against conviction dismissed - there was no denial of natural justice and the appellant received a fair hearing - at the beginning of trial, the implications of pleading guilty were fully explained to the appellant, he was not coerced into changing his plea - further, the learned magistrate was right to find that, on the evidence, the defence under s 54 was not available to the appellant.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appellant seeks a remission of the fine and costs payable to the prosecution, reduction of the order for compensation, substitution of community service for any pecuniary payment and permission to open his case against the victim and/or staggered payments – the appellant cites the ground of hardship and submits that the magistrate misconstrued his financial situation.
Held: appeal against sentence dismissed – remission of sentence, applicable only to imprisonment, has been abolished in South Australia – there is no basis to reduce the fine – the fine and the order for compensation were appropriate – the learned magistrate gave proper consideration to the appellant’s financial situation when imposing sentence – the learned magistrate’s approach does not demonstrate any error.
The Court has discretion to make an order converting a pecuniary sum into an order for community service, however this discretion is exercisable only after the matter has been referred to the Court for reconsideration by the Registrar – this has not occurred.
Staggered payments must be arranged through the Fines Payment Unit – this is not a matter for the Court.
Building Work Contractors Act 1995 (SA) s 6, s 9, s 54; Fair Trading Act 1987 (SA); Supreme Court Civil Rules 2006 (SA) r 281(1); Criminal Law (Sentencing) Act 1988 (SA) s 10, s 13, s 53, , s 53(1), s 70I; Statutes Amendment (Truth in Sentencing) Act 1994 (SA); Victims of Crime Act 2001 (SA) s 32; Victims of Crime (Fund and Levy) Regulations 2003 (SA); Magistrates Court Act 1991 (SA), referred to.
Maxwell v The Queen (1995) 184 CLR 501, applied.
Markarian v The Queen (2005) 228 CLR 357; Dinsdale v The Queen (2000) 202 CLR 321, discussed.
Tazroo v Police [2002] SASC 155; R v Olbrich (1999) 199 CLR 270; R v Haydon (2001) 80 SASR 560; R v Spong (2008) 100 SASR 55, considered.

GAJEWSKI v COMMISSIONER FOR CONSUMER AFFAIRS
[2013] SASC 32
STANLEY J:
Magistrates Appeal
Introduction

This is an appeal against conviction and sentence.
Following a lengthy trial the appellant was convicted of one count of contravening s 6(1)(a) of the Building Work Contractors Act 1995 (SA) (the Act) on 26 August 2011. He was acquitted of one count of contravening s 58(a) and s 75(1) of the Fair Trading Act 1987 (SA). The conviction was for carrying on business as a building work contractor without being licensed to do so.
After a disputed facts hearing, the appellant was sentenced on 9 December 2011. The learned magistrate ordered the appellant to pay compensation to the victim of the offence in the sum of $20,000. The appellant was fined $6,000, and ordered to pay court fees of $177, a victims of crime levy of $160, and the prosecution’s costs fixed in the sum of $11,000.
The disputed facts hearing concerned whether or not the work performed by the appellant was defective. The learned magistrate held it was. She considered this was a relevant consideration on sentencing, for reasons given on 6 September 2011.
The appeal
By notice filed on 4 October 2012 the appellant seeks to appeal the sentence imposed by the learned magistrate on 9 December 2011.
The appeal is substantially out of time. Pursuant to 6SCR 281(1) the appellant had 21 days from the date of the decision of the court imposing sentence, in which to appeal. The notice of appeal is over nine months out of time. The respondent does not oppose an extension of time in which to bring the appeal. The appellant submitted an extension of time should be granted because he was ignorant of the right of appeal, let alone the need to file the appeal notice within any time, and during the relevant period was suffering from depression. In the circumstances, I grant an extension of time to 4 October 2012.
Relevantly, the appellant seeks a remission of the fine and the costs payable to the prosecution, reduction of the order for compensation, substitution of community service for any pecuniary payment, permission to open his case against the victim and/or staggered payments.
In addition, he seeks an order for the reduction of government wastage. Whatever this is intended to encompass, it is beyond the power of the Court to order. I disregard it.
On the hearing of the appeal I admitted into evidence, on the application of the Commissioner, an affidavit of Julie-Anne Lake sworn 6 December 2012, which exhibited certain documents that were before the learned magistrate relevant to sentence. I refused to admit an affidavit of Michael Dragan Opacic dated 11 December 2012 which exhibited a file from the Holden Hill Magistrates Court of proceedings instituted in that court by the appellant subsequent to the decision under appeal. Those proceedings were brought by the appellant pursuant to s 70I of the Criminal Law (Sentencing) Act 1988 (SA).
At the hearing, the appellant indicated that he also sought to appeal the conviction. It was indicated to the appellant that if he wished to pursue an appeal against the conviction as well as the appeal against sentence, he would need to apply to the Court to amend his notice of appeal. I gave him permission to apply by letter. On 21 December 2012, the Court received such letter from the appellant applying to vary his notice of appeal so as to appeal his conviction as well as his sentence.
The appellant appeals his conviction on the grounds that he was not afforded a fair hearing or natural justice.
The appellant is unrepresented. In filing the original notice of appeal, he did not understand the difference between appealing a conviction and appealing a sentence. At the relevant time, he was suffering depression. In the circumstances, I grant permission to amend the notice of appeal. Further, I extend the time to amend the notice of appeal. I will deal with the appeal against conviction and the appeal against sentence separately.
Background
In 2008 the appellant conducted a business under the name of Eco Stone Homes. He entered into a contract with Ms Barbara Ewens, to perform building work on a heritage property owned by Ms Ewens at Willoughby Road, Penneshaw. That work consisted of the building of an extension to the existing heritage building. The extension was described as ‘a grand library’. In addition, he undertook work on the construction of a garden wall that was part of the creation of a Tuscan garden adjoining the heritage building.
Ms Ewens paid the appellant $34,900 for the work performed.
The learned magistrate found that the construction of the extension was “building work” within the meaning of the Act. On the other hand, the learned magistrate found that the construction of the garden wall was not “building work” within the meaning of the Act. The appellant undertook the building work between late September or early October 2008 and January 2009. The work came to an end when Ms Ewens ordered the appellant to leave the property, having become completely disillusioned with him.
At no time did the appellant hold the requisite licence under the Act.
The learned magistrate rejected the appellant’s various explanations as to why he alleged he held a genuine belief that he did not require a licence, and accordingly, she found he was not afforded a defence pursuant to s 54 of the Act on the basis that the offence was not committed intentionally and did not result from any failure on his part to take reasonable care to avoid committing the offence. The learned magistrate found the appellant understood clearly the obligation he was under to be licensed.
The learned magistrate ordered the appellant to pay the maximum amount of compensation allowed pursuant to s 53 of the Criminal Law (Sentencing) Act 1988 (SA), namely, $20,000. She did so on the basis she was satisfied that the costs incurred by Ms Ewens as a result of the defective work undertaken by the appellant in contravention of the Act, was a figure in excess of $20,000 for the work on the extension, excluding the work in respect of the retaining wall on the Tuscan garden. Those sums comprised the amounts paid for the work, namely, a sum of $27,898, together with additional sums paid to another contractor to rectify the appearance of the extension in an amount of $3,049.75. The order was made on the basis that the only complete remedy to rectifying the defects in the appellant’s building work is to demolish the extension and rebuild it completely.
Appeal against conviction
The appellant appeals his conviction. In his outline and in his oral submissions it is clear that the appellant does not fully understand the distinction between appealing a conviction and appealing a sentence. He conflates grounds relevant to sentence with grounds relevant to conviction. I must do the best I can to dissect his submissions and address the issues which arise relating to conviction. These grounds are not easy to understand. The appellant expresses them as being a denial of natural justice and a denial of a right to a fair hearing. Any points raised that concern the appeal against sentence will be considered later in these reasons.
Natural justice and a fair hearing
The appellant submits that he was denied a fair hearing and natural justice in the course of the trial in the Magistrates Court. It is not easy to understand the basis of this submission. The appellant has not set out any specific grounds of appeal. I must do the best I can in addressing the argument as the appellant attempted to develop it.
There is no issue that the appellant operated Eco Stone Homes at the relevant time without the requisite licence. Curiously, part of the appellant’s attack on his conviction is a complaint that he was induced to change his plea from guilty to not guilty. The other aspects of the appeal against conviction are a complaint that the learned magistrate erred in rejecting a defence based on s 54 of the Act, complaints about exclusion of evidence and a complaint concerning what is alleged to have been a campaign of humiliation of the appellant by Ms Ewens.
Not guilty plea
Accordingly, it is necessary to consider the course this matter took in being called on for trial. The matter first came before the Magistrates Court on 5 March 2010. The appellant did not appear at this hearing and it was adjourned to 28 May 2010. At the 28 May 2010 hearing, the appellant appeared unrepresented. The matter was adjourned to 30 July 2010. At the 30 July 2010 hearing, the appellant had obtained legal representation. No plea was entered at this hearing. The matter was adjourned to 23 September 2010, and the magistrate ordered that the file cover be amended. At the 23 September 2010 hearing, leave was granted for the respondent to amend the complaint, the appellant at this stage was handed a copy of the complaint containing the relevant amendments. Again no plea was entered and the matter was adjourned to 23 November 2010. At the 23 November 2010 hearing, the appellant was again unrepresented. From this point on, the appellant appeared unrepresented. It appears at this stage, the appellant pleaded not guilty to count 2, but no plea was entered for count 1. The matter was adjourned to 11 January 2011 for a pre-trial conference. At the pre-trial conference on 11 January 2011, no plea was entered. The matter was adjourned to 22 February 2011 for the prosecution to consider documents that had been produced by the appellant for the first time. At the pre-trial conference on 22 February 2011, no plea was entered. The conference was adjourned to 17 March 2011 for the parties to conduct negotiations concerning the calling of witnesses and tendering of statements. At the pre-trial conference on 17 March 2011, no plea was entered. The conference was adjourned to 5 May 2011. The appellant was advised at this stage that if the matter proceeded to trial, the costs would be considerable. At the pre-trial conference on 5 May 2011, no plea was entered and the matter was set down for trial on 7 July 2011. The trial commenced on 7 July 2011. From the endorsements on the file from the first date of trial, it appears that the appellant intimated a guilty plea to count 1. On review of the transcript, the appellant asserted that he had wished to plead guilty, but wanted a chance to explain his conduct. At this stage, the learned magistrate informed him that the explanation of his conduct may amount to a defence to his contravention of the Act. After considering the effect of a guilty plea, the appellant entered a plea of not guilty.
This case does not involve a formal change of plea. At no stage had the appellant formally pleaded guilty. He had merely made intimations that he might plead guilty. At the commencement of trial however, the appellant entered a plea of not guilty, despite his intimations. This was the first time a formal plea had been entered by the appellant and accepted by the court.
The law relating to the acceptance of a plea of guilt is discussed by Dawson and McHugh JJ in Maxwell v The Queen:[1]
The plea of guilty must…be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered … But otherwise an accused may insist upon pleading guilty.
(footnotes omitted)
[1] (1995) 184 CLR 501 at 511.
On reading the trial transcript, it is clear that had the appellant entered a plea of guilty, it would not have been an unequivocal plea, nor would it have been a true admission of guilt. It would have been a plea of guilt on the condition that the appellant be afforded a chance to explain his conduct, and why he genuinely believed he was operating under an appropriate licence. The learned magistrate, quite rightly, explained to the appellant that as he may have a genuine defence, a plea of not guilty may be appropriate. It would have been inappropriate for the learned magistrate to have accepted a plea of guilt.
In his letter applying to amend the notice of appeal, the appellant alleges that he was coerced into changing his plea to not guilty by counsel for the respondent, just prior to the trial starting. I have reviewed the transcript from the Magistrates Court. The appellant was not coerced into changing his plea. The magistrate fully explained to him the implications of changing his plea. Counsel for the respondent was merely explaining to the magistrate the history of the matter, and why the matter had been referred for trial.
Further, I am satisfied that the learned magistrate properly explained to the appellant what the consequences would be should he plead either guilty or not guilty, and that the appellant indeed, entered a plea of not guilty with the full understanding that this would result in a trial.
In any event, there is an obvious perversity in a ground of appeal against conviction which complains that the appellant was coerced into changing his plea from guilty to not guilty.
Section 54 of the Building Work Contractors Act 1995 (SA)
At the hearing of the appeal, the appellant argued that he held a genuine belief that he was operating under the building licence of his partner at Eco Stone Homes, Mr Laurence Slatter or the builder’s licence held by Mr Ron Handley, the builder engaged by Ms Ewens to undertake the building work for the extension apart from the stone work.
Section 54 of the Act provides a general defence to a charge of contravening the Act:
It is a defence to a charge of an offence against this Act if the defendant proves that the offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.
From November 2005, the appellant operated the business of Eco Stone Homes in partnership with Mr Slatter. Mr Slatter, at the relevant time, held both a building work contractors and supervisors licence. Section 9 of the Act provides:
9—Entitlement to be licensed
(1)     A natural person is entitled to be granted a licence if the person—
(a) has—
(i) the qualifications and experience required by regulation for the kind of work authorised by the licence; or
(ii) subject to the regulations, qualifications and experience that the Commissioner considers appropriate having regard to the kind of work authorised by the licence; and
(b) is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; and
(c) is not, and has not been, during the period of 10 years preceding the application for the licence, an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth or subject to a composition or deed or scheme of arrangement with or for the benefit of creditors; and
(d) has not been, during the period of 10 years preceding the application for the licence, a director of a body corporate wound up for the benefit of creditors—
(i) when the body corporate was being so wound up; or
(ii) within the period of 12 months preceding the commencement of the winding up; and
(e) has sufficient business knowledge and experience and financial resources for the purpose of properly carrying on the business authorised by the licence; and
(f) is a fit and proper person to be the holder of a licence.
(2)     A body corporate is entitled to be granted a licence if—
(a) the body corporate—
(i) is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; and
(ii) is not being wound up and is not under official management or in receivership; and
(b)no director of the body corporate—
(i)is suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth;
or
(ii) is, or has been, during the period of 10 years preceding the application for the licence, an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth or subject to a composition or deed or scheme of arrangement with or for the benefit of creditors; or
(iii) has been, during the period of 10 years preceding the application for the licence, a director of a body corporate wound up for the benefit of creditors—
(A) when the body corporate was being so wound up; or
(B)within the period of 12 months preceding the commencement of the winding up; and
(c) the directors of the body corporate together have sufficient business knowledge and experience for the purpose of properly directing the business authorised by the licence; and
(d) the body corporate has sufficient financial resources for the purpose of properly carrying on the business authorised by the licence; and
(e) each director of the body corporate is a fit and proper person to be the director of a body corporate that is the holder of a licence.
(3)     If, on an application for a licence, the Commissioner—
(a) is not satisfied that the applicant meets requirements as to qualifications, business knowledge, experience or financial resources; but
(b) is satisfied that the applicant proposes to carry on business as a building work contractor in partnership with a person who does meet those requirements, the Commissioner may, subject to the other provisions of this section, grant a licence to the applicant subject to the condition that the applicant not carry on business under the licence except in partnership with that person or some other person approved by the Commissioner.

Accordingly, the appellant was required personally to hold a licence during this period.
The learned magistrate turned to the question of whether the appellant could make out a defence pursuant to s 54 given his contention that the performance of work by him without a licence was a result of an honest mistake or oversight. The learned magistrate rejected any defence pursuant to s 54 on the basis that at the relevant time the appellant understood both the need for him personally to be licensed and that he could not work under Mr Slatter’s or Mr Handley’s licences.
The appellant has failed to demonstrate any error on the part of the learned magistrate. The magistrate conducted a thorough consideration of whether the defence under s 54 of the Act was available to the appellant and concluded it was not.[2] The magistrate found that the appellant had demonstrated knowledge that some sort of licence was required to build with stone.[3] The learned magistrate found that the partnership between Mr Slatter and the appellant dissolved in April 2008, and in any event, Mr Slatter’s licence expired in August of 2008.[4] The learned magistrate made findings that in September 2008, the appellant could have had no expectation that the partnership between him and Mr Slatter was intact. The appellant claimed that he had a conversation with Mr Handley where he told him that Mr Slatter had not shown up, and that he intended to work under Mr Handley’s licence, which Mr Handley assented to by his silence. Mr Handley rejected the suggestion that this had occurred. As far as he was aware, Eco Stone Homes had a building licence and there would have been no reason for such a request. Indeed, he said he had been led to believe by the appellant that the appellant was a qualified stonemason. If the suggestion had been made, he would have rejected it, as it would have jeopardised his licence.
[2]    Paragraph 94 of reasons.
[3]    Paragraph 76 of reasons.
[4]    Paragraph 77 of reasons.
The appeal is by way of rehearing. This Court, while making up its own mind, must give due weight to the advantage enjoyed by the learned magistrate in seeing and hearing the witnesses, and to the resulting findings which depend to a greater or lesser extent on the presentation and demeanour of the witness.[5]
[5] Tazroo v Police [2002] SASC 155 at [18]-[19].
The learned magistrate heard evidence from both Mr Slatter and Mr Handley. The learned magistrate accepted the evidence of Mr Handley and rejected the evidence of the appellant. The learned magistrate was satisfied there was no basis for the appellant to believe that he was working under the licence of either of them. She found Mr Handley to be an impressive witness. In addition, she observed that Mr Slatter was prepared to concede certain things he could not remember and was not trying to give evidence in favour of the prosecution, he showed little animosity towards the appellant, and had no reason to try in his evidence to minimise any fault on his part, as he had very little to do with the matter the subject of the charge. By contrast, the learned magistrate found the appellant had a poor recollection of events, his evidence was often a reconstruction rather than a recollection of what had occurred, and he frequently avoided answering questions directly and gave answers which tended to deflect attention from the question asked. The learned magistrate also found the appellant had a tendency to launch personal attacks on witnesses and blame others rather than accepting responsibility for his actions. A consideration of the transcript supports these findings.
The learned magistrate delivered lengthy and considered reasons for judgment that set out the basis upon which she was satisfied that the appellant had contravened s 6 of the Act, and that he was not working, nor was he able to work, under the licence of another person. I agree with those reasons. The learned magistrate was right to find, on the evidence, that the defence under s 54 of the Act was not available to the appellant.
Problems with evidence
The appellant complains that there were problems with evidence in various forms at the trial. He does not specify the evidence to which he refers other than to refer to “some evidence not accepted by the magistrate or allowed to be included”. The appellant does not provide any particularity with respect to this complaint. Throughout the course of the trial, however, there were instances where the appellant was not permitted to place before the court material that the court held was irrelevant, did not constitute evidence, or was not in an admissible form, such as irrelevant photographs, a work diary and hearsay testimony. The conduct of the trial in accordance with the law of evidence does not demonstrate any appealable error.
Campaign of humiliation against the appellant by Ms Ewens
The appellant complains that there was some campaign of humiliation against him by Ms Ewens. It is not clear to what it is the appellant is referring. The appellant submits Ms Ewens remarked to him that “all men are retarded”. He attributed this to her experience at failed relationships. I consider this complaint irrelevant to any issue on appeal, except perhaps credit. There was no specific evidence before the court on this topic. The learned magistrate, in her reasons for judgment, made adverse comment about the tendency of the appellant to attempt to cast aspersions on Ms Ewens by volunteering irrelevant information about her sex life. The learned magistrate, having heard the evidence of Ms Ewens, accepted her as a witness of truth. The learned magistrate did not find the appellant to be an impressive witness. The learned magistrate had the advantage of hearing the appellant, Ms Ewens and the other witnesses give evidence. No error of fact or law has been demonstrated by the appellant. This is sufficient to dispose of the point.
In conclusion, the appeal against conviction fails. I am not persuaded the appellant was wrongly convicted.
Appeal against sentence
As I have found that the appeal against conviction must fail, it is necessary to deal with the appeal against sentence.
The approach of an appellate court
The circumstances in which an appellate court may interfere with a sentence are well known.
In Markarian v The Queen[6] Gleeson CJ, Gummow, Hayne and Callinan JJ described those circumstances as follows:[7]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
(footnotes omitted)
[6] (2005) 228 CLR 357.
[7] (2005) 228 CLR 357 at 370-371 [25].
This approach was further explained in Dinsdale v The Queen[8] by Kirby J, who said:[9]
As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly. In appellate review of sentencing, it will commonly be the case that the appellate court’s authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried.
(footnotes omitted)
[8] (2000) 202 CLR 321.
[9] (2000) 202 CLR 321 at 340 [59].
The appellant’s submission
The appellant’s only ground of appeal is hardship. I will address his submission in the context of addressing each of the orders he seeks.
Remission of the fine (plus fees and levy) and the order for compensation
Remission of sentence, applicable only to imprisonment, has been abolished in South Australia.[10] Remission of a fine, in the sense of release from the obligation to pay or forgiveness of the debt, is not a power conferred on the Court. The Court is empowered on appeal to reduce a fine imposed, but only if proper reasons exist for so doing, in accordance with the well established principles set out above.
[10] Statutes Amendment (Truth in Sentencing) Act 1994 (SA) s 14.
The fine imposed was $6,000. The maximum penalty for an offence pursuant to s 6(1)(a) of the Act is a fine of $20,000.
The Court will only interfere with the sentencing discretion exercised by the learned magistrate if it is satisfied that the fine imposed was manifestly excessive in all the circumstances of the case or was otherwise infected by an error in the approach the court took to fixing sentence. It is insufficient that the Court, if it had been exercising the sentencing discretion at first instance, would have imposed a fine in a different amount.
I do not consider the fine imposed was manifestly excessive. I do not consider it to be excessive whether viewed in isolation or, as I think is appropriate, in conjunction with the order for compensation. Neither do I consider that the approach to fixing sentence demonstrates any error of principle on the part of the learned magistrate.
The learned magistrate recognised that in fixing an appropriate sentence, considerations of general and personal deterrence were important, given the Act is regulatory legislation. She took into account the appellant’s personal circumstances including his health, and that this was his first offence. She also had regard to what she knew of the appellant’s financial position. Importantly, she also had regard to the fact that she proposed to make an order for compensation in the sum of $20,000. She considered the operation of s 13 of the Criminal Law (Sentencing) Act.
Even when viewed in conjunction with the order made for compensation, I do not consider the total penalty manifestly excessive. The fine and the order for compensation must be viewed in the context of the funds the appellant had on deposit and the amount he had been paid for the work. As I have said, the appellant was paid $34,900. Of this, $27,898 was attributable to work that the learned magistrate considered constituted “building work” within the meaning of the Act. Allowing for the cost of the stone, which the evidence showed was an amount of $6,700, and a few thousand dollars for other materials, the appellant had been paid in the vicinity of $20,000 for the work which was the basis of his offending. In the circumstances, I do not consider the penalty, when viewed in its totally, could be considered manifestly excessive.
In my view, a fine was appropriate.
A fine of $6,000 for a first offence of this nature is within the range of sentences I consider appropriate for a first offence of this character.
The offending was deliberate. The learned magistrate found the appellant well understood his obligation to be licensed. The learned magistrate found that the nature of the offence was aggravated because of the defective nature of the building work performed. Those findings were that:
1.An appropriate damp-proof course was not installed as required by the Building Code of Australia and sound stonemasonry practice;
2.There were defects in the method of building the stone wall and that there were perpendicular joints with no mortar in areas where there was not a full bed of mortar or standard bed of mortar. There were also inconsistent depths in the mortar joints and they were not flush as required by the appropriate building standards;
3.The newly constructed stone wall was not tied to the existing frame of the house with an appropriate control joint;
4.The walls were out of plumb on the interior and exterior of the building; and
5.The interior rendering was of a poor standard.
These were all relevant considerations. None of the matters considered by the learned magistrate, in fixing sentence, were irrelevant considerations.
Specifically, I am satisfied that the finding that the building work was defective, is a relevant aggravating factor for the purposes of sentencing.
I was not directed to any superior court authority on this point. I commence with a consideration of the terms of s 10 of the Criminal Law (Sentencing) Act which obliges a sentencing court to take into account, where relevant, certain prescribed matters.
The first of those matters is the “circumstances of the offence”.[11] “The circumstances of the offence” encompasses the factual basis of the offence, that is to say, the essential elements of the offence, as well as the specific conduct of the offender.[12] The essential elements of the offence are the basis for the finding of guilt, but additionally, for the purposes of imposing penalty, the court must have regard to what it is the offender actually did. The offender’s conduct may constitute circumstances of aggravation which warrant a more substantial penalty being imposed than would otherwise be indicated by the objective facts.
[11] Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(a).
[12] R v Olbrich (1999) 199 CLR 270 at 274; R v Haydon (2001) 80 SASR 560 at 563 and 566; R v Spong (2008) 100 SASR 55 at 64.
In considering sentence, the court should also consider any injury, loss or damage resulting from the offence.[13]
[13] Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(e).
On the learned magistrate’s findings, the victim, Ms Ewens, suffered loss as a result of the building work performed by the appellant in contravention of the obligation to be licensed. The appellant has failed to demonstrate any error with respect to those findings. In the circumstances, the victim’s loss was a relevant consideration in sentencing.
I would not interfere with the fine imposed.
Neither would I interfere with the order for compensation.
Section 53(1) of the Criminal Law (Sentencing) Act confers upon a sentencing court a discretion to order an offender to pay compensation for injury, loss or damage resulting from the offence.
In my view, circumstances of aggravation can be as relevant to the consideration of whether to order compensation as they are to the imposition of penalty. The importance of compensation as part of the sentencing process is underlined by the provisions in s 62(2) of the Criminal Law (Sentencing) Act, which prescribes an order of priority in respect to pecuniary sums paid in the enforcement process. Compensation ranks second.
The discretion to order compensation is to be exercised judicially, and subject to the express limitations imposed by the Act.[14] It is not a figure to be plucked from the air, but one which is adequately justified by relevant and admissible evidence.[15]
[14] Criminal Law (Sentencing) Act 1988 (SA) s 153(5).
[15] Vougamalis v Nixon (1991) 56 SASR 574 at 579.
The Act is beneficial regulatory legislation. Its purpose is the protection of consumers. Section 6, in prohibiting the performance of building work by unlicensed builders, is intended to protect consumers from the risk of defective work. If work is performed in contravention of the obligation to be licensed, and it transpires that the work is defective, I consider that is an aggravating circumstance of the offence. In my view, the learned magistrate was correct in coming to the same conclusion.
On appeal, the appellant accepted that he was liable for compensation in the sum of $3,049.75, representing the expenditure by Ms Ewens to rectify the appearance of the extension. However, he complained that the order for compensation in the maximum amount permissible pursuant to s 53 of $20,000 was excessive given that the value of the heritage building had been enhanced by the extension he had constructed. I do not accept this submission. The unequivocal finding of the learned magistrate is that the only way in which the defective building effectively can be rectified is to pull down the extension and start again. In the circumstances, the victim, Ms Ewens, has lost the money she paid for this work. The precise amount cannot be identified because of two matters. First, the evidence does not disclose precisely how much was spent by the appellant on some buildings materials. Secondly, it is not possible to say now whether any of the stone could be reused if the extension was rebuilt. Nonetheless, the sum lost would be in the vicinity of $20,000. That is, in addition to the $3,049.75, which the appellant acknowledges rightfully represents compensation to which Ms Ewens is entitled. In addition, Ms Ewens faces either the cost of rebuilding or the loss she will suffer on the sale price of the heritage building as it now stands if she were to sell in circumstances where she would be obliged to disclose the defects resulting from the appellant’s work.
The appellant also complained that the learned magistrate fell into error in assessing his financial circumstances in the process of weighing whether it was appropriate to impose a fine or order compensation. He submitted she had erred by confusing his gross and net income. I have considered the learned magistrate’s reasons. No such error is apparent.
The victims of crime levy was imposed pursuant to s 32 of the Victims of Crime Act 2001 (SA). The amount of the levy is set by regulations.[16] Section 32(7)(b) provides that if the levy is payable by a person convicted of an offence, the Court may not, at the time of convicting or sentencing the defendant for the offence, reduce the levy or exonerate the defendant from liability to pay it.
[16] Victims of Crime (Fund and Levy) Regulations 2003 Regulation 5(2) and Schedule 1.
Section 50 of the Magistrates Court Act 1991 (SA) provides that the Governor may, by regulation, prescribe and provide for the payment of fees with respect to proceedings in the Magistrates Court. Section 50(2) provides the Court with the discretion to reduce or remit a fee payable on account of the poverty of a party or for any other proper reason. This Court has a discretion to reduce the amount of court fees the appellant was ordered to pay. I would not do so, however. The learned magistrate gave careful consideration to the financial circumstances of the appellant for the purposes of sentencing. On the evidence, she was not satisfied that he was impoverished. He had funds in his bank accounts in excess of $50,000. I do not consider the learned magistrate’s approach demonstrates any error. I am not satisfied that there is any other proper reason to reduce the order in relation to payment of fees.
Remission of the costs payable to the prosecution
The learned magistrate awarded the prosecution costs of $11,000 after a reduction in the amount to which she concluded the prosecution was entitled on the Magistrates Court’s costs scale, namely, $13,535. In assessing this figure, the learned magistrate made an appropriate allowance for the time and resources devoted to the unsuccessful prosecution under the Fair Trading Act 1987 (SA). No error has been demonstrated in the learned magistrate’s approach on this issue. On the contrary, given the evidence of the appellant’s financial circumstances, he could be considered fortunate to have had an order made in his favour pursuant to s 13 of the Criminal Law (Sentencing) Act reducing the amount of costs payable by the sum of $2,535.
I do not accept the submission of the appellant that he should not be liable for costs on the basis that he indicated on a number of occasions he was prepared to plead guilty. The basis upon which he was prepared to do so involved an allegation that necessarily would have invoked the protection of s 54 of the Act. It was not open to the learned magistrate to accept a plea of guilty on that basis. In the circumstances, the matter had to go to trial.
Substitution of community service

In the alternative, the appellant seeks an order that the pecuniary sums be converted into an order for community service, namely, that he provide music tuition for Aboriginal youth through the relevant government department which provides services for young Aboriginal offenders.
Pursuant to s 70I(3)(a)(iv) of the Criminal Law (Sentencing) Act a court has the discretion to make an order converting a pecuniary sum into an order for community service. This discretion is exercisable, however, only after the matter has been referred to the Court for reconsideration by the Registrar who has investigated the financial means of the person obliged to pay the pecuniary sum, and is satisfied that the person does not have the means to satisfy the pecuniary sum without him or his dependents suffering hardship.
The remittal of the matter to the court by the Registrar is a necessary precondition for the exercise of the court’s discretion. As that has not occurred, this Court has no jurisdiction to convert the orders for payment of a pecuniary sum into community service.
Permission to open case against the victim
By his notice of appeal the appellant seeks permission “to open my court case to recover money owed by plaintiff to me”. I understood from the appellant in the course of him putting submissions on the appeal that this ground refers to his wish to pursue a civil action against Ms Ewens for money he alleges is owed to him for work he did for Ms Ewens. This is not a matter that can be pursued by way of an appeal either against conviction or sentence for a contravention of s 6 of the Act.
Staggered payments
The appellant seeks an order for “staggered payments”.
Pursuant to s 64(1) and (2) of the Criminal Law (Sentencing) Act a person liable to pay a pecuniary sum may enter into a written arrangement with an authorised offer in the Courts Administration Authority for payment of the sum by instalments, for an extension of time in which to pay or for payment by or through some other person or agency (for example, deductions from a bank account or wages). If the appellant wishes to raise any issue of hardship he should contact the Fines Payment Unit to discuss these options. It is not a matter for the Court to order on this appeal.
The appellant has not satisfied me that there was an appealable error made by the learned magistrate in sentencing.
Conclusion
I would dismiss both the appeal against conviction and the appeal against sentence.