Gajewski v Commissioner for Consumer Affairs

Case [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

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Gajewski v Commissioner for Consumer Affairs [2013] SASC 32
Case
[2013] SASC 32
Decision Date

CaseChat Overview and Summary

The appellant in this case was convicted of contravening s 6(1) of the Building Work Contractors Act 1995 (SA) by carrying on a business as a building work contractor without holding the requisite licence. The appellant appealed both the conviction and the sentence. The appeal against conviction centred around claims of unfairness in the pre-trial process and the availability of a defence under s 54 of the Act. The appeal against sentence sought a remission of the fine and costs, reduction of the compensation order, substitution of community service for pecuniary payments, and permission for staggered payments, citing hardship as the ground. The Supreme Court examined the appeal against conviction first, focusing on whether the appellant was denied natural justice and if he received a fair hearing. The court found that the appellant was fully informed of the implications of pleading guilty and was not coerced into changing his plea. The court upheld the magistrate's finding that the defence under s 54 was not available to the appellant.

The appeal against sentence was considered next, examining if there was any error in the sentencing process. The court noted that remission of sentence, applicable only to imprisonment, has been abolished in South Australia. There was no basis to reduce the fine, and the fine and compensation order were deemed appropriate. The court found the magistrate gave proper consideration to the appellant's financial situation, and the approach did not demonstrate any error. The court also highlighted that the discretion to convert a pecuniary sum into an order for community service is only exercisable after the matter has been referred to the Court for reconsideration by the Registrar, which had not occurred. Staggered payments must be arranged through the Fines Payment Unit, not a matter for the Court.

Orders

Orders of the court

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.

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.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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].

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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