Goodchild v Police No. Scgrg-98-1155 Judgment No. S6905

[1998] SASC 6905

GOODCHILD v POLICE
[1998] SASC 6905

Magistrates Appeals

Wicks J (Ex tempore)

1. This is an appeal against a sentence imposed by a stipendiary magistrate in the Magistrates’ Court sitting at Holden Hill on 29 July 1998. 

2. At the hearing the appellant pleaded guilty to one count of intentional property damage contrary to s85(3) of the Criminal Law Consolidation Act 1935.

3. On 29 January 1998 the appellant intentionally damaged a wall, the property of Modbury Hospital, such damage amounting to not more than $2,000. 

4. For that offence the appellant was convicted without penalty and ordered to pay court costs of $73, criminal injuries compensation levy of $28, prosecution administration fees of $16, and compensation of $700.  He was given 14 months to pay these amounts.  The maximum penalty for this offence is imprisonment for two years. 

5. The ground of appeal was that the learned sentencing Magistrate did not properly take into account the evidence as to the appellant’s ability to comply with the order for compensation sought by the respondent. Under s13 of the Criminal Law (Sentencing) Act 1988, the court must not make an order requiring a defendant to pay a pecuniary sum if the court is not satisfied that the means of the defendant, so far as is known to the court, are such that the defendant would not be able to comply with the order.

6. In this case the appellant gave evidence on oath to the Magistrates’ Court as to his means, and at the time of giving evidence the fact that he was unemployed and on a disability pension.  He described himself as having a mental disability, one for which he was undergoing treatment.  He had been receiving a disability pension for, approximately, 12 months.  Prior to that time he was in receipt of unemployment benefits.  He had been unable to obtain employment for a period of approximately four years.  He has described himself as a manual labourer. 

7. At the time of the hearing in the Magistrates’ Court, the appellant was in receipt of $350 per fortnight by way of salary.  He said that he did not have assets of any kind and that he was an undischarged bankrupt. 

8. During the course of submissions on penalty, counsel for the respondent placed before the court a letter dated 27 July 1988 from the Department of Human Resources.  The report indicated that the appellant was a client of the Department's financial counselling service.  A letter confirmed that he was the recipient of a disability support pension as his only income was $313 per fortnight after repaying an advance to Centrelink at the rate of $38 fortnightly.  His average fortnightly expenditure was said to be $350, so that to make ends meet he would need to cut expenditure on some items from time to time. 

9. There was some argument from the bar table to the effect that the defendant could make payments to meet the penalties and compensation involved in this matter but in my view the difference between what he receives and what he is required to pay for necessities is too fine. 

10. In the circumstances the ordering of the payment of a pecuniary sum is inappropriate because it was clear that the appellant had no means of paying it: Criminal Law (Sentencing) Act 1988, s13.

11. There is no evidence before me of any previous convictions, and I note that the learned Magistrate did not refer to such convictions in his remarks on penalty.  I must assume that the offence in question is the appellant's first. 

12. In the circumstances I allow the appeal and set aside the payment of all pecuniary sums.  In lieu thereof, there will be an order that the appellant perform 80 hours of community service within six months of today's date and until such time as he has worked the required number of hours, and that he obey all lawful directions of the Community Service Officer to whom he is assigned.  The appellant is to report to the office of Correctional Services at 8 Gaelic Road, Holden Hill, within two working days of today's date.