Gordon v Police - [2012] SASC 97

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GORDON v POLICE
[2012] SASC 97
Judgment of The Honourable Justice Stanley
14 June 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS
Appellant convicted of two counts of assault, two counts of assaulting member of police force in execution of his duty, one count of behaving in disorderly manner, and one count of being responsible for control of dogs that harassed others (count 1) - appellant placed on good behaviour bond for 12 months and ordered to pay prosecution's costs and Victims of Crime levy - appellant appeals against order for costs and levy and conviction for dog offence - whether complaint for count 1 was statute barred - whether magistrate failed to take into account appellant's financial situation - whether magistrate erred in failing to have regard to delay in proceedings when imposing costs - where respondent admits miscalculation of costs.
Held: Appeal allowed, setting aside conviction for count 1, setting aside sentence and re-sentencing - magistrate correctly addressed principles for imposition of costs - magistrate did not err in iposing levy - conviction for count 1 is wrongful, complaint was statute barred - accordingly levey is adjusted, sentence imposed is set aside and appellant is re-sentenced - appellant placed on $400 bond to be of good behaviour for nine months subject to conditions - appellant to pay respondent's costs in sum of $1,395 - appellant to pay Victims of Crime levy of $800 - appellant to pay costs and levy within 28 days.
Dog and Cat Management Act 1995 (SA) s 44(2); Summary Procedure Act 1921 (SA) s 52(1)(a)(ii), s 189(1); Victims of Crime (Fund and Levy) Regulations 2003 (SA) Sch 1; Magistrates Court (Fees) Regulations 2004 Sch 2; Victims of Crime Act 2001 (SA) s 32(2)(a), s 32(7)(b); Criminal Law (Sentencing) Act 1988 (SA) s 70I, referred to.
Schloithe v Police [2011] SASC 156, discussed.
Tkachenko v Police [2012] SASC 79, considered.

GORDON v POLICE
[2012] SASC 97
Magistrates Appeal
STANLEY J:
Introduction

The appellant, Mr Gordon, was convicted, after a trial in the Adelaide Magistrates Court, of two counts of assault, two counts of assaulting a member of the police force in the execution of his duty, one count of behaving in a disorderly manner and one count of being responsible for the control of dogs that harassed others.
He was placed on a bond in the sum of $400 to be of good behaviour for a period of twelve months. The Court imposed a Victims of Crime levy in the sum of $960 and made an order that Mr Gordon pay the prosecution’s costs in the sum of $1,760 inclusive of GST. He was given 28 days to pay the costs and the levy.
Mr Gordon appealed against the costs and levy orders.
At the hearing of the appeal Mr Heitmann, counsel for the respondent, very properly brought to the Court’s attention the fact that Count 1, in respect of which the appellant had been convicted, alleged a contravention by the appellant of s 44(2) of the Dog and Cat Management Act 1995 (SA) (“the Dog and Cat Management Act”). The offence was alleged to have occurred on 1 December 2009. The complaint was laid on 21 July 2010. Section 44(2) of the Dog and Cat Management Act is an expiable offence. An expiation notice in respect of this offence was not given to the appellant. Pursuant to s 52(1)(a)(ii) of the Summary Procedure Act 1921 (SA) (“the Summary Procedure Act”) proceedings had to be commenced within six months of the date on which the offence is alleged to have been committed. This did not occur. Accordingly, the complaint was statute barred. It appears this fact escaped the attention of the prosecutor at trial and the learned magistrate.
I granted permission to the appellant to amend his notice of appeal to appeal against his conviction on this count. This was not opposed by the respondent.
Grounds of appeal
The amended grounds of appeal firstly complain that the appellant’s conviction for a contravention of s 44(2) of the Dog and Cat Management Act is wrongful as that complaint was statute barred.
The grounds of the appeal in relation to the order for costs and the Victims of Crime levy are that the appellant is a disability pensioner who suffers from several medical conditions, the treatment for which is costly, and that the learned magistrate erred in failing to recognise that the appellant cannot afford to pay the costs and levy when he made the orders the subject of this appeal. In addition the appellant complained that the learned magistrate erred in making an order for costs and imposing the levy because of the delay in prosecuting the matter.
Reasons for decision
In sentencing, the learned magistrate, having convicted Mr Gordon and placed him on a $400 bond to be of good behaviour for 12 months, turned to the question of costs, and said:[1]
In addition to that, I have an application for costs and I consider that really it was unfortunate this trial went ahead and that the prosecution has been put to much expense and trouble in proving these charges. It is appropriate as the successful party that the prosecutor receives an order in their favour to compensate for these costs. I also accept that the defendant is on a limited income (disability income) that must be considered. However, arrangements can be made to pay the costs order over a period of time out of that pension. I accordingly make an order that the defendant pays the Complainant’s costs, which I set at $1,760. I waive the court fee to balance that out slightly. Levies are to apply.
[1] Police v Gordon, unreported, Mr K Boxall SM, 16 March 2012 at [17].
As indicated, the Victims of Crime levy imposed was $960 (see Victims of Crime (Fund and Levy) Regulations 2003, Schedule 1).
The Court fee waived by the learned magistrate was $223.50 (see Magistrates Court (Fees) Regulations 2004, Schedule 2).
Consideration
The appeal against conviction for a breach of s 44(2) of the Dog and Cat Management Act must succeed. The complaint was statute barred for the reasons set out above. This was conceded quite properly by Mr Heitmann, counsel for the respondent.
In my view the appeal in relation to the order for costs and the imposition of the levy also must succeed, but only on limited bases.
It is convenient to deal first with the appellant’s submission in relation to what he described as the “fine” of $960. In fact, his complaint relates to the imposition of the Victims of Crime levy in that amount.
This ground of appeal is misconceived. Section 32(2)(a) of the Victims of Crime Act 2001 (SA) provides that a Victims of Crime levy is imposed on all persons convicted of offences subject, relevantly, to any exception prescribed by the Regulations. The Regulations do not provide any relevant exception in this case. Section 32(7)(b) provides that if a 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. As Gray J explained in Tkachenko v Police,[2] a court has no discretion to waive or reduce the victims of crime levy at the time of imposing a sentence or conviction. The recording of the imposition of the levy is an administrative duty performed by the Court. It is an administrative act, not a judicial act. The levy can only be remitted or varied by a Court on review, as provided for in s 70I of the Criminal Law (Sentencing) Act 1988 (SA). This is not such a review. However, that administrative act is conditional upon a judicial act, namely, the entry of a conviction or the imposition of a sentence.
[2] [2012] SASC 79.
The appellant cannot demonstrate any error on the part of the learned magistrate in undertaking the administrative act of imposing the Victims of Crime levy subject to one matter. The appeal against conviction for a breach of s 44(2) of the Dog and Cat Management Act has succeeded. As a result, the Victims of Crime levy that should have been imposed is $800 not $960 because, pursuant to Schedule 1 of the Victims of Crime (Fund and Levy) Regulations 2003 the amount of the levy in respect of a summary offence, where the offence has not been expiated, is $160. The levy should have been imposed in respect of five offences not six. This is an error capable of being corrected on appeal.
The appellant has failed to identify any error in the exercise of the Court’s discretion in making an order for costs, however, the amount of those costs is another matter.
Section 189(1) of the Summary Procedure Act vests the Magistrates Court with a general discretion with respect to costs. It provides:
Subject to this section, the Court may award such costs for or against a party to proceedings as the Court thinks fit.
As White J said in Schloithe v Police:[3]
In short, s 189(1) vests a wide and general discretion with respect to costs in a Magistrate. That general discretion is not qualified in any way which is material to the present appeal by any of the other provisions in s 189. The discretion is, of course, to be exercised in accordance with the law and in accordance with settled principles regarding an award of costs, including the principle that ordinarily a successful party is entitled to an award of costs in his or her favour. In the exercise of that general discretion a Magistrate may, when appropriate, award a successful defendant, some or all of his or her costs, or make no order as to costs.
[3] [2011] SASC 156 at [12].
In Schloithe[4] his Honour further explained the principles to be applied in the determination of an appeal against a costs order. His Honour said:[5]
An appeal against a decision on costs is an appeal against an exercise of a general discretion. On such appeals an appellate court intervenes only in the circumstances identified in House v The King, that is to say, it is necessary for the appellant to identify some error in the exercise of the discretion, for example, by the Magistrate having failed to take into account a relevant matter or having taken into account an irrelevant matter, or to establish that the exercise of the discretion was so unreasonable or unjust as to require appellate intervention.
(Footnote omitted).
[4] [2011] SASC 156.
[5] [2011] SASC 156 at [13].
The appellant appeals against the costs order on two bases. First, that the learned magistrate erred in making the subject order in circumstances where the appellant was suffering from medical conditions, the treatment for which incurred certain expenses which meant that he could not afford to pay any costs order. Second, on the basis the learned magistrate erred in failing to have regard to the delay in prosecuting the complaint.
Before the learned magistrate, counsel for Mr Gordon submitted that her client was on the disability support pension which provides about $573 per fortnight. She further submitted that this was a factor that should be weighed by the learned magistrate in deciding whether or not to make an order of costs, and if so, the amount of any such order, having regard to the fact that her client’s income was “not a lot” and that living was “not cheap at the moment”. That submission was made against a background that Mr Gordon suffered from a number of health problems including a cleft palate and an injury to his hip joint.
Relevantly, no mention was made of any particular medical expenses which had been incurred or were anticipated to be incurred by the appellant.
The appellant has not demonstrated any error in the exercise of the learned magistrate’s discretion. Particularly, he has not demonstrated a failure to take into account a relevant matter. Plainly, the learned magistrate had regard to the appellant’s limited income and his health issues. He could not be criticised for failing to have regard to specific health costs when no such submission had been put to him. On appeal, the appellant did not attempt to put any further evidence before the Court as to any costs of this kind.
On the contrary, the learned magistrate correctly addressed the principles relevant to making an order for the imposition of costs on an unsuccessful party at the conclusion of a contested trial. The trial took three days. It is to be borne in mind that the trial resulted in the appellant being convicted on every count with which he was charged. I will return to this subject in a moment given my conclusion that the conviction on the first count must be set aside.
The appellant also complained that the learned magistrate fell into error in ordering costs against him on the basis he failed to take account of the delay in prosecuting the matter, which he attributed to the police. There are three answers to this submission. First, counsel for the appellant at trial did not put this submission. It is too late to make the submission now. Second, in any event, any delay by the police in prosecuting the matter is not a relevant consideration in the exercise of the Court’s discretion in making an order in relation to the costs of the trial. Third, I am not satisfied that a proper basis has been established for the submission that there was delay in prosecuting the matter or, if there was, such delay was attributable to the police.
I do not consider that anything has been put which would satisfy me that the learned magistrate’s exercise of his discretion was so unreasonable or unjust as to require appellate intervention. I do not consider that the fact the appellant went to trial on a charge which was statute barred provides any basis to interfere with the order made as to costs. The evidence in relation to that matter would need to have been led in any event on the other charges. Even if I was exercising afresh the discretion in relation to awarding the costs of the trial, I would not have made any other order than that made by the learned magistrate. No error has been demonstrated save as to two matters relevant to the amount of the costs ordered.
Quite properly, counsel for the police have pointed out that an amount of $225 was erroneously claimed for proofing witnesses. The correct figure should have been $150. An arithmetical error also was made in the calculation of the costs claimed by the police before the learned magistrate. In the end result, the correct claim should have been $1,395. To this extent, the appeal must be allowed and the order made by the learned magistrate varied by setting aside that order and substituting an order for costs in the sum of $1,395. Otherwise, no error has been demonstrated in the quantification of the prosecutor’s claim for costs.
Conclusion
The appeal against conviction for a breach of s 44(2) of the Dog and Cat Management Act succeeds. I set aside that conviction. A single sentence was imposed in respect of the convictions recorded in respect of all six counts.
Accordingly, it is necessary to re-sentence the appellant.
As I have said, the appellant was convicted of two counts of assault, two counts of assaulting a member of the police force in the execution of his duty, one count of behaving in a disorderly manner and one count of being responsible for the control of dogs that harassed others contrary to s 44(2) of the Dog and Cat Management Act. The appellant was placed on a bond in the sum of $400 to be of good behaviour for a period of 12 months. The bond imposed certain conditions which I need not recite.
The count in respect of which the appeal against conviction has succeeded was the least serious of the charges in respect of which the appellant was convicted. In the circumstances, in exercising the sentencing discretion afresh, I would not disturb the sentence imposed. I consider the sentence remains appropriate in the light of the remaining convictions.
I allow the appeal for the purpose of setting aside the order as to the amount of costs for which the appellant is liable. I set aside the order that the appellant pay the respondent’s costs in the sum of $1,760. In lieu thereof I make an order that the appellant pay the respondent’s costs in the sum of $1,395. The learned magistrate’s recording of the imposition of the Victims of Crime levy of $960 was made in error because the levy was calculated on the basis of convictions in respect of six counts of summary offences. As the conviction in respect of one of those counts has been set aside, that order must be set aside. The levy to be imposed under the Victims of Crime Act 2001 (SA) is $800.
I make the following orders:
(1)    the appeal is allowed;
(2) the conviction in respect of the contravention of s 44(2) of the Dog and Cat Management Act is set aside and the count is dismissed;
(3)    the sentence imposed is set aside;
(4)    convictions are recorded on counts 2–6;
(5)    the appellant is re-sentenced and placed on a $400 bond to be of good behaviour for nine months subject to the following conditions:
(i)for a period of three months the appellant is to be under the supervision of a community corrections officer and obey that officer’s lawful directions;
(ii)the appellant is to attend programs and projects as directed; and
(iii)the appellant is to attend an anger management course as directed;
(6)    the order that the appellant pay the respondent’s costs in the sum of $1,760 is set aside;
(7)    the appellant is to pay the respondent’s costs of the trial in the sum of $1,395;
(8)    the order made for payment of the Victims of Crime levy of $960 is set aside;
(9)    the appellant is to pay a Victims of Crime levy of $800; and
(10) the time to pay the costs and levy is 28 days.
I will hear the parties further as to the costs of this appeal.