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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gordon v Police

Details

AGLC: Gordon v Police [2012] SASC 97
Case: [2012] SASC 97
Decision Date: 14 June 2012

CaseChat Overview and Summary

The appellant, Mr. Gordon, appealed against his conviction and sentence on several counts, including assault, assaulting a police officer, and being responsible for the control of dogs that harassed others. The appeal was heard in the Supreme Court of South Australia. The primary issues were whether the complaint for the dog offence was statute-barred, if the magistrate failed to consider the appellant's financial situation, and whether the magistrate erred in imposing costs due to a delay in the proceedings.

The court found that the complaint for the dog offence was indeed statute-barred, and thus the conviction for that count was set aside. The court also determined that the magistrate did not err in imposing the Victims of Crime levy, as it is an administrative duty that cannot be reduced or waived at the time of sentencing. However, the levy amount was adjusted to $800, as it should have been imposed in respect of five offences instead of six. The court noted that the magistrate correctly addressed the principles for the imposition of costs but erred in calculating the amount. The respondent admitted to a miscalculation in the costs, leading to an overestimation. The appeal in relation to the order for costs succeeded on this basis.

The court re-sentenced the appellant, placing him on a $400 bond to be of good behaviour for nine months, subject to certain conditions. The appellant was ordered to pay the respondent's costs in the sum of $1,395 and a Victims of Crime levy of $800, to be paid within 28 days. The court adjusted the levy amount and ordered the costs and levy to be paid within the specified timeframe.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.