HILL v Police
[2009] SASC 308
•1 October 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HILL v POLICE
[2009] SASC 308
Judgment of The Honourable Justice White
1 October 2009
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - FAILURE TO STOP, RENDER ASSISTANCE, GIVE INFORMATION OR REPORT TO POLICE AFTER ACCIDENT
Appellant consumed a quantity of alcohol and drove a car with three other occupants - car rolled, injuring all four occupants - on the approach of the ambulance and/or police appellant fled from scene of accident - emergency services personnel conducted search for appellant - appellant surrendered to a police station the next day - appellant charged with and pleaded guilty to an offence against s 43(1) of the Road Traffic Act 1961 (SA) - Magistrate sentenced appellant to imprisonment for nine months, five months of that sentence to be suspended upon appellant entering into bond to be of good behaviour - appeal against sentence of imprisonment imposed by Magistrate.
Held: s 43(1) creates one offence which can be committed in a number of ways - appellant breached s 43(1) only in his failure to report to the police - appellant's conduct reprehensible, as it was motivated by a desire to avoid prosecution for a drink driving offence - although offence committed by appellant serious, it was not so culpable that it amounted to a serious offence of its kind - Magistrate erred in characterising offence as a serious one of its kind - expense and inconvenience of investigating authorities caused by offence properly to be taken into account in sentencing for an offence against s 43(1) - penalties applicable for offences for which appellant may have been prosecuted had he surrendered to police within the time allowed by s 43(1) properly to be taken into account in sentencing for an offence against s 43(1) - personal and general deterrence important considerations in sentencing for offences against s 43(1) committed in circumstances of the kind under consideration - appeal allowed and appellant re-sentenced in respect of s 43(1) offence.
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - RECOGNISANCES - BREACH - CONSEQUENCES OF
Offence against s 43(1) amounted to a breach of a bond to be of good behaviour previously entered into by appellant - Magistrate ordered that bond be revoked - appeal against order of Magistrate that appellant pay part of the amount of the bond.
Held: Magistrate could not have been satisfied that appellant able to pay amount ordered in accordance with s 58(2) of the Criminal Law (Sentencing) Act 1988 (SA) - order that appellant pay part of amount of bond set aside.
Criminal Law (Sentencing) Act 1988 (SA) s 58(2); Liquor Licensing Act 1997 (SA) s 131A(1); Road Traffic Act 1961 (SA) s 43(1), s 43(3), s 45(1), s 47, s 47B; Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA) s 18; Summary Offences Act 1953 (SA) s 6(2), referred to.
Fitzgerald v Police (2000) 113 A Crim R 413, distinguished.
Mallan v Berry [1964] SASR 8, discussed.
HILL v POLICE
[2009] SASC 308Magistrates Appeal
WHITE J: This is an appeal against a sentence imposed in the Magistrates Court in Mount Gambier.
On 1 November 2008, the appellant committed the offences of failing to leave licensed premises when required to do so[1] and resisting police.[2] He appeared in the Magistrates Court for these offences on 16 December 2008 and was discharged without conviction on either offence upon entering into a bond in the sum of $500 to be of good behaviour for a period of 18 months. It was a condition of that bond that, if called upon to do so following a breach, the appellant was to appear for sentence for the offences committed on 1 November 2008.
[1] Contrary to s 131A(1)(a)(ii) of the Liquor Licensing Act 1997 (SA).
[2] Contrary to s 6(2) of the Summary Offences Act 1953 (SA).
Regrettably, some nine days later, the appellant did commit an offence which he acknowledged amounted to a breach of the obligation to be of good behaviour. During the afternoon and early evening of Christmas day, the appellant had driven with some friends to the swimming lake on Main Street, Millicent. Both before going to the lake, and while there, the appellant consumed alcohol. On the return journey, at about 7.00 pm, the appellant drove his Suzuki 4-wheel drive vehicle along Belt Road. He had three passengers with him. His car failed to take a bend and rolled over, resulting in injuries to all of the occupants. The car finished on its wheels and one of the occupants noticed that the appellant was slumped over the steering wheel. It was difficult for the occupants to extract themselves from the car.
It seems that one passenger, Mr Atkins, provided assistance to the other passengers. The extent to which the appellant was involved is unclear. At 7.06 pm, Mr Atkins used a mobile telephone to seek emergency assistance. While the group was waiting a passing car stopped and the occupants of that car also lent assistance. At about 7.10 pm an ambulance arrived and shortly after that a police officer attended at the scene.
However, at a time when the siren of the first approaching emergency service vehicle could be heard, and just before it came into view, the appellant told Mr Atkins that he was “going to go”. Taking with him a mobile telephone given to him by another of his passengers (Mr Rowlands), the appellant then walked away from the scene of the rollover into some adjacent thick scrub. By the time the police arrived he was out of sight.
The police organised a search to locate the appellant. The search commenced at 7.45 pm and continued for about one and a quarter hours until it became too dark. It involved 20 CFS members and 10 SES members. The appellant was not located.
On the morning of 26 December 2008, the appellant telephoned his sister and arranged for her to pick him up from a location close to where the rollover had occurred. At about 11.30 am on that same day, the appellant attended at the Millicent Police Station. He was advised to attend a hospital to get treatment for his injuries.
The appellant was interviewed by the police on 29 December. He told the interviewing officer that his last memory before the rollover was of driving along Belt Road and that his next memory was that of waking up on the ground at a friend’s house. The appellant attributed his loss of memory to striking his head on the windscreen of the Suzuki during the course of the rollover. He claimed that he did not know the friend’s name (because he did not know him well), and could not give the address of the friend’s home beyond saying that it was in Millicent. The Magistrate did not accept that account.
The Sentence of the Magistrate
The appellant was charged with two offences. The first was a contravention of s 43(1) of the Road Traffic Act 1961 (SA) (RTA). The charge in the Information was expressed as follows:
[The Defendant] On the 25TH day of DECEMBER, 2008 at MILLICENT in the said State being the driver of a vehicle namely SUZUKI STATION WAGON (SA) VXF-732 involved in an accident in which a person is INJURED did not immediately stop the vehicle; give all possible assistance, and not more than 90 minutes after the accident, present HIMSELF to a member of the police force at THE SCENE OF THE ACCIDENT OR A POLICE STATION for the purpose of providing particulars of the accident and submitting to any requirement to undergo a test relating to the presence of alcohol or a drug in HIS blood or oral fluid. [Capitals in the original]
The second offence was that of driving without due care, contrary to s 45(1) of the RTA.
The appellant pleaded guilty to both of those offences. He acknowledged that the contravention of s 43(1) of the RTA constituted a breach of the obligation to be of good behaviour contained in the bond into which he had entered on 16 December 2008.
The Magistrate revoked the bond and ordered the appellant to pay part of the amount of the bond, namely $300. He sentenced the appellant for the two offences committed on 1 November 2008. In respect of the offence of failing to leave licensed premises when required to do so the Magistrate imposed a fine of $100. For the offence of resisting police, he imposed a fine of $350.
The Magistrate then sentenced the appellant for the two offences committed on 25 December 2008. He considered a sentence of imprisonment to be appropriate for the s 43(1) offence. The Magistrate took as a starting point a sentence of imprisonment for 12 months but reduced that to nine months on account of the appellant’s plea, his age, his limited prior offending and what he described as the appellant’s “personal circumstances”. The Magistrate declined to suspend the whole of that sentence. He required the appellant to serve four months of the nine months in custody but directed that the balance of five months be suspended upon the appellant entering into a bond in the sum of $500 to be of good behaviour for a period of five months. The bond included other conditions including conditions that the appellant obey directions given to him by the Department of Correctional Services concerning participation in counselling or other programs concerning alcohol abuse and that he abstain wholly from the consumption of alcohol. The Magistrate also imposed a licence disqualification of 18 months.
With respect to the driving without due care offence, the Magistrate imposed a fine of $400 without any additional licence disqualification.
The appellant was released from custody on 19 August 2009 pending the hearing of this appeal.
Submissions on Appeal
The Notice of Appeal contained numerous grounds but not all were pressed at the hearing. The appellant argued four matters.
First, he submitted that the Magistrate had been wrong in regarding his s 43 offence as a serious offence of its kind. In particular, he submitted that the Magistrate had overlooked that he had stopped at the scene of the rollover for some time; that he had been wrong in regarding the appellant as having been indifferent to the condition of his injured passengers; and that he had wrongly taken into account the search conducted for the appellant following his departure from the scene and the consequential disruption and inconvenience to the police, CFS and SES personnel who were engaged in the search for him.
Secondly, the appellant suggested that the Magistrate had been wrong in considering that the sentence for the offence under s 43 should reflect personal deterrence on account of his “prior drink driving”.
Thirdly, the appellant submitted that the Magistrate had overlooked his good record. Apart from the offences committed on 1 November 2008, the appellant’s only other previous conviction was for an offence of driving under the influence committed on 20 June 1997, more than 11 years before the offending on 25 December 2008.
Finally, the appellant submitted that the Magistrate had been wrong to require him to pay $300 of the $500 bond in addition to the fines which he imposed for the offences committed on 1 November 2008.
The Seriousness of the s 43 Offence
The view which the Magistrate took of the s 43 offence appears in the following part of his sentencing remarks:
[43]In court you claim loss of memory of the events after leaving the car. You do not deny that you do recall being at the accident scene and appreciating that people were injured and appreciating that you heard the sirens of the approaching ambulance and possibly police and you recall then that you decided you were going to leave the scene of the accident and took with you a mobile phone. You say now that you had some concern for those victims, not leaving until you could hear the sound of sirens and that help was seemingly at hand. Basically you abrogated your responsibility towards them and simply left them in the hands of others who were also injured and hoping that the sirens that you heard were an ambulance and that help for them was at hand. You took with you Mr Rollands’ mobile phone and you deliberately and wilfully walked off into the bush well knowing that the police would be wanting to speak with you and you admit well knowing the concerns you had for drinking and driving.
…
[45]You have a prior conviction for drink driving. You were aware of the sorts of penalties that apply. You were aware you were drinking that afternoon. You were aware and it was plain to see before you that the people that were in the car with you had been injured. In my view you left the accident scene to avoid the testing for consumption of alcohol. This was the primary reason. …
…
[48]Your conduct was reprehensible, motivated by pure self-interest. I don’t consider it meritorious or mitigatory your submission that you left the injured to their own devices when you heard the sirens believing that some assistance was at hand. I have little doubt that [it] also crossed your mind that the sirens could have been the police.
[49]You caused concern for your family overnight. They were fearful of your circumstances. You caused inconvenience and trouble to the police and the volunteer CFS who insidiously searched until dark through bush to assist you. In my view this was a serious offence of its kind.
[50]I can see that there might well be more serious offences of this kind but that does not deny that this is a serious offence.
In considering whether the appellant’s offence against s 43 was a serious offence of its kind, it is appropriate first to identify the ways in which s 43 of the RTA may be breached. The driver of a vehicle involved in an accident in which a person is killed or injured may contravene s 43 by failing to stop his or her vehicle immediately after the accident; or, having stopped, by failing to give all possible assistance; or by failing to present himself or herself to a police officer at the scene or at a police station for the purpose of providing particulars and submitting to a blood alcohol test within 90 minutes after the accident has occurred; or by a combination of this conduct. It is not necessary for the prosecution to prove a contravention of all three obligations contained in s 43(1) in order to make out the commission of the offence.
This is consistent with the view taken of s 43 in its earlier forms. In Mallan v Berry,[3] Mayo J described the obligations in the then current from of s 43 as being “several”.[4] In Fitzgerald v Police[5] Mullighan J took the view that s 43, in its former form, created separate offences. He said:
A driver may stop after an accident but not render assistance to an injured person. A person may render assistance by calling for medical or police assistance or an ambulance which may be adequate in the circumstances, but not stop. The appellant, having committed both offences, was to be sentenced upon each of them. …[6]
[3] [1964] SASR 8.
[4] Ibid at 10.
[5] [2000] SASC 168; (2000) 113 A Crim R 413.
[6] Ibid at [20]; 418.
Section 43(1) has been substantially in its present form since 30 July 2006.[7] As indicated above, I regard it as creating the one offence which can be committed in a number of ways. I am confirmed in that view by the manner in which the defences contemplated by s 43(3) are expressed.
[7] Section 18 of the Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA).
In the present case the appellant did stop immediately after the accident. The stopping may have been involuntary, by virtue of the car having rolled over, but the appellant did stop. In addition, he remained at the scene for a sufficient period of time such that it could not be concluded that he had not stopped as required by s 43(1)(a). Further, while the extent of the activity of the appellant while he remained at the scene is unclear, it would be difficult to conclude that he failed to give all possible assistance. Attention had been given to each of the other injured persons, whether by the appellant or by other occupants. A passing car had stopped and the occupants of that vehicle were lending assistance. In addition, emergency service vehicles had been called and were on their way. The appellant left the scene only a minute or two before an ambulance arrived. It is not easy to see what further assistance could have been given.
This means that the conduct of the appellant contravening s 43(1) lay in his failure to present himself to the police within 90 minutes of the rollover. That conduct was reprehensible as it was motivated by the appellant’s desire to avoid investigation and prosecution for a drink driving offence. There are other aspects of the appellant’s conduct to which I will return shortly which also indicate that his conduct was to be regarded seriously. It was much more serious than if his failure to present himself to the police had resulted from inadvertence or for some good reason. But on the other hand, there are some contraventions of s 43(1) which involve much greater culpability than that of the appellant. There are, unfortunately, cases which come before the court in which drivers, who must know that they have been involved in collisions in which death or serious injury has been caused, fail to stop altogether, fail to provide any assistance at all, fail to call assistance and take active steps to frustrate a police investigation by leaving the scene and hiding themselves. The appellant’s offending cannot be likened to contraventions of that kind.
I appreciate that the categorisation of a particular offence on a scale of seriousness for offences of that kind can be difficult and that there is considerable scope for reasonable minds to reach different conclusions. However, given that the appellant contravened only one of the obligations contained in s 43(1), and given the comparison of his offence with other offences of its kind, it cannot be said, in my respectful opinion, that this offence was one of the more serious offences of its kind The Magistrate was correct to consider that the appellant’s conduct was to be regarded seriously but, in my opinion, the appellant’s conduct was not so culpable that the offence should be regarded as a serious one of its kind. In this respect the Magistrate’s assessment of the appellant’s culpability appears to have been too severe.
The Magistrate considered that the appellant had been indifferent to the plight of his injured passengers and that, by leaving the scene, he had abrogated his responsibilities to them. The Magistrate regarded this feature as aggravating the commission of the s 43(1) offence.
On the hearing of the appeal, I received an affidavit from the police prosecutor who had appeared before the Magistrate. The prosecutor deposed that he had used the details contained in the Police Apprehension Report as the basis for his submissions on penalty. I have read the Police Apprehension Report which the prosecutor exhibited to his affidavit. I do not regard that report as indicating indifference by the appellant to the injuries of his passengers, or an abrogation of his responsibility to them.
On the contrary, as already noted, the appellant remained at the scene of the rollover while assistance was given, including by the occupants of a passing car, and while an ambulance was summonsed. It does not seem that any of the injuries to the passengers could reasonably have been regarded at the time as life threatening. The accident occurred close to the township of Millicent and it did not take long for the emergency service vehicles to arrive. The appellant decamped only when the sound of the approaching emergency services vehicles could be heard.
The Magistrate appears to have attached significance to the response made by Mr Atkins when the appellant told him that he was leaving. It is not necessary to quote that response. In my opinion, its meaning is equivocal.
I consider that the appellant has made good his submission that, in this respect, the Magistrate took an adverse view of his conduct which was unwarranted.
The appellant also submitted that the Magistrate had had regard, inappropriately, to the consequences of his offence, and in particular, “the inconvenience and trouble” to the police, CFS and SES personnel who had participated in the search for him. In my opinion, this aspect of the appellant’s submissions should be rejected.
It is usual for the consequences of an offence to be considered in the sentencing, and it would be surprising if they were not. In the present case, the evident purpose of s 43(1)(b) is to facilitate an investigation by the police of the circumstances of an accident and whether the driver has committed a drink driving offence. When a person fails to comply with the s 43(1)(b) obligation, it is likely that the police will be put to the expense and inconvenience of an investigation and search which would otherwise have been unnecessary. That expense and inconvenience is a matter to which it is appropriate to have regard when a court sentences for a s 43(1) offence.
In the present case, the Magistrate considered that the appellant had left the scene of the rollover with a view to avoiding police investigation of his blood alcohol content. It was not suggested on the appeal that the Magistrate’s conclusion in that respect was wrong. It must have been obvious to the appellant, in that circumstance, that a search may be made for him. Indeed, it seems inevitable that the appellant must have been aware of the search which was in fact conducted. The appellant’s conduct had the consequence that the enjoyment of Christmas Day by more than 30 emergency service personnel was interrupted.
The fact of the search is relevant to the assessment of the moral culpability of the appellant in at least two ways. First, there is the matter already mentioned, namely, the considerable diversion of law enforcement and emergency services personnel which the appellant’s conduct caused. Secondly, although the appellant must have been aware of the search, he did not reveal his whereabouts or identify his position at any stage. The appellant’s conduct in failing to present himself to the police within the stipulated period of 90 minutes cannot be attributed to a spontaneous ill-advised decision which, once made, could not be altered. The appellant had time to reflect on the circumstances and yet, knowing of the search made for him, did not volunteer his location. That adds to his culpability.
The Magistrate was right to have regard to the consequences for the searchers resulting from the appellant’s conduct.
In the two respects which I have identified, I uphold the appellant’s submission regarding the Magistrate’s assessment of the seriousness of the offence.
Deterrence for Prior Drink Driving
The Magistrate said:
It seems to me that there is a need to impose a penalty that will be a personal deterrent to you [given] your prior drink driving in this matter and there are very powerful reasons for imposing a penalty that will be a general deterrence to others that might be tempted … having been involved in an accident and injuring other people and then leave the scene to avoid their own responsibilities and leave the injured to their own resources.
It is apparent that in the first part of this passage, the Magistrate considered that the sentence should operate as a personal deterrent to the appellant given his prior drink driving.
If the Magistrate meant that the appellant was to be punished for drink driving on 25 December, that would have been an error. Deterrence against drink driving is not material in fixing a sentence for the offence of leaving the scene of an accident. In the ordinary case, the sentence for this offence should instead deter both the particular defendant and drivers generally against breaching the obligation to present themselves to the police if they have been involved in an accident causing death or injury to others.
However, I do not understand the Magistrate to be making the error imputed to him in the appellant’s submissions. Instead, he was saying that the s 43(1) sentence had to reflect both personal and general deterrence. Personal deterrence was particularly important in the appellant’s case because it was his consumption of alcohol on 25 December before driving which had caused him to leave in order to avoid a police investigation of his possible (perhaps probable) commission of a drink driving offence. It was part of the Magistrate’s explanation of why the sentence he was imposing was to be at least as severe as that which the appellant would have received had he stayed at the scene, cooperated with the police, and then been prosecuted for a drink driving offence.
Accordingly, I reject this submission.
Previous Record
Despite the appellant’s submissions, I am not satisfied that the Magistrate overlooked the positive aspects of his antecedent history. The Magistrate referred expressly on two occasions to the appellant’s previous driving under the influence offence. In addition, the Magistrate had also sentenced the appellant on 16 December 2008. It is reasonable to suppose that he was well familiar with both the positive and adverse aspects of the appellant’s record. I reject this submission.
The Order for Payment of the Bond
The Magistrate ordered the appellant to pay $300 of the amount of the $500 bond. He said that he made the reduction “by reason of looking at the totality of the monetary penalty arising out of this file”.
The Magistrate did not refer at all to s 58(2) of the Criminal Law (Sentencing) Act 1988 (SA). Section 58(2) provides:
(2)The court may not order a person to pay an amount pursuant to subsection (1)(a) unless the court is satisfied—
(a) that the person has, or will within a reasonable time have, the means to pay the amount; and
(b) that payment of the amount would not unduly prejudice the welfare of dependants of the person.
It can be seen that s 58(2) required the Magistrate to be positively satisfied that the appellant either had, or would within a reasonable time have, the means to pay the sum of $300.
The Magistrate was told that the appellant was single and living at home with his parents. His usual work was that of a roof plumber but he had been finding it difficult to obtain work. At the time that he was sentenced on 25 May 2009 he was unemployed and in receipt of unemployment benefits. There was no other material before the Magistrate as to the appellant’s means.
The Magistrate imposed fines of $100 and $350 in respect of the two offences committed on 1 November 2008 and a fine of $400 in respect of the offence of driving without due care on 25 December 2008. In addition, he ordered the appellant to pay costs and levies in relation to the two sets of offending totalling $726.50.
The effect of the Magistrate’s sentence of imprisonment was that it would be at least four months before the appellant would be able to engage again in the paid workforce.
Having regard to all those matters, I consider that it was not open to the Magistrate to be satisfied that the appellant had, or would within a reasonable time have, the means to pay the sum of $300 in respect of the breach of the bond. Accordingly, the appeal against that order should be allowed. I will set aside wholly the order concerning the payment of the sum of $300.
Re-sentence of the Appellant
For the reasons given earlier, I agree with the Magistrate that considerations of personal and general deterrence are particularly important in the case of s 43(1) offences of the present kind. Both the appellant, and drivers generally, should be deterred from ignoring the obligation to present themselves to the police within 90 minutes of an accident in order to facilitate the police investigation, including an investigation of whether a drink driving offence has been committed.
In the present case, the appellant left the scene of the rollover in order to prevent the police from making an assessment of his sobriety and from gaining evidence which could be used in a prosecution for a drink driving offence. That makes it appropriate, in my opinion, to have regard to the sentences which could have been imposed upon the appellant had he been prosecuted for the offence of driving under the influence (s 47 of the RTA) or of driving with the prescribed concentration of alcohol (s 47B of the RTA).
Under each of s 47 and s 47B, the appellant would have been sentenced as a first offender. That is because his previous offence of driving under the influence was committed more than five years before 25 December 2008. If the appellant had been prosecuted under s 47(1) he would have been liable to a fine of between $700 and $1,200 or imprisonment for not more than three months. If he had been prosecuted for a Category 3 offence under s 47B, that is, an offence involving the highest blood alcohol concentration, he would have been liable to a fine in the same range. In each case, the Court would also have been required to disqualify him from holding or obtaining a driver’s licence for a period of at least 12 months.
For a s 43(1) offence, the maximum penalty which a court may impose is imprisonment for five years. In addition, unless the court considers that the offence is trifling, it must impose a licence disqualification for a period of at least one year.
The appellant is now 30 years of age. Generally speaking his record is good, but he does have the drink driving offence committed in 1997 which was noted earlier, in addition to the offences committed on 1 November 2008.
It is an aggravating feature that the offence on 25 December 2008 was committed only nine days after the appellant had entered into a bond to be of good behaviour. I have already referred to the considerable disruption to Christmas Day for several families which the appellant caused by leaving the scene and remaining hidden. So far as I can tell, there has not been any expression of regret by the appellant for the disruption and inconvenience which he caused.
Despite these features, if I had been sentencing completely afresh there would have been a question in my mind as to whether a sentence of imprisonment to be served immediately was appropriate in this case. I may have considered other sentencing options, including means of requiring the appellant to address the consequences of his alcohol consumption. However, I am not able to sentence completely afresh as account must be taken of the fact that the appellant has now spent just on three months in custody (from the time of sentence on 25 May 2009 until his release on bail pending the appeal on 19 August 2009).
Having regard to all the circumstances, I consider that the period of just on three months in custody already served by the appellant is a sufficient penalty for the s 43(1) offence in this case. When allowance is made for a reduction on account of the appellant’s guilty plea, it represents a starting point of imprisonment for about four months. That starting point exceeds the maximum period of imprisonment which could have been ordered for a first driving under the influence offence. It is well less than the maximum period of imprisonment which could have been ordered under s 43(1) but, for the reasons given earlier, I do not consider that the appellant’s offence is to be regarded as at the upper end of seriousness for offences of this kind.
Conclusion
For the reasons given above, the appeal should be allowed. I set aside the order that the appellant be imprisoned for nine months and the consequential orders relating to the partial suspension of that term of imprisonment. In lieu thereof, I order that the appellant be sentenced to imprisonment for a period of two months and 25 days, being the period served in custody by the appellant from 25 May 2009 to 19 August 2009.
In all other respects, the orders made by the Magistrate with respect to the offences committed on 25 December 2008 are to stand.
In relation to the breach of the bond, I set aside the order that the appellant pay the sum of $300. I will make no order in lieu thereof.